Is the buyer responsible for the destruction of the pre-emptive share (shiqs) occurring in their possession?

General Chapter

Al-Mughni

Book of Preemption (Shuf'ah)

Book 23 · Issue 1 · Bab 1

Open in Qurani

Primary text

The destruction or partial destruction of the pre-emptive share while in the possession of the buyer is the buyer's liability, as the item was owned and destroyed while in their possession. If the pre-emptor wishes to proceed after partial destruction, they acquire the remaining part proportionate to their share of the purchase price. This applies whether the destruction occurred due to an act of God or the act of a human being, and whether it was by the buyer's choice, such as demolishing a building, or involuntarily, such as collapse. If the debris (anqad) of a destroyed building exists, the pre-emptor acquires the debris along with the land (aradah) according to their proportionate share. If the debris is gone, the pre-emptor acquires the land and whatever remains of the building. This is the apparent view of Ahmad, as narrated by Ibn al-Qasim, and it is the position of al-Thawri, al-'Unbari, Abu Yusuf, and one opinion attributed to al-Shafi'i. The evidence for this shared right rests on the inability of the pre-emptor to take the whole, thus permitting them to take what is available proportionate to the price, similar to cases where destruction was caused by a third party or where another pre-emptor exists. Furthermore, the pre-emptor takes a portion of what was included in the contract, and thus pays a proportionate price, just as if a sword were included with the property. The loss results from the destruction, in which the pre-emptor had no part, and the portion acquired by the pre-emptor is paid for, so the buyer suffers no harm from its acquisition.

Supporting text

A dissenting view, held by Abu Abdullah ibn Hamid, which is also one position of al-Shafi'i and the view of Abu Hanifa, states that if the destruction was due to an act of a human being, the pre-emptor proceeds as stated above. However, if the destruction was due to an act of God, such as the building collapsing on its own, fire, or flood, the pre-emptor may only acquire the remainder by paying the entire price or abandon the pre-emption right altogether. This distinction is made because if the defect results from a human action, its replacement value returns to the buyer, causing no detriment; but if it results otherwise, nothing returns to the buyer, and forcing acquisition would be detrimental, and detriment should not be removed by detriment.