Does a claim of pre-emption (shufa'a) based on a partner's admission of purchase hold if the accused partner denies the purchase and claims inheritance?
General Chapter
Al-Mughni
Book of Preemption (Shuf'ah)
Primary text
If a claimant asserts that their partner purchased the partner's share from Amr, thereby establishing the right of pre-emption, and Amr confirms the sale, but the partner denies this and claims they inherited the share from their father, the pre-emption claim is not established if the claimant brings witnesses proving the share belonged to Amr. The basis is that the witnesses did not testify to the sale itself, and Amr's admission regarding the sale is not accepted against the denying partner because it is an admission concerning another person. Furthermore, Amr's testimony is not accepted against the denying partner, and pre-emption is not a right derived solely from the contract, meaning the statement of the seller is not sufficient.
Supporting text
Muhammad holds that pre-emption is established. He states that the denying partner must either pay the price and take the share, or return it to the original seller, allowing the pre-emptor to take it from the seller. This is because both Amr and the other witness testified to ownership by Amr, which is treated as testimony to the sale.