What is the effect of the buying partner attempting to waive their right of preemption against the other claimant?
General Chapter
Al-Mughni
Book of Preemption (Shuf'ah)
Primary text
If the buying partner tells the other claimant, 'I have waived my right of preemption, so take all of it or leave it,' this is not binding, and the buyer's waiver is invalid. This is because the buyer's ownership of their share has already been established, and their action is treated like one of two preemptors taking their share and then one waiving their right in favor of the other. Similarly, if one preemptor takes the entire share upon arrival, and the second preemptor subsequently arrives, the second has the right to take half of what was taken. If the first preemptor then insists, 'Take all or leave it, as I have waived my right,' they cannot enforce this.
Supporting text
The objection that this constitutes dividing the transaction (tab'eed al-safqa) against the buyer is refuted by stating that this division is necessitated by the buyer's entry into the contract, which is treated as their consent to such a division, comparable to a present preemptor taking the whole item or a case where someone buys both a piece of property and a sword.