To whom does the guarantor's liability revert when a preempted property is found to have a defect?
General Chapter
Al-Mughni
Book of Preemption (Shuf'ah)
Primary text
If the preempted property is found to be defective, the preemptor may return it to the buyer or take the abatement of price (arsh) from the buyer. The buyer, in turn, returns it to the seller or takes the abatement from the seller, regardless of whether the preemptor took possession from the buyer or the seller. This position is held by Al-Shafi'i. The supporting evidence is that preemption is established subsequent to the purchase and the vesting of ownership in the buyer; ownership then transfers from the buyer to the preemptor upon payment of the price. Therefore, the liability rests upon the preemptor, similar to a resale transaction. Furthermore, since the preemptor acquires ownership through the buyer, he possesses the right to return the defective item to the buyer, just as the original buyer did in the first sale.
Supporting text
The opposing view states that the liability rests on the original seller because the right was established for the preemptor via the seller’s stipulation. Additionally, if the contract between the buyer and seller is nullified, the preemption right is voided because it was established based upon that contract.