If the guardian of a minor does not exercise the right of preemption, must the minor wait until maturity to claim it?
General Chapter
Al-Mughni
Book of Preemption (Shuf'ah)
Primary text
If the guardian does not exercise the right of preemption, the minor awaits maturity to claim it, similar to waiting for an absent person. The opinion that waiting causes harm is invalid because the same concern applies to the absent person. Once established that the minor has the right, the apparent view of Al-Kharqi and the narration from Ibn Mansur on behalf of Ahmad indicates that the minor has the right to claim preemption upon reaching maturity, regardless of whether the guardian previously waived it or not, and whether there was benefit in exercising it or not. This view is held by Al-Awza'i, Zufar, and Muhammad ibn Al-Hasan, based on the principle that the entitled person possesses the right irrespective of whether it serves their immediate benefit, just as the absent person's right is not extinguished if their agent refrains from acting.
Supporting text
Abu Abdullah ibn Hamid states that if the guardian abandons the right for the benefit of the minor or because the minor lacks the means to acquire it, the right lapses. This is the apparent view of the Shafi'i madhhab, as the guardian acted within his mandate. If the guardian abandoned it for other reasons, the right does not lapse. Abu Hanifa holds that it lapses entirely if the guardian waives it, equating the guardian's power to that of a property owner who can freely dispose of or forgive rights. His two companions disagree, arguing that the guardian is waiving a right for the ward that offers no benefit to the ward, making it invalid like a release or waiving the option of return due to defect. Furthermore, the guardian cannot be analogized to the property owner because the owner can perform acts of charity and release, unlike the guardian in this specific context.