What happens to the right of preemption if the first claimant relinquishes his right?
General Chapter
Al-Mughni
Book of Preemption (Shuf'ah)
Primary text
If the first claimant abandons his preemption right, the right becomes fully available to his two partners. If one of them subsequently arrives, he has the right to take the entire property, as established previously. This applies also if the first claimant took the property and then returned it due to a defect (aib). This is the position held by Imam Shafi'i.
Supporting text
It is reported from Muhammad ibn al-Hasan that the right does not become fully available to the remaining partners, and the remaining partner cannot take the share of the first because the first claimant did not formally forgive (afa) the right; rather, he returned his share due to a defect, which is analogous to the share reverting to the buyer through a sale or gift. However, the argument against this is that the preemptor revoked his own ownership, and the property returned to the buyer via the original cause (preemption claim), thus allowing his partner to take it, similar to when he formally pardons; this differs from a return based on another cause, as that return concerns ownership other than the original one upon which preemption was established.