Does a potential preemptor's prior statement signifying permission for sale or waiver of preemption before the sale occurs invalidate the subsequent right to preemption?
General Chapter
Al-Mughni
Book of Preemption (Shuf'ah)
Primary text
If the preemptor excuses the right to preemption before the sale, stating, 'I have permitted the sale,' or 'I have waived my preemption,' or similar statements, the right is not dropped, and he retains the ability to demand it whenever the sale occurs. This is the apparent position of the Madhhab, held by Malik, Al-Shafi'i, Al-Buti, and the Ashab al-Ra'y.
Supporting text
A narration attributed to Ahmad suggests that preemption is forfeited by such a statement. This view is supported by Al-Hakam, Al-Thawri, Abu Ubaid, Abu Khaithamah, and a group of Hadith scholars. The justification for forfeiture is derived from the principle that failing to take the share when offered implies no harm in the sale proceeding, eliminating the underlying reason for the right, which is protection against harm caused by the co-owner's poor conduct. Furthermore, waiving a right before it is fully established (before the sale) is invalid, analogous to forgiving a debt before it becomes due.