Does the pre-emptive buyer's (Shufi's) right of pre-emption (Shuf'a) lapse if the buyer reveals the price was higher than what was initially contracted, and the Shufi declines pre-emption based on the lower price?
General Chapter
Al-Mughni
Book of Preemption (Shuf'ah)
Primary text
The right of pre-emption does not lapse in this scenario. This view is held by Al-Shafi'i, the companions of Al-Ra'y (Hanafi school), and Malik. The reason is that the Shufi abandoned the right due to a valid excuse (usur), as he accepts the transaction at the lower price but not the higher one, and he might not possess the higher amount. This is analogous to abandoning the right due to lack of knowledge. Similarly, the right does not lapse if the buyer reveals the sold item was fewer shares (seham qaleelah) but turned out to be more, or if the transaction involved dinars but turned out to be dirhams, or vice versa. This is the position of Al-Shafi'i and Zufar. The evidence supports this, as the Shufi might be able to afford the original price but not the revealed, higher price.
Supporting text
Ibn Abi Layla stated that the Shufi has no right of pre-emption because he consented (salama wa radiya). Regarding the disparity between dinars and dirhams, Abu Hanifa and his companions stated that if their values are equal, the pre-emption right lapses because they are treated as a single category (jins wahid). Malik stipulated that the Shufi must swear an oath that the pre-emption right was only claimed because of the high price before it is affirmed.