Must the preempter seek judicial enforcement against the buyer to establish the sale in the buyer's regard?
General Chapter
Al-Mughni
Book of Preemption (Shuf'ah)
Primary text
Neither the preempter nor the seller is permitted to litigate against the buyer solely to establish the sale in the buyer's favor so that the warranty rests upon the buyer. This is because the seller's objective (the price) has been obtained from the preempter, and the preempter's objective (acquiring the share and securing the warranty) has been obtained from the seller. Thus, litigation serves no purpose.
Supporting text
A counterargument posits that if one claims a debt from a person, and another offers to pay that debt without litigation, the creditor is not obliged to accept. However, this analogy fails because in a debt, accepting from a non-debtor constitutes a favor (mennah), whereas here, the situation is different. Furthermore, the seller claims that the price paid by the preempter is the compensation due to the buyer for the sold property, making the seller a deputy for the buyer in paying the price, just as the seller is a deputy for the buyer in delivering the property, unlike in the case of a simple debt.