What is the right of the pre-emptor when a co-owner sells his share to three individuals in three separate transactions?
General Chapter
Al-Mughni
Book of Preemption (Shuf'ah)
Primary text
If a share is sold to three parties through three separate contracts, the pre-emptor, upon learning of the sales, may claim all three shares or claim any part he chooses. If the pre-emptor takes the share of the first buyer, the other two buyers cannot join him in that pre-emption claim, because they did not own their shares at the time the first sale occurred. If the pre-emptor takes the share of the second buyer alone, the third buyer cannot join, but the first buyer must participate with the pre-emptor because his ownership predated the second sale, making him a partner at the time of the second purchase.
Supporting text
A differing view suggests that the first buyer should not participate in the pre-emption of the second share because his ownership at the time of the second purchase gave him the immediate right to claim pre-emption, and this right should not serve as the basis for establishing further pre-emption rights. Furthermore, if the pre-emptor claims the share of the third buyer and waives his right against the first two, there are two differing views regarding whether the first two share in the pre-emption right with the pre-emptor. Similarly, if the pre-emptor claims all three shares, there are two views on whether any of the purchasers can participate with him; one view states none can participate because their respective properties have been reclaimed via pre-emption, and the other view, held by Abu Hanifa and some Shafi'i scholars, states that the second buyer participates in the pre-emption of the third share because he held valid ownership when the third purchase occurred, establishing his right to participate irrespective of the waiver.