Is the right of preemption forfeited if the claimant guarantees the buyer against defects (Ahda), or stipulates an option for the buyer who then chooses to uphold the sale?
General Chapter
Al-Mughni
Book of Preemption (Shuf'ah)
Primary text
The right of preemption is not forfeited if the claimant guarantees the buyer against defects (Al-'Uhda) for the purchased item or stipulates an option for the buyer who subsequently chooses to uphold the sale contract. This is the position held by Al-Shafi'i. The reasoning is that guaranteeing the contract is a cause that precedes the obligation of preemption, and thus does not nullify the right, similar to giving permission for the sale or waiving the right before the sale is finalized.
Supporting text
The Ahl al-Ra'y state that the right is forfeited because the contract is finalized through the agent's action, making it akin to a situation where a partner sells a portion of their own share. This view is rejected because the sale is not contingent upon the guarantee. Furthermore, this reasoning is invalidated by the case where the buyer is already a partner; in that instance, the sale is finalized, yet the right of preemption is established for the partner regarding their share.