Does the right of preemption (Shuf'a) apply to a sale subject to an option to rescind (Khiyar) before the option period expires?
General Chapter
Al-Mughni
Book of Preemption (Shuf'ah)
Primary text
Preemption does not become established during the option period, whether the option belongs to both parties or only one of them. The core reasoning is that exercising preemption obligates the buyer to the contract against his will, imposes liability upon him, and deprives him of the right to reclaim the purchase price. This is considered equivalent to the case where the option belongs to the seller, as preemption would invalidate the seller's option and nullify their right to recourse regarding the asset. Both situations are viewed equally under the Law. This differs from the right to return due to defect, which is established to correct an injustice, and that right is nullified by the preemption claim.
Supporting text
Abu Al-Khattab suggested that preemption could be established because ownership has transferred, thus making preemption valid during the option period, similar to its validity after the period ends. Abu Hanifa holds that if the option belongs to the seller or both parties, preemption is not established until the option expires, as exercising it would nullify the seller's right to rescind and enforce the sale against their will. Furthermore, the preempter claims the share from the buyer, whose ownership has not yet fully vested. Al-Shafi'i has two opinions mirroring these two schools of thought.