What are the rights of the pre-emptor (Shufi') when a partner sells half of a plot (shaqs) to one man, and then sells the remaining part in a separate transaction?
General Chapter
Al-Mughni
Book of Preemption (Shuf'ah)
Primary text
If a partner sells half of the plot to a man, and then sells the remainder in a separate deal, and the pre-emptor learns of both transactions, he has the right to take either the first sale, the second sale, or both. Each transaction holds its own ruling. If the pre-emptor takes the first sale, no one shares his pre-emption right over it. If he takes the second sale, there is a scholarly difference regarding whether the initial buyer shares the pre-emption right over the first part with the pre-emptor.
Supporting text
There are three differing opinions concerning the sharing of the pre-emption right when the pre-emptor only takes the second part. The first view, held by Abu Hanifa and some Shafi'i scholars, states the initial buyer shares the right because he was a partner at the time of the second sale, possessing ownership of the first part. The second view states the initial buyer does not share because his ownership of the first part was not established, as the pre-emptor had the right to claim it. The third view, the established position of Al-Shafi'i, states that if the pre-emptor pardons (relinquishes) his right to the first sale, the initial buyer shares the right to the second sale; however, if the pre-emptor claims both, the buyer does not share.