What is the ruling on pre-emption when the transaction is nullified after the pre-emptor's action?
General Chapter
Al-Mughni
Book of Preemption (Shuf'ah)
Primary text
If the pre-emptor waives his right and subsequently the husband divorces the wife, who then reverts half the property, the pre-emptor has no right to claim it. Likewise, if the nullification comes from the wife and the property reverts entirely to the husband, the pre-emptor does not acquire it, as the right of pre-emption does not apply when the property returns to the original contracting party due to the nullification of the contract, analogous to returning based on defect.
Supporting text
The same rule applies to any nullification that returns the property to the contracting party, such as returning it due to a defect, mutual rescission (*muqayalah*), disagreement between the parties, or over-pricing (*ghabn*). A differing opinion exists that mutual rescission is a sale, thus establishing pre-emption in that case, according to Abu Hanifa. If the pre-emptor was unaware and *muqayalah* occurred, he may claim it from whomever holds it. If he waived pre-emption during the sale but *muqayalah* occurred later, he may still claim it.