What is the ruling on preemption when the buyer is a non-heir, but the preemption claimant is an heir, following a sale with a concession?
General Chapter
Al-Mughni
Book of Preemption (Shuf'ah)
Primary text
There are two primary views. The first view permits the heir to claim preemption because the concession was made to someone else, and the heir claiming it does not imply the deceased was attempting to grant a right via the concession. The second view, held by the companions of Abu Hanifa, is that the sale is valid but preemption is not required. This is because establishing preemption would allow the deceased a means to establish a right for their heir through the Mahabah, distinguishing it from a gift made to the heir's creditor, whose right stems from the debt, not the gift.
Supporting text
Al-Shafi'i's scholars present five views. Two align with the above. The third suggests the entire sale is void because it leads to conveying the Mahabah to the heir; this is incorrect as preemption is ancillary to the sale. The fourth suggests the preemption claimant can claim the portion corresponding to the price minus the Mahabah, equating the Mahabah to a gift, which is incorrect as a non-heir preemption claimant could not claim the whole if it were a gift. The fifth suggests the sale is void in the portion corresponding to the Mahabah, which is incorrect as a concession under one-third to a non-heir is valid, even if the property is subject to preemption.