What is the ruling regarding mutual preemption claims (Shufa'a) when two partners jointly own a property and each claims superior right to the preemption over what the other possesses?
General Chapter
Al-Mughni
Book of Preemption (Shuf'ah)
Primary text
If two partners each claim entitlement via preemption (Shufa'a) over what the other holds in a jointly owned property, the judge must first inquire about the time of their acquisition. If both state they acquired ownership simultaneously (daf'a wahidah), neither partner has a right of preemption over the other. This is because preemption is established only by a prior, existing ownership followed by a subsequent new acquisition. If each partner claims their ownership predates the other's, and one presents valid evidence (bayyinah) supporting their claim of earlier acquisition, judgment is given in their favor. If both present evidence, the one with the earlier documented date prevails. If the evidence of each asserts their prior ownership and the subsequent acquisition by the opponent, the evidences mutually nullify each other.
Supporting text
If neither party has supporting evidence, precedence is given to the one whose claim was stated first. The opponent is then required to take an oath. If the opponent denies the claim and swears the oath, the first claim fails. Subsequently, the second claim against the first claimant is heard. If the first claimant denies and swears, both claims are nullified. If the first claimant establishes their claim and the second claimant refuses the oath (nikul), judgment is passed against the second, and their subsequent claim is not heard because the opponent has established their right. Conversely, if the second claimant swears the oath and the first claimant refuses the oath, judgment is passed against the first claimant.