Can an undischarged bankrupt (Mufllis) exercise the right of preemption or waive it, and can his creditors intervene?

General Chapter

Al-Mughni

Book of Preemption (Shuf'ah)

Book 23 · Issue 5 · Bab 1

Open in Qurani

Primary text

The bankrupt has the right to claim preemption and to waive it. His creditors cannot claim it because ownership of the property has not yet been established in their favor over his remaining assets prior to distribution. Furthermore, creditors cannot compel him to claim preemption, as it is a transactional matter upon which one cannot be forced, similar to all other transactions. They also cannot force him to waive it, as that constitutes abandoning a right. This applies whether or not there is a benefit for him, as he acts on his own liability, over which he is not restricted. However, creditors can prevent him from paying the purchase price from his assets due to the attachment of their rights to his wealth. Once the preemption property is acquired, the rights of the creditors become attached to it, regardless of whether he acquired it with their consent or not, as it constitutes newly acquired wealth.