Yahya related to me from Malik from Ibn Shihab from
Said ibn al-Musayyab and from Abu Salama ibn Abd ar-Rahman
ibn Awf that the Messenger of Allah, may Allah bless him
and grant him peace, decreed for partners the right of
preemption in property which had not been divided up. When
boundaries had been fixed between them, then there was no
right of pre-emption.
Malik said, "That is the sunna about which there is no
dispute among us."
Malik said that he heard that Said ibn al-Musayyab,
when asked about pre-emption and whether there was a sunna
in it, said, "Yes. Pre-emption is in houses and land, and
it is only between partners."
Malik related to me that he heard the like of that from
Sulayman ibn Yasar.
Malik spoke about a man who bought out one of the
partners in a shared property, by paying the man with an
animal, a slave, a slave-girl, or the equivalent of that
in goods. Then another partner decided to exercise his
right of pre-emption after that, and he found that the
slave or slave-girl had died, and no one knew what her
value had been. The buyer claimed, "The value of the slave
or slave-girl was 100 dinars." The partner with the right
of pre-emption claimed, "The value was 50 dinars."
Malik said, "The buyer takes an oath that the value of
what he payed was 100 dinars. Then if the one with the
right of pre-emption wishes, he can compensate him, or
else he can leave it, unless he can bring a clear proof
that the slave or slave-girl's value is less than what the
buyer said. If someone gives away his portion of a shared
house or land and the recipient repays him for it by cash
or goods, the partners can take it by pre-emption if they
wish and pay off the recipient the value of what he gave
in dinars or dirhams. If someone makes a gift of his
portion of a shared house or land, and does not take any
remuneration and does not seek to, and a partner wants to
take it for its value, he cannot do so as long as the
original partner has not been given recompense for it. If
there is any recompense, the one with the right of
pre-emption can have it for the price of the recompense."
Malik spoke about a man who bought into a piece of
shared land for a price on credit, and one of the partners
wanted to possess it by right of pre-emption . Malik said,
"If it seems likely that the partner can meet the terms,
he has right of pre-emption for the same credit terms. If
it is feared that he will not be able to meet the terms,
but he can bring a wealthy and reliable guarantor of equal
standing to the one who bought into the land, he can also
take possession."
Malik said, "A person's absence does not sever his
right of pre-emption. Even if he is a way for a long time,
there is no time limit after which the right of preemption
is cut off."
Malik said that if a man left land to a number of his
children, then one of them who had a child died and the
child of the deceased sold his right in that land, the
brother of the seller was more entitled to pre-empt him
than his paternal uncles, the partners of his father.
Malik said, "This is what is done in our community."
Malik said, "Pre-emption is shared between partners
according to their existing shares. Each of them takes
according to his portion. If it is small, he has little.
If it is great, it is according to that. That is if they
are tenacious and contend with each other about it."
Malik said, "As for a man who buys out the share of one
of his partners, and one of the other partners says, 'I
will take a portion according to my share,' and the first
partner says, 'If you wish to take all the preemption, I
will give it up to you. If you wish to leave it, then
leave it.' If the first partner gives him the choice and
hands it over to him, the second partner can only take all
the pre-emption or give it back. If he takes it, he is
entitled to it. If not, he has nothing."
Malik spoke about a man who bought land, and developed
it by planting trees or digging a well etc., and then
someone came, and seeing that he had a right in the land,
wanted to take possession of it by pre-emption. Malik said
"He has no right of preemption unless he compensates the
other for his expenditure. If he gives him the price of
what he has developed, he is entitled to pre-emption . If
not, he has no right in it."
Malik said that someone who sold off his portion of a
shared house or land and then, on learning that some one
with a right of pre-emption was to take possession by that
right, asked the buyer to revoke the sale, and he did so,
did not have the right to do that. The pre-emptor has more
right to the property for the price for which he sold it.
In the case of some one who bought along with a section
of a shared house or land, an animal and goods (that were
not shared), so that when any one demanded his right of
pre-emption in the house or land he said, "Take what I
have bought altogether, for I bought it altogether," Malik
said, "The pre-emptor need only take possession of the
house or land. Each thing the man bought is assessed
according to its share of the lump sum the man paid. Then
the pre-emptor takes possession of his right for a price
which is appropriate on that basis. He does not take any
animals or goods unless he wants to do that."
Malik said, "If someone sells a section of shared land,
and one of those who have the right of preemption
surrenders it to the buyer and another refuses to do other
than take his pre-emption, the one who refuses to
surrender has to take all the preemption, and he cannot
take according to his right and leave what remains.
In the case where one of a number of partners in one
house sold his share when all his partners were away
except for one man, the one present was given the choice
of either taking the pre-emption or leaving it, and he
said, 'I will take my portion and leave the portions of my
partners until they are present. If they take it, that is
that. If they leave it, I will take all the pre-emption,'
Malik said, 'He can only take it all or leave it. If his
partners come, they can take from him or leave it as they
wish. If this is offered to him and he does not accept, I
think that he has no pre-emption.' "
Section: Cases in Which Pre-Emption Is Not Possible
Yahya said that Malik related from Muhammad ibn Umara
from Abu Bakr ibn Hazm that Uthman ibn Affan said, "When
boundaries are fixed in land, there is no pre-emption in
it. There is no pre-emption in a well or in male palm
trees. "
Malik said, "This is what is done in our community."
Malik said, "There is no pre-emption in a road, whether
or not it is practical to divide it."
Malik said, "What is done in our community is that
there is no pre-emption in the courtyard of a house,
whether or not it is practical to divide it."
Malik spoke about a man who bought into a shared
property provided that he had the option of withdrawal and
the partners of the seller wanted to take what their
partner was selling by pre-emption before the buyer had
exercised his option. Malik said, "They cannot do that
until the buyer has taken possession and the sale is
confirmed for him. When the sale is confirmed, they have
the right of pre-emption."
Malik spoke about a man who bought land and it remained
in his hands for some time. Then a man came and saw that
he had a share of the land by inheritance. Malik said, "If
the man's right of inheritance is established, he also has
a right of preemption. If the land has produced a crop,
the crop belongs to the buyer until the day when the right
of the other is established, because he has tended what
was planted against being destroyed or being carried away
by a flood."
Malik continued, "If the time has been long, or the
witnesses are dead or the seller has died, or the buyer
has died, or they are both alive and the basis of the sale
and purchase has been forgotten because of the length of
time, pre-emption is discontinued. A man only takes his
right by inheritance which has been established for him.
If his situation differs from this, because the sale
transaction is recent and he sees that the seller has
concealed the price in order to sever his right of
pre-emption, the value of the land is estimated, and he
buys the land for that price by his right of pre-emption.
Then the buildings, plants, or structures which are extra
to the land are looked at, so he is in the position of
some one who bought the land for a known price, and then
after that built on it and planted. The owner of
pre-emption takes possession after that is included."
Malik said, "Pre-emption is applied to the property of
the deceased as it is applied to the property of the
living. If the family of the deceased fear to break up the
property of the deceased, then they share it and sell it,
and they have no pre-emption in it."
Malik said, "There is no pre-emption among us in a
slave or a slave-girl or a camel, a cow, sheep, or any
animal, nor in clothes or a well which does not have any
uncultivated land around it. Pre-emption is in what can be
usefully divided, and in land in which boundaries occur.
As for what cannot be usefully divided, there is no
pre-emption in it."
Malik said, "Some one who buys land in which people who
are present have a right of pre-emption, refers them to
the Sultan and either they claim their right or the Sultan
surrenders it to him. If he were to leave them, and not
refer their situation to the Sultan and they knew about
his purchase, and then they left it until a long time had
passed and then came demanding their pre-emption, I do not
think that they would have it."
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