35. Pre-emption in Property

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 askedabout 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 Sulaymanibn Yasar. Malik spoke about a man who bought out one of thepartners in a shared property, by paying the man with an animal, aslave, a slave-girl, or the equivalent of that in goods. Then anotherpartner decided to exercise his right of pre-emption after that, andhe found that the slave or slave-girl had died, and no one knew whather value had been. The buyer claimed, "The value of the slave orslave-girl was 100 dinars." The partner with the right of pre-emptionclaimed, "The value was 50 dinars." Malik said, "The buyertakes an oath that the value of what he payed was 100 dinars. Then ifthe 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 theslave or slave-girl's value is less than what the buyer said. Ifsomeone gives away his portion of a shared house or land and therecipient repays him for it by cash or goods, the partners can take itby pre-emption if they wish and pay off the recipient the value ofwhat he gave in dinars or dirhams. If someone makes a gift of hisportion of a shared house or land, and does not take any remunerationand does not seek to, and a partner wants to take it for its value, hecannot do so as long as the original partner has not been givenrecompense for it. If there is any recompense, the one with the rightof 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 aprice on credit, and one of the partners wanted to possess it by rightof pre-emption . Malik said, "If it seems likely that the partner canmeet 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 canbring a wealthy and reliable guarantor of equal standing to the onewho bought into the land, he can also take possession." Maliksaid, "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 afterwhich the right of preemption is cut off." Malik said that ifa man left land to a number of his children, then one of them who hada child died and the child of the deceased sold his right in thatland, the brother of the seller was more entitled to pre-empt him thanhis 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 haslittle. If it is great, it is according to that. That is if they aretenacious and contend with each other about it." Malik said,"As for a man who buys out the share of one of his partners, and oneof the other partners says, 'I will take a portion according to myshare,' and the first partner says, 'If you wish to take all thepreemption, I will give it up to you. If you wish to leave it, thenleave it.' If the first partner gives him the choice and hands it overto him, the second partner can only take all the pre-emption or giveit back. If he takes it, he is entitled to it. If not, he hasnothing." Malik spoke about a man who bought land, anddeveloped it by planting trees or digging a well etc., and thensomeone came, and seeing that he had a right in the land, wanted totake possession of it by pre-emption. Malik said "He has no right ofpreemption unless he compensates the other for his expenditure. If hegives him the price of what he has developed, he is entitled to pre-emption . If not, he has no right in it." Malik said thatsomeone 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 takepossession by that right, asked the buyer to revoke the sale, and hedid so, did not have the right to do that. The pre-emptor has moreright to the property for the price for which he sold it. Inthe case of some one who bought along with a section of a shared houseor land, an animal and goods (that were not shared), so that when anyone 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 orland. Each thing the man bought is assessed according to its share ofthe lump sum the man paid. Then the pre-emptor takes possession of hisright for a price which is appropriate on that basis. He does not takeany animals or goods unless he wants to do that." Malik said,"If someone sells a section of shared land, and one of those who havethe right of preemption surrenders it to the buyer and another refusesto do other than take his pre-emption, the one who refuses tosurrender has to take all the preemption, and he cannot take accordingto his right and leave what remains. In the case where one ofa number of partners in one house sold his share when all his partnerswere away except for one man, the one present was given the choice ofeither taking the pre-emption or leaving it, and he said, 'I will takemy portion and leave the portions of my partners until they arepresent. If they take it, that is that. If they leave it, I will takeall the pre-emption,' Malik said, 'He can only take it all or leaveit. If his partners come, they can take from him or leave it as theywish. If this is offered to him and he does not accept, I think thathe has no pre-emption.' " Yahya said that Malik related from Muhammad ibn Umara from AbuBakr ibn Hazm that Uthman ibn Affan said, "When boundaries are fixedin land, there is no pre-emption in it. There is no pre-emption in awell or in male palm trees. " Malik said, "This is what isdone in our community." Malik said, "There is no pre-emptionin 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 todivide it." Malik spoke about a man who bought into a sharedproperty provided that he had the option of withdrawal and thepartners of the seller wanted to take what their partner was sellingby pre-emption before the buyer had exercised his option. Malik said,"They cannot do that until the buyer has taken possession and the saleis confirmed for him. When the sale is confirmed, they have the rightof pre-emption." Malik spoke about a man who bought land andit remained in his hands for some time. Then a man came and saw thathe had a share of the land by inheritance. Malik said, "If the man'sright of inheritance is established, he also has a right ofpreemption. If the land has produced a crop, the crop belongs to thebuyer until the day when the right of the other is established,because he has tended what was planted against being destroyed orbeing carried away by a flood." Malik continued, "If the timehas been long, or the witnesses are dead or the seller has died, orthe buyer has died, or they are both alive and the basis of the saleand purchase has been forgotten because of the length of time, pre-emption is discontinued. A man only takes his right by inheritancewhich has been established for him. If his situation differs fromthis, because the sale transaction is recent and he sees that theseller 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 forthat price by his right of pre-emption. Then the buildings, plants, orstructures which are extra to the land are looked at, so he is in theposition of some one who bought the land for a known price, and thenafter that built on it and planted. The owner of pre-emption takespossession after that is included." Malik said, "Pre-emptionis applied to the property of the deceased as it is applied to theproperty of the living. If the family of the deceased fear to break upthe property of the deceased, then they share it and sell it, and theyhave 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 anyuncultivated land around it. Pre-emption is in what can be usefullydivided, and in land in which boundaries occur. As for what cannot beusefully divided, there is no pre-emption in it." Malik said,"Some one who buys land in which people who are present have a rightof pre-emption, refers them to the Sultan and either they claim theirright 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 hispurchase, and then they left it until a long time had passed and thencame demanding their pre-emption, I do not think that they would haveit."