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.'
"
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."
