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."
