MaliksMuwattaBook35.Pre-emptionIn Property
MALIKSMUWATTABOOK35.PRE-EMPTIONINPROPERTY
MaliksMuwatta Book 35, HadithNumber 1.
Section:CasesinwhichPre-emptionisPossible.
Yahya related to me from Malik from Ibn Shihab from Said ibn al-Musayyab and from AbuSalamaibnAbdar-RahmanibnAwfthattheMessengerofAllah,mayAllahbless him and grant him peace, decreed for partners the right of pre-emption in property which had notbeen dividedup.Whenboundaries hadbeenfixedbetween them, then there was no right of pre-emption.
Maliksaid,“Thatisthesunnaaboutwhichthereisnodisputeamong us.”
MALIKSMUWATTABOOK35.PRE-EMPTIONINPROPERTY
MaliksMuwatta Book 35, HadithNumber 2.
Section:CasesinwhichPre-emptionisPossible.
MaliksaidthatheheardthatSaidibnal-Musayyab,whenaskedaboutpre-emptionand whethertherewasa sunnainit,said,“Yes.Pre-emptionisinhousesandland,anditis only between partners.”
MALIKSMUWATTABOOK35.PRE-EMPTIONINPROPERTY
MaliksMuwattaBook 35, HadithNumber 3.
Section:CasesinwhichPre-emptionisPossible.
MalikrelatedtomethatheheardthelikeofthatfromSulaymanibnYasar.
Malik spoke about a man who bought out one of the partners in a shared property, by payingthemanwith ananimal,aslave,aslave-girl,ortheequivalentofthatingoods. Then another partner decided to exercise his right of pre-emption after that, and he foundthattheslaveorslave-girlhaddied,andnooneknewwhathervaluehadbeen. 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 paid was 100 dinars. Theniftheonewiththerightof pre-emptionwishes,hecancompensatehim,orelsehe 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 someonemakesagiftofhisportionofasharedhouseorland,anddoesnot takeanyremunerationanddoesnotseekto,andapartnerwantstotakeitforitsvalue, he cannot do so as longas theoriginal partner has not been given recompensefor 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 bringawealthyandreliableguarantorofequalstandingtotheonewhoboughtintothe land, he can also take possession.”
Maliksaid,“Aperson’sabsencedoesnotseverhisrightofpre-emption.Evenifheisa wayforalongtime,thereisnotimelimitafterwhichtherightofpre-emptioniscutoff.”
Maliksaidthatifamanleftlandtoanumberofhischildren,thenoneof themwhohad 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.
Maliksaid,“Thisiswhatisdoneinourcommunity.”
Maliksaid,“Pre-emptionissharedbetweenpartnersaccordingtotheirexistingshares. 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.”
Maliksaid,“Asforamanwhobuysouttheshareofoneof hispartners,andoneofthe other partners says, ‘I will take a portion according to my share,’ and the first partner says,‘Ifyouwishtotakeallthepre-emption,Iwillgiveituptoyou.Ifyouwish toleave 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.”
Malikspokeaboutamanwhoboughtland,anddevelopeditbyplantingtreesordigging 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 pre-emption 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.”
Maliksaidthatsomeonewhosoldoffhisportionofasharedhouseorlandandthen,on learning that some one with a right of pre-emption was to take possession bythat right, askedthebuyer to revoke the sale,andhedid so,didnothave the right to do that.The pre-emptor has more right to the property for the price for which he sold it.
Inthecaseofsomeonewhoboughtalongwithasectionofasharedhouseorland,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 rightofpre-emptionsurrendersittothebuyerandanotherrefusestodootherthantake his pre-emption, the one who refuses to surrender has to take all the pre-emption, 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 portionsofmypartnersuntiltheyarepresent.Iftheytakeit,thatisthat.Iftheyleaveit,I willtakeallthepre-emption,’Maliksaid,‘Hecanonlytakeitallorleaveit.Ifhispartners 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.’”
MALIKSMUWATTABOOK35.PRE-EMPTIONINPROPERTY
MaliksMuwatta Book 35, HadithNumber 4.
Section:CasesinWhichPre-EmptionIsNotPossible.
Yahya said that Malik relatedfrom Muhammad ibn Umarafrom AbuBakr ibn Hazm that UthmanibnAffansaid,“Whenboundariesarefixedinland,thereisnopre-emptioninit. There is no pre-emption in a well or in male palm trees.”
Maliksaid,“Thisiswhatisdoneinour community.”
Maliksaid,“Thereisnopre-emptioninaroad,whetherornotitispracticaltodivide it.”
Maliksaid,“Whatisdoneinourcommunityisthatthereisnopre-emptioninthe 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 optionofwithdrawalandthepartnersofthesellerwantedtotakewhattheirpartnerwas 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.
Whenthesaleisconfirmed,theyhavetherightofpre-emption.”
Malik spoke about a man who bought land and it remained in his hands for some time. Thenamancameandsawthathehadashareof thelandbyinheritance.Maliksaid,“If the man’s right of inheritance is established, he also has a right of pre-emption. 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 purchasehasbeenforgottenbecauseofthelengthoftime,pre-emptionisdiscontinued. 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 inorder 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 thepositionofsomeonewhoboughtthelandforaknownprice,andthenafterthatbuilt on it and planted. The owner of pre-emption takes possession after that is included.”
Maliksaid,“Pre-emptionisappliedtothepropertyofthedeceasedasitisappliedtothe 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 uncultivatedlandaroundit.Pre-emptionisinwhatcanbeusefullydivided,andinland 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 andtheyknewabouthispurchase,andthentheyleftituntilalongtimehadpassedand then came demanding their pre-emption, I do not think that they would have it.”
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