Right of Pre-emption | Islamic Laws by The Leader Ayatullah Ali Khamenei
Right of Pre-emption
Q1620. When two persons share in an endowed property and one of them sells his share — in a case he is allowed to do that, does the other enjoy the right of pre-emption? If two people rent some property — whether or not it is an endowment, then one of them transfers his right to the other through either a rent or ṣulH contract, does the other have the right of pre-emption? To give an example, one of the partners sold his share to a third party where it is shari to do so. And is it permissible where renting is involved? To give an example, two people jointly rented some property or an endowment. Is it permissible for either party to transfer their share by way of sub-letting the property to a third party?
A: Pre-emption is confined to the partnership in things themselves [not in using something as in the rent] if it is shari for one of the two partners to sell his share to a third party. Therefore, there is no right of pre-emption in an endowed property in which two people share even on the assumption that one of the two parties is allowed to sell his share to a third party. Nor is there such right in situations where some property was rented out to two people and one of tenants transfers his share to a third party.
Q1621. From Islamic texts one can deduce that pre-emption is a means for either party of a partnership to sell their share to a third party. Accordingly, could the encouragement, by one of the parties, of a potential buyer to buy the share of the other partner, making it known in the process that he is not going to exercise pre-emption if the third party bought the share of his partner, be considered a relinquishment of pre-emption?
A: The initiative taken by the partner to encourage the third party to buy the share of the other partner per se does not run counter to exercising pre-emption. Indeed, even his promise of not exercising it, by virtue of the transaction of sale between him [the third party] and his partner, does not necessarily take away pre-emption, after the transaction has gone through.