to Ahmad: "What is the meaning of the Prophet's saying (peace be upon him): 'Whoever has a share (rub'ah) between him and his brother, and wishes to sell it, let him offer it to him'? And it has come in some narrations: 'And it is not lawful for him until he offers it to him.' Does this apply if preemption is established for him?" He replied, "It is not far-fetched that it is interpreted as such, and that preemption is not for him." This is the position of al-Hakam, al-Thawri, Abu 'Ubayd, Abu Khaythama, and a group of the Hadith scholars. Ibn al-Mundhir said: "It is reported differently regarding Ahmad; he said once: His preemption is void. And he said another time: It is not void." They argued using the statement of the Prophet (peace be upon him): "Whoever has a partnership in land, a share (rub'ah), or a walled garden, it is not lawful for him to sell until he asks his partner's permission; then if he wishes, he takes it, and if he wishes, he leaves it." It is impossible for the Prophet (peace be upon him) to say "and whoever wishes may leave it" if his leaving it has no meaning. And the implication of his saying: "If he sells and does not ask his permission, he [the partner] has a greater right to it" is that if he sells it with his permission, he has no right to it. Furthermore, preemption is established in a situation of consensus against the general principle, because he takes the buyer's property without his consent, and forces him to trade with it due to the buyer entering into the contract with the seller, in which he acted wrongly by causing harm to the partner and failing to show benevolence by offering it to him. This rationale is absent here, for he has already offered it to him, and his refusal to take it is proof of the absence of harm to his right by the sale. Even if there were harm, he brought it upon himself, so he does not deserve preemption, just as if he had delayed the demand after the sale. The reasoning for the first view is that it is a waiver of a right before it becomes due, so it is not valid, just as if he were to release him from what is owed to him, or a woman were to waive her dowry before marriage. As for the report, it is possible that he meant offering it to him so that he may purchase it if he wishes, thereby lightening the burden upon himself, and being content with the buyer taking the share, rather than waiving his right to preemption.

Section: If the preemptor acts as an agent in the sale, his preemption does not lapse by that, whether he was the agent of the seller or the buyer. This was mentioned by al-Sharif and Abu al-Khattab. It is the manifest view of the Madhhab of al-Shafi'i. He [the author] said: