it is like a gift or an endowment (waqf), according to what we shall mention, if Allah Almighty wills.
Section: If the purchaser disposes of the share (shiqs) in a manner for which preemption is not due, such as endowment (waqf), gift, mortgage, or designating it as a mosque, Abu Bakr said: The preemptor has the right to rescind that disposition and take it for the price at which the sale occurred. This is the view of Malik, al-Shafi'i, and the People of Opinion (Ashab al-Ra'y); because the preemptor possesses the right to rescind the second and third sales, even while it is possible to take it by them; therefore, it is more appropriate that he possesses the right to rescind a contract by which it is not possible for him to take it. Furthermore, the right of the preemptor is earlier, and his position is stronger, so the purchaser does not possess the authority to dispose of it in a way that nullifies his right. It is not impossible for an endowment (waqf) to be invalidated for the sake of the right of another, just as if a sick person endows his property while he is in debt; for when he dies, the endowment is returned to the creditors and heirs regarding what exceeds one-third of his property; in fact, they have the right to invalidate the manumission, so the endowment is even more appropriate. The Qadi said: The text narrated from Ahmad, in a report from 'Ali ibn Sa'id and Bakr ibn Muhammad, is the lapsing of preemption in cases where he disposes of it by way of endowment (waqf) or gift. This was also narrated from al-Masarjisi regarding endowment (waqf); because preemption only exists in property that is owned, and this has exited from being owned. Ibn Abi Musa said: Whoever buys a house and makes it a mosque has consumed it, and there is no preemption in it. And because in preemption here there is harm to the donee and the beneficiary of the endowment (waqf-alayhi); for their ownership ceases without compensation, and harm is not removed by [another] harm. This is contrary to a sale, for if he rescinds the second sale, the second purchaser seeks recourse for the price that was taken from him, so no harm befalls him. And because establishing preemption here necessitates returning the compensation to someone other than the owner and depriving the owner of it. So if we say that preemption lapses, then there is no dispute, but if we say it is established, the preemptor takes the share from whoever has it in their hand, rescinds their contract, and pays the price to the purchaser. It is narrated from Malik that it belongs to the donee; because he takes his property. As for us, the
(7) In the original: "illa anna" (unless). (8) In the original: "al-mabi'" (the sold item). (9) In the original and M: "fa-bi-anna" (then because). (10) Abu 'Ali al-Hasan ibn 'Isa ibn Masarjisu al-Masarjisi al-Naysaburi. He embraced Islam at the hands of Ibn al-Mubarak, and he was pious, religious, and trustworthy. When he passed through Baghdad and narrated [hadith] there, they counted twelve thousand inkwells in his assembly. He died in the year 240 AH. [Al-Ansab 501; al-'Ibar 1/432].
