Preemption and selling to relatives...

Egypt's Dar Al-Ifta

Preemption and selling to relatives


no. 907 for the year 2007 which includes the following:
The inquirer owns 21 qirats of land and wants to sell 9 qirats to her full maternal cousin. Claiming preemptive rights, the owners of the pieces of land adjacent to hers from the north and south sides want to buy the land. Who has the greater right to purchase the land?



The majority of scholars have agreed that preemption is restrictive and not comprehensive because it contravenes the established principle concerning the freedom to dispose of property as one wishes. Their dominant opinion is that a partner, and not a neighbor, holds preemptive rights. According to Hanafi scholars, preemption is permissible for a neighbor, and according to some of them, it is permissible to whoever shares the utilities with another such as the same entrance, access to water, access to the road and the like. Therefore, a neighbor does not have preemptive rights because he is not a partner. Authorities in Egypt support and favor this opinion in accordance to paragraph (b) of Article 393 of civil law which states: "A claim to preemptive rights is not permissible in a sale involving ancestors and descendants; spouses; relatives up to the fourth degree; or in-laws up to the second degree." This is the reason why judges today do not consider the aforementioned scenario to fall under preemption. Since its issuance, the law of preemption was based on Islamic law. It must be followed even if it has assumed the nature of the conventional law which is considered a kind of choice or ijtihad in Islamic law. This is because the ruler's verdict eliminates differences in opinion.

The ruling
The inquirer is entitled to sell her land to whoever she pleases — to her cousin or to both her neighbors or one of them. Neither of her neighbors is entitled to claim preemptive rights if the inquirer chooses to sell the piece of land to her cousin since he is a fourth degree relative.
Allah the Almighty knows best.


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