Does a gift or endowment prevent the right of pre-emption?

The questioner : It goes to the buyer as well.

The Shaykh : How is the announcement made?

The questioner : Like the time and riba (usury or interest).

The Shaykh : And how?

The questioner : He must give him a chance; he may want to exercise pre-emption. For example, he buys it, meaning he sells it and then gives it as a gift or makes it an endowment.

The Shaykh : Who sells it? The buyer?

The questioner : The second buyer.

The Shaykh : Okay, if in that case he gave it as a gift or made it an endowment, the right of pre-emption is void.

The questioner : Is the reason the land is not returned to the recipient of the gift that there was no price in it?

The Shaykh : Yes.

The questioner : Yes, that is the reason.

The Shaykh : Yes, because the right of pre-emption is not obligatory unless it is transferred for a financial consideration.

The questioner : Okay, why do we say he named his price? We say he named his price.

The Shaykh : What is the reason? I do not know this, because he does not want to take it; he takes it as a gift, yes.

The questioner : Abu Haqq al-Sharif’s right precedes the right of the pre-emptors, so why do we not transfer the pre-emption? Meaning, his right is legally prior.

The Shaykh : Yes, it is correct. The implication of the reasoning for the obligation of pre-emption is that if the partner gave it as a gift, it is not as if the buyer gave it as a gift. If the buyer gave it as a gift, there is no problem. The problem in that case is weak. But if the partner gave it as a gift, the school’s position is that there is no pre-emption. However, the second opinion in this matter is that there is pre-emption, and it is more correct, because the neighbor’s right or the partner’s right is prior. But our discussion is about when the buyer gives it as a gift.

The questioner : You say, why do we not say that even if the buyer gives it as a gift, the partner has pre-emption and the gifts are transferred, because his right is prior?

The Shaykh : By Allah, there is consideration in this. Meaning, the gift is executed because the donor is not the partner; the donor is a stranger, and the partner did not take it by pre-emption, and the donor is the donor in a stable ownership.

The questioner : We will continue.

The Shaykh : Yes, stable, stable until he takes it.

The questioner : Purely a partner for him.

The Shaykh : In the future. Because if the partner knew of the pre-emption, and for this reason, if the partner knew and delayed in taking the pre-emption, the school (may Allah have mercy on them) holds that he must prevent it immediately, except that they granted him a dispensation if he is eating lunch or dinner to finish his meal. It is not stable. Therefore, if we suppose there is a defect or something else, meaning if he profited during this period, for example, it became real estate and its value increased to twenty riyals now, then this belongs to the buyer until he takes that by pre-emption.