چکیده:
ABSTRACT: Dre-emption is a right that lawgiver under a condition has recognized it of an interests for one of the jointly-owned proprietary ,which the source of it ; is a contract of sale that is concluded between the one of the partners and third parties, since this contract may cancelled of the contract by the affected of mutual agreement , and through sales get returned to the proprietary of the seller and the price go back to the proprietary of the purchaser, there will be two situation, the first situation is a where cancelling of the contract gets before the actions of the per-emption by middleman and in the second situation cancelling of the contract gets after the pre-emption . Most jurisprudents believe that because creation of pre-emption arises as soon as the contract of sale and it as an earned right will be to the middleman ; the next cancelling of the contract can not affect it and causing it to be destroyed rather, it is pre-emption that if it be done after the cancelling of contract causes the resolve of the cancelling of contract .Against this statement , some of jurists also believe that sinse it get returned to the proprietary of the seller object of sale the cancelling of contract ; so does not remain local for the pre-emption because it's the parts of pre-emption that parts of selling owned by the purchaser. KEY WORDS: Pre-emption, Cancelling Of The Contract, Object Of Sale , Purchaser, Middleman.
خلاصه ماشینی:
Since this contract may be subject to rescission (Iqalah) through the mutual consent of both parties, whereby the sold item (mabi') returns to the ownership of the seller (ba'i) and the price (thaman) returns to the ownership of the buyer (mushtari), two scenarios arise: the first scenario is when rescission occurs before the exercise of the right of preemption by the preempter (shafi'), and in the second scenario, rescission occurs after the exercise of the right of preemption.
Mustafa'i, Sayyid Muhammad Kazim, (1423), Fiqh al-Mu'amalat, Islamic Publications Office affiliated with the Society of Teachers of the Qom Scientific Seminary, 1st ed.
Amili, Muhammad bin Makki, (Shahid al-Awwal), (1417), al-Durus al-Shar'iyyah fi Fiqh al-Imamiyyah, Islamic Publications Office affiliated with the Society of Teachers of the Scientific Seminary, Qom, 2nd ed.
Amili, Sayyid Jawad, (1419), Miftah al-Karamah fi Sharh Qawa'id al-Allamah, Islamic Publications Office affiliated with the Society of Teachers of the Scientific Seminary, Qom, 1st ed.
Hilli, Jamal al-Din, Ahmad bin Muhammad Asadi, (1407), al-Muhadhdhab al-Bari' fi Sharh al-Mukhtasar al-Nafi', Islamic Publications Office affiliated with the Society of Teachers of the Scientific Seminary, Qom, 1st ed.
This group of jurists has stated that when rescission occurs, the mabi' (subject matter of sale) returns to the ownership of the seller; this is in a case where the subject of shuf'ah is in a situation where the share of the sold item is in the possession of the buyer, and through this, a new partner is created for the pre-emptor (shafi').
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