A Jurisprudential and Legal Reassessment of Waiving the Right of Pre-emption Before Sale by the Person Exercising the Right

In Imāmiyya jurisprudence, there are three different views regarding the possibility of waiving the right of pre-emption before the sale (Arabic: إسْقاط حَقُّ الشُّفْعة قَبْل البَیْع, Romanized: ʾIsqāṭ ḥaqq al-shufʿah qabl al-bayʿ). The majority of jurists do not accept waiving the right of pre-emption before the sale; however, some jurists accept it, and others offer a detailed view. The Civil Code remains silent on this issue. Despite disagreements, legal doctrine generally accepts the waiving of the right of pre-emption before the sale by relying on the broad interpretation of Article 822 of the Civil Code and deriving the legal principle from Article 448. Judicial practice also confirms this matter. In this study, the various perspectives in Imāmiyya jurisprudence and statutory law are evaluated using a descriptive-analytical method. The conclusion reached is that, from a jurisprudential and legal standpoint, if the person exercising the right of pre-emption (Arabic: شَفیع, Romanized: shfīʿ) offers to sell to their partner or offers a third party the option to buy the partner’s share on the condition that they waive their right, their right is considered waived, as their declaration indicates an abandonment of the right of pre-emption. However, if the person rejects the offer to buy the partner’s share, the mere rejection does not indicate an abandonment of the right of pre-emption. Instead, it may be a strategic consideration of the advantages and disadvantages of employing the right in the future, given the market conditions.