The Need to Re-examine the Route of Pre-emption Law in the Sudan: A Critical Analysis

Abstract

This article examines the concept of pre-emption rights in the Sudan, in particular, the origin, nature and domain of the principle by making four key arguments. Firstly, it argues that, although the doctrine is maintained and applied as a part of Muslim law, it is also applied between Muslims and non-Muslims as equity and good conscience rule rather than as a part of Muslim personal law. Secondly, it presupposes that the doctrine of pre-emption has its roots in Islamic law, although it is not ‘exclusive’ to Islamic systems. Thirdly, it suggests that the tendency to adopt Islamic theory as a sole reason for implementing the doctrine, sometimes led to judicial debates; for example, the question arose to whether this right existed in favour of a lease holder. Finally, Islamic theory leaves the question open as to whether pre-emptive rights exist in the domain of movable property.