Is it valid for the claimant to make a settlement (Sulah) with compensation in exchange for waiving the pre-emptive right?

General Chapter

Al-Mughni

Book of Preemption (Shuf'ah)

Book 23 · Issue 2 · Bab 1

Open in Qurani

Primary text

If the claimant settles with the buyer for compensation in exchange for waiving the Shuf'ah right, the settlement is invalid. This view is held by Abu Hanifa and Al-Shafi'i. The rationale is that Shuf'ah is an option (khiyar) that does not lapse for money (mal), therefore, accepting compensation for its removal is not permissible, similar to the option stipulated in a condition (khiyar al-shart). This contrasts with Khul' (redemption of the wife's dowry), which involves compensation for something already owned, whereas Shuf'ah involves waiving a right.

Supporting text

Malik permits the validity of the settlement, holding that compensation is permissible for the removal of ownership, analogous to granting a wife the right to initiate divorce (tamlik imra'ah amraha).