Does a Muslim partner have the right of preemption (Shuf'ah) when a co-owner sells their share to a non-Muslim (Dhimmi)?
General Chapter
Al-Mughni
Book of Preemption (Shuf'ah)
Primary text
The right of preemption is not established for a Muslim partner when a co-owner sells a share to a non-Muslim. This view is narrated from Al-Hasan and Al-Sha'bi. The justification is based on a report by Al-Daraqutni in his book 'Al-'Ilal' citing Anas that the Prophet, peace be upon him, stated, 'There is no preemption for a Christian' (Nasarani). This specific ruling overrides the general evidence cited by the opposing side. Furthermore, preemption is a right derived from a specific type of ownership, and thus it is not incumbent upon the Dhimmi in favor of the Muslim, analogous to Zakat. It is also a right exclusive to immovable property, akin to the right of superiority in construction.
Supporting text
A dissenting opinion, narrated from Shurayh, 'Umar ibn 'Abd al-'Aziz, Al-Nu'man, Iyas ibn Mu'awiyah, Hammad ibn Abi Sulayman, Al-Thawri, Malik, Al-Shafi'i, Al-'Anbari, and the People of Opinion (Ashab al-Ra'y), affirms the right of preemption. Their evidence is the general statement of the Prophet, peace be upon him: 'It is not lawful for him to sell until he asks his partner's permission, and if he sells without his permission, he has the greater right to it.' They also argue that preemption is an established option to avert harm through purchase, making the Muslim and the non-Muslim equal, similar to the right of return due to defect.