Is pre-emption applicable when property is transferred in exchange for non-monetary consideration?
General Chapter
Al-Mughni
Book of Preemption (Shuf'ah)
Primary text
When property is transferred for non-monetary consideration, such as being designated as a dower (mahr), exchange in a *khul'* (redemption from marriage), or compensation for intentional homicide, the apparent view is that pre-emption does not apply. This view is held by Abu Bakr, Al-Hasan, Al-Sha'bi, Abu Thawr, and the Companions of Abu Hanifa. The rationale is that the text only explicitly addresses sale, and the property is transferred for a non-monetary consideration.
Supporting text
The opposing view, held by Ibn Hamid, Ibn Shibrima, Al-Harith Al-Ukayli, Malik, Ibn Abi Layla, and Al-Shafi'i, mandates pre-emption because the property is real estate owned through a contract of exchange, making it analogous to a sale. Those who affirm pre-emption disagree on the price of acquisition: some suggest the assessed value, while others, including Al-Shafi'i, state the pre-emptor takes it for the dower amount of the woman, arguing that since the compensation lacks a monetary equivalent, the assessment of the consideration dictates the price.