Is pre-emption (Shuf'ah) applicable to property transferred without compensation?
General Chapter
Al-Mughni
Book of Preemption (Shuf'ah)
Primary text
Pre-emption is not applicable to property transferred without compensation, such as gifts without reward, charity, bequests, or inheritance. This is the established position of the majority of scholars, including Malik, Al-Shafi'i, and the Companions of Abu Hanifa (Ashab Ar-Ra'i). The basis for this ruling is that the property was not transferred via a price, and the relevant Hadith concerning pre-emption is specific to sale. Furthermore, the pre-emptor must take the property for the price it was transferred for, which is not possible in non-compensated transfers.
Supporting text
A report exists from Malik, and similarly from Ibn Abi Layla, stating that pre-emption applies to property transferred via a gift or charity, and the pre-emptor takes it for its assessed value. This is argued because the harm of co-ownership necessitating pre-emption exists regardless of the transfer method, and the harm to the recipient of a gift is less than that to a buyer, whose investment demonstrates need.