From whom does the pre-emptor (*Shafi'*) take the share (*Shuqqah*) if it is in the seller's possession?
General Chapter
Al-Mughni
Book of Preemption (Shuf'ah)
Primary text
If the pre-emptor desires to take the share, and it is in the possession of the buyer, he takes it from the buyer. If it is in the possession of the seller, he takes it from the seller, and this is considered the same as taking it from the buyer. This is the analogy of the madhhab, and it is the position of Abu Hanifah. The evidence is that the contract for immovable property is binding before its physical possession, and the sold item enters the ownership and liability of the buyer. The buyer is permitted to dispose of it immediately upon the contract, thus it becomes as if the buyer had already taken possession.
Supporting text
Al-Qadi stated that the pre-emptor cannot take it directly from the seller. Instead, the judge must compel the buyer to take possession, and then the pre-emptor takes it from the buyer. This is one of the two opinions among the companions of Al-Shafi'i, based on the premise that the sale is not completed except through possession. Therefore, if possession is lacking, the contract is void, and the right of pre-emption falls away.