Is the right of preemption established if the transaction involves wine or swine as the price?

General Chapter

Al-Mughni

Book of Preemption (Shuf'ah)

Book 23 · Issue 2 · Bab 1

Open in Qurani

Primary text

If two parties contract a sale involving wine or swine, and the preemptor claims his right based on this transaction, the contract already executed between the parties will not be invalidated. If the exchange of goods (handing over of property) occurred only between the contracting parties without the involvement of the preemptor, and they seek judgment from us, we do not rule in favor of the preemptor claiming preemption. The basis for this is that the transaction is a sale contracted with wine, hence preemption is not established, just as if the transaction were between two Muslims. Furthermore, it is a contract with a forbidden price, akin to a sale involving swine or carrion. We do not concede that wine is considered property for them, as God Almighty has forbidden it just as He forbade the swine, and their belief in its permissibility does not make it property, similar to swine. The reason the executed contract is not overturned when the exchange has already taken place is that we do not interfere with actions they undertake based on their religious beliefs, unless they bring the dispute to us before completion. If they had brought the dispute before the exchange (taqabud), we would have annulled the transaction.

Supporting text

Al-Shafi'i agrees with the main position that preemption is not established. Abu Al-Khattab stated that if the transaction involves wine, and we hold that wine is considered property for them (Dhimmi), then preemption is ruled in their favor. Abu Hanifah stated that preemption is established if the price is wine because it is considered their property, akin to if they had traded using dirhams; however, if the preemptor is a Dhimmi, he takes it using the like amount of wine, and if the preemptor is a Muslim, he takes it based on the monetary value of the wine.