Is the right of preemption (Shuf'a) established?
General Chapter
Al-Mughni
Book of Preemption (Shuf'ah)
Primary text
The right of preemption is established by Sunnah and Ijma' (consensus). The evidence from Sunnah is based on the narration of Jabir that the Messenger of Allah, peace be upon him, ruled for preemption in property that had not been divided. When boundaries are set and paths designated, there is no preemption. Another narration states that the Prophet, peace be upon him, ruled for preemption in every undivided partnership, whether a plot or a wall, and the co-owner is not allowed to sell without seeking permission from his partner; if the partner wishes, he takes it, or leaves it. If the partner sells without permission, the original partner has the right to take it back. Consensus is confirmed by Ibn al-Mundhir, who stated that the scholars agreed upon establishing preemption for the partner who has not made partition in sold land, a house, or a wall. The underlying rationale is that if one partner wishes to sell his share, and the option exists to sell to the co-owner to resolve the matter, good fellowship dictates selling it to the partner to achieve the seller's goal and save the partner from harm. If this is not done and the sale is made to a stranger, the Law grants the partner the right to claim it for himself.
Supporting text
Al-Asamm dissented, holding that preemption is not established because it harms property owners, as a buyer would refrain from purchasing knowing it could be taken away, and the partner might neglect buying, thus harming the owner. This view is rejected because it contradicts established narrations and prior consensus. Responses to this include observing that partners still sell their shares to non-partners despite the right of preemption, and the affected party can demand partition, which nullifies the right of preemption.