Is the right of preemption (Shufa'ah) applicable to property held in Waqf (endowment)?
General Chapter
Al-Mughni
Book of Preemption (Shuf'ah)
Primary text
The right of preemption is not applicable to property held in Waqf. This view is adopted by the two Qadis, Ibn Abi Musa and Abu Ya'la, and aligns with the apparent position of the Shafi'i madhhab. The reasoning is that since Waqf property cannot be subjected to preemption, the right itself is not incumbent upon it, similar to indivisible property or neighboring property not subject to preemption. Furthermore, if Waqf is considered non-owned, the beneficiary is not the owner; and if it is considered owned, the ownership is incomplete because it does not permit disposition of the corpus, thus not conferring full ownership.
Supporting text
Abu al-Khattab held that if the Waqf property is deemed owned, preemption is obligatory upon the sale of a share therein, just like in property held in common ownership (Muthlaq). This is because the harm inflicted upon the beneficiary can be removed through preemption, as is the case with Muthlaq property.