What is the ruling on pre-emption when the transfer is for a non-monetary consideration if the pre-emptor chooses to exercise the right?
General Chapter
Al-Mughni
Book of Preemption (Shuf'ah)
Primary text
If pre-emption is established for property exchanged for a non-monetary consideration, the argument against taking it at the value of the substitute dower (*mahr al-mithl*) is that this requires assessing the wife's marital share against non-relatives, which is variable and causes greater harm than the stipulated price in a sale. The primary counter-argument holds that since the property is owned without money, it is analogous to a gift or inheritance. Moreover, taking it for the substitute dower is prohibited, and taking it for the actual consideration is impossible, thus rendering acquisition impossible, unlike in a sale where the price can be used for acquisition.
Supporting text
If the husband divorces the wife before consummation after the pre-emptor waived his right, the husband recovers half of the stipulated dower because the property exists in her possession in its specified capacity. If the divorce occurs after the pre-emptor takes possession, the husband recovers half its assessed value, as her ownership has ceased, similar to a sale. If the divorce precedes the pre-emptor's knowledge, one view holds the pre-emptor’s right, established by the marriage contract, prevails, while the second view favors the husband’s right, established by explicit text and consensus.