In a shared property inherited by two brothers, where one brother dies leaving two sons, and one of the sons sells his share, who holds the right of preemption (Shuf'ah)?
General Chapter
Al-Mughni
Book of Preemption (Shuf'ah)
Primary text
The right of preemption belongs jointly to the remaining brother and the deceased brother's sons (the uncle and the nephews). This view is held by Abu Hanifa, Al-Muzani, and Al-Shafi'i in his later opinion (Al-Jadid). The right is established between them because they are partners at the time the preemption right is established, similar to when they all acquire ownership through one cause. Preemption is established to avert harm to a partner entering due to their partnership, which applies to all of them.
Supporting text
The earlier opinion of Al-Shafi'i (Al-Qadim) and the view of Malik state that the brother has a greater right to preemption than the uncle because the brother is more closely related to the partnership due to sharing the cause of ownership. However, this distinction based on the cause of ownership is considered to have no basis or established legal consideration.