Importance of Prayer & Ruling of its Abandonment
Facing the Qiblah & Intention in the Prayer
Etiquettes of Walking to Prayer and its Description
Description of Prayer Continued
Description of Prayer Continued
Description of Prayer Continued
Pillars and Mandatory Acts of Prayer
Two Prostrations of Forgetfulness
Supererogatory (Voluntary) Prayers
Supererogatory (Voluntary) Prayers Continued
Times of Prohibition of (Supererogatory) Prayer
Congregational Prayers & Latecomers
Jumu'ah (Congregational Friday) Prayer
Introduction & Commercial and Selling
Selling of Primary & Secondary Commodities
Cancellation Options in Transactions
Cancellation Options Continued
Debt Transference & Guarantor-ship
Mortgaging & Security Deposits
Partnership & Companies Continued
Reviving Barren Lands & Per-Job Wage
Lost and Found Property & Foundlings
Prize Money & Deposits for Safekeeping
The Right of Pre-emption (Shuf‘ah)
1013
It is one’s right [due to one’s status as a neighbor or co-owner of a property] to take possession of [by purchasing] the share of one’s co-owner from someone who has bought it.
وَهِيَ اسْتِحْقَاقُ الإِنْسَانِ انْتِزَاعَ حِصَّةِ شَرِيْكِهِ مِنْ يَدِ مُشْتَرِيْهَا.
It is only binding when the following seven conditions are fulfilled:
[It must be a case of] selling. 1014 Pre-emption is not binding in the case of gifts, donations, endowments, khul‘, 1015 and wedding gifts (ṣadâq).
وَلاَ تَجِبُ إِلاَّ بِشُرُوْطٍ سَبْعَةٍ: أَحَدُهَا: الْبَيْعُ، فَلاَ تَجِبُ فِيْ مَوْهُوْبٍ، وَلاَ مَوْقُوْفٍ وَلاَ عِوَضِ خُلْعٍ، وَلاَ صَدَاقٍ.
1013. The right of pre-emption, or priority in purchasing something before others (because of one’s status as a neighbor or co-owner of a property), is established in the Sunnah. The Messenger of Allah (SA) said:
“The neighbor is more entitled to the (property) adjacent to him or her.” (B – from Abu Râfi‘)
اَلْجَارُ أَحَقُّ بِصَقَبِه
Ibn al-Mundhir (d. 318 AH) reported the consensus on the concept of shuf‘ah (pre-emption).
Reason supports the ruling of shuf‘ah. If X and Y are neighbors or business partners, and Y sells his or her share of a property (that they own together) to a third party, X may encounter difficulties; therefore, X is given the right over others to buy it at the offered price.
1014. The right of pre-emption is validated by consensus if the transfer of ownership (from Y to the third party) was done through sale. It is inapplicable by consensus if it was through inheritance. In other words, if Y’s portion of the property passes on to an heir, X does not have the right to claim it through shuf‘ah. Concerning the other modes of transfer, there is disagreement. Those who validate shuf‘ah in the other cases allow the pre-emptor to take the property for its market value.
(A) + (+H, +S) do not validate shuf‘ah in rental properties, where two parties may share the usufruct of some property. This means if one co-renter (Y) no longer wishes to rent his or her portion of the property, and wants to let another person rent it, the original co-renting partner (X) should not be allowed to block this.
1015. Khul‘ means the termination of marriage when initiated by the wife in return for a payment. If Y is the wife, and she gives her portion of a property to her husband to grant her khul‘, then X (the co-owner of that property) will not be able to block that transaction. Likewise, if someone gives his or her share of property as a wedding gift or a donation, the co-owner will not be allowed to block that.
It should be real estate or the attached buildings or trees. 1016
الثَّانِيْ: أَنْ يَكُوْنَ عَقَارًا، أَوْ مَا يَتَّصِلُ بِهِ مِنَ الْبِنَاءِ والْغِرَاسِ.
It should be a common property, 1017 and not a divided one with well-defined borders, 1018 according to Jâbir’s narration, “The Prophet (SA) has decreed that pre-emption is valid in all cases where the real estate concerned has not been divided, but if the boundaries are established and the roads are made, then there is no pre-emption.” 1019
الثَّالِثُ: أَنْ يَكُوْنَ شِقْصًا مُشَاعًا، فَأَمَّا الْمَقْسُوْمُ الْمَحْدُوْدُ، فَلاَ شُفْعَةَ فِيْهِ لِقَوْلِ جَابِرٍ : " قَضَى رسول الله بِالشُّفْعَةِ فِي كل ما لَمْ يُقْسَمْ. فَإِذَا وَقَعَتِ الْحُدُودُ وصُرِفَت الطٌرُقُ فَلَا شُفْعَةَ."
It should be divisible; pre-emption does not apply to what is indivisible. 1020
الرَّابِعُ: أَنْ يَكُوْنَ مِمَّا يَنْقَسِمُ، فَأَمَّا مَا لاَ يَنْقَسِمُ، فَلاَ شُفْعَةَ فِيْهِ.
1016. Because the hadiths of pre-emption, such as that of Jâbir (given in condition 3 of Ibn Qudâmah’s text here), only mentioned land and real estate. Shuf‘ah in real estate is approved unanimously
1017. ‘Common property’ here means that each owner has an undivided interest in the entire property.
1018. (A) + (+M, +S): Once a property’s boundaries are clearly demarcated, neighbors no longer have the right of pre-emption. They cite Jâbir’s hadith and argue that granting the right of pre-emption to all neighbors will cause hardship to too many sellers and buyers. The hardship that will befall many buyers is that they will not be able to purchase the properties they desire because the sale will be pre-empted. (-H): The neighbor who shares some border(s) with the seller will have the right of pre-emption, even if the lots were divided with well demarcated borders. He argued that avoiding the harm of getting a troublesome neighbor warrants giving him or her that right, and he cited the hadith of Abu Râfi‘ that was mentioned above. (“The neighbor is more entitled to the property adjacent to him or her.”)
1019. (Ag). This wording is Bukhari’s.
1020. (A) + (+M, +S): Wells, small outdoor bathrooms, and narrow alleys that cannot be divided are excluded from the right of pre-emption. Validating the right of pre-emption in this case would harm the seller, who would not be able to divide the property with the original partner and take his or her own share. Also, potential buyers would hesitate to make offers because of the right of the pre-emptor.
[The one wishing to pre-empt] must take the whole property [being sold]. 1021 If he or she asks for only a part of it, the right of pre-emption becomes invalid. When there are two pre-emptors, their right of pre-emption is proportionate to their shares. 1022 If one person gives up his or her right, the other has to either take the whole property [being sold] or leave it [that is, give up any right to pre-emption].
الْخَامِسُ: أَنْ يَأْخُذَ الشِّقْصَ كُلَّهُ، فَإِنْ طَلَبَ أَخْذَ بَعْضِهِ، بَطَلَتْ شُفْعَتُهُ، وَلَوْ كَانَ لَهُ شَفِيْعَانِ، فَالشُّفْعَةُ بَيْنَهُمَا عَلَى قَدْرِ سِهَامِهَمَا، وَإِنْ تَرَكَ أَحَدُهُمَا شُفْعَتَهُ، لَمْ يَكُنْ لِلآخَرِ إِلاَّ أَخْذُ الْكُلِّ، أَوِ التَّرْكِ.
The pre-emptor must be capable of paying the price; this right of pre-emption is dropped if he or she cannot pay the entire price. 1023 If the price is fungible, 1024 he or she has to pay the equivalent, but if it is not, then he or she has to pay its value. If they
السَّادِسُ: إِمْكَانُ أَدَاءِ الثَّمَنِ، فَإِنْ عَجِزَ عَنْهُ، أَوْ عَنْ بَعْضِهِ، بَطَلَتْ شُفْعَتُهُ، وَإِذَا كَانَ الثَّمَنُ مِثْلِيًّا، فَعَلَيْهِ مِثْلُهُ، وَإِنْ لَمْ يَكُنْ مِثْلِيًّا، فَعَلَيْهِ قِيْمَتُهُ. وَإِنِ اخْتَلَفَا
(a) + (-H, -M2, -S2): The right of pre-emption applies here too, and the proof is the generality of the hadith of Jâbir. Also, the benefit of validating the right of pre-emption is stronger here, since the seller will get the (full) price of his or her share, and the seller’s partner will get the ownership of the entire property. Co-ownership of an indivisible property may bring about more difficulty than co-ownership of a divisible property, so giving the co-owners the right of pre-emption will enable them to acquire the whole property and have no partners in it.
1021. That is, the pre-emptor must purchase the entire share which the partner/co-owner is selling. If the pre-emptor asks to buy only part of it, the partner may refuse because of the disadvantage of not being able to sell the whole share in one transaction.
1022. If a land is owned by three partners, and one of them wishes to sell his or her share, then the two other partners will be entitled to the right of pre-emption in proportion to their original shares. If one of them owns twice as much land as the other, he or she is entitled to pre-emption concerning two-thirds of the share that is being sold (by the third partner to another party), while the other partner will be entitled to one-third.
1023. The judge will give the pre-emptor a reasonable period of time (A/SM: 3 days) to collect the money.
1024. Such as when one’s share in a property is sold for other than cash – for example, for a ton of rice, a car, or another similar commodity. A fungible property is one whose individual units are capable of mutual substitution. The equivalent here (mithl) is the exact like, which is possible in mithliyât (fungibles such as a certain measure of wheat), where it is possible to substitute the actual product with an equivalent measure of the same product. For non-fungibles (qeemiyât, such as a piece of furniture), the value is what is owed, since it is not easy to find the exact like.
dispute over the price and none of them can provide evidence, then the final word is that of the buyer, who must take an oath.
فِيْ قَدْرِهِ، وَلاَ بَيِّنَةَ لَهُمَا، فَالْقَوْلُ قَوْلُ الْمُشْتَرِيْ مَعَ يَمِيْنِهِ.
The pre-emptor has to claim his or her right of pre-emption as soon as he or she is aware (of the sale of the property to someone else); otherwise, the pre-emption is void. An exception is when the pre-emptor is incapable of claiming this right due to traveling, imprisonment, 1025 illness, or young age. 1026 In these cases, the pre-emptor is entitled to the right to pre-emption once he or she is able to claim it. However, if the pre-emptor is able to call on someone to witness the request of pre-emption but does not, his or her pre-emption is annulled. Even if the pre-emptor is unaware of the selling until three or more sell it to one another in succession, he or she has the right to demand it from any one of them. If the pre-emptor requests it from the first, the second would then claim from the first what has been taken from him or her, and similarly the third would claim from the second.
السَّابِعُ: الْمُطَالَبَةُ بِهَا عَلَى الْفَوْرِ سَاعَةَ يَعْلَمُ، فَإِنْ أَخَّرَهَا، بَطَلَتْ شُفْعَتُهُ إِلاَّ أَنْ يَكُوْنَ عَاجِزًا عَنْهَا؛ لِغَيْبَةٍ أَوْ حَبْسٍ، أَوْ مَرَضٍ، أَوْ صِغَرٍ، فَيَكُوْنُ عَلَى شُفْعَتِهِ مَتَى قَدَرَ عَلَيْهَا إلاَّ أَنَّهُ إِنْ أَمْكَنَهُ الإِشْهَادُ عَلَى الطَّلَبِ بِهَا، فَلَمْ يُشْهِدْ، بَطَلَتْ شُفْعَتُهُ. فَإِنْ لَمْ يَعْلَمْ حَتَّى تَبَايَعَ ذٰلِكَ ثَلاَثَةٌ أَوْ أَكْثَرُ، فَلَهُ مُطَالَبَةُ مَنْ شَاءَ مِنْهُمْ ، فَإِنْ أَخَذَ مِنَ الأَوَّلِ رَجَعَ عَلَيهِ الثَّانِيْ بِمَا أُخِذَ مِنْهُ، وَالثَّالِثُ عَلَى الثَّانِيْ.
1025. These measures will make the co-owner and potential buyer reach out to the potential pre-emptor and inform him or her of the potential sale. If they want to pre-empt the sale, they will have to pay the full price offered by the potential buyer.
1026. A child may own a property through inheritance or other means, such as when the guardian of his or her estate buys a property with the child’s money. According to this position of (A), a child will retain the right of pre-emption until they reach the age of rushd (majority, full legal age). This is meant to protect the right of the child in case the guardian does not ask for pre-emption, but it may also cause some hardship to the co-owner. The co-owner may ask the guardian to divide the property, which will allow him or her to sell to anyone, or the co-owner may sell to the child if the guardian deems this in the interest of the child.
(a) + (-M, -S): If the child’s guardian did not claim the right of pre-emption because it was not in the interest of the child, then the right to pre-emption is dropped, and it will not wait for the child to reach the age of rushd.
(-H): If the guardian drops it, it is dropped whether or not it was in the interest of the child.
If the pre-emptor claims the right, and there are trees or a building on it that belong to the buyer, then the pre-emptor has to compensate the buyer unless the buyer chooses to pull them (the trees) out without harm. 1027
If there are crops or fruit that are showing (signs of fruition), they are kept for the buyer until the time of harvest or picking.
وَمَتَى أَخَذَهُ، وَفِيْهِ غَرْسٌ، أَوْ بِنَاءٌ لِلْمُشْتَرِيْ، أَعْطَاهُ الشَّفِيْعُ قِيْمَتَهُ، إِلاَّ أَنْ يَشَاءَ الْمُشْتَرِيْ قَلْعَهُ مِنْ غَيْرِ ضَرَرٍ فِيْهِ. وَإِنْ كَانَ فِيْهِ زَرْعٌ أَوْ ثَمَرٌ بَادٍ، فَهُوَ لِلْمُشْتَرِيْ مُبَقًّى إِلَى الْحَصَادِ أَوِ الْجِذَاذِ.
[When a third party] buys a share of land and a sword [or any other unconnected object or property] in one contract, the pre-emptor in this case has the right to take the land only, in accordance with its share [of the full price]. 1028
وَإِنِ اشْتَرَى شِقْصًا وَسَيْفًا فِيْ عَقْدٍ وَاحِدٍ، فَلِلشَّفِيْعِ أَخْذُ الشِّقْصِ بِحِصَّتِهِ.
1027. The harm here means harm to the trees, buildings, or any structures on the land. If there is harm, the trees or buildings are left as is, and the pre-emptor should pay the buyer their value.
1028. If the seller sells a sword and a piece of land in one transaction, the pre-emptor will have the right to the land. He or she will get it from the buyer for its share of the price (value), so if the value of the land is 80% of the total price and the sword 20%, the pre-emptor will get the land for 80% of the offered price in that transaction (and will not have to buy the sword).
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