First pillar: the object of pre-emption (al-ma'khudh)

The object of pre-emption (al-ma'khudh) is the locus of the shuf'a, that is, the thing the preemptor wants to acquire by it: the land and the immovable property. Pre-emption is established by consensus among the jurists for the partner holding an undivided share in the sold property: as long as it has not been partitioned, his right of pre-emption is established by consensus. They nevertheless disagreed about the neighbor, about pre-emption over a right of use (manfa'a) and about pre-emption over movable goods ('urud), as detailed below.

First, the pre-emption of the partner in unpartitioned property: the people of knowledge are unanimous in granting it to the partner holding an undivided share in his partner's portion of an undivided property, on account of what Jabir ibn Abdallah (may Allah be pleased with him) reported:

The Messenger of Allah (peace and blessings of Allah be upon him) ruled pre-emption in every undivided co-ownership, whether a house or a walled enclosure: it is not permitted for him to sell until he has notified his partner; if he wishes he takes, if he wishes he leaves; if he sells without notifying him, his partner is more entitled to take it back.Reported by al-Bukhari (2138) and Muslim (1608)

Jabir also reported:

Whoever has a co-ownership share in a land or a house has no right to sell before asking his partner's leave: if he wishes, he takes it, and if he wishes, he leaves it.Reported by Abd al-Razzaq in his Musannaf (14403) and Ibn Abi Shayba in his Musannaf (22730)

Imam Abu Bakr Ibn al-Mundhir (may Allah have mercy on him) said: it is established that the Messenger of Allah placed pre-emption in every undivided property; when the boundaries are fixed and the paths diverted, there is no pre-emption. The people of knowledge are also unanimous in establishing pre-emption for the partner who has not been made to contribute in what is sold of land, house or enclosure (al-Ishraf 6/152; al-Ijma' 509). Imam Ibn Battal said after citing the hadith of Jabir: the jurists agreed on this hadith and made pre-emption obligatory for the partner in the undivided shares of the dwelling and of everything the boundaries delimit and partition can bear (Sharh Sahih al-Bukhari 6/376). Imam Ibn Abd al-Barr said: the scholars are unanimous that pre-emption, in houses, lands, storerooms and dwellings, takes place among the partners in the undivided shares of all of that, and that it is a sunna agreed upon which must be honored (al-Istidhkar 7/67). Imam al-Nawawi said: the Muslims are unanimous on the establishment of pre-emption for the partner in the property as long as it is not partitioned (Sharh Sahih Muslim 11/45).

The jurists agree that whatever can be partitioned of the property admits pre-emption: for instance the large spacious bathhouse which, once divided, is not damaged by the division and can be used as two baths, or the well from which two wells can be made with water rising from both. The same applies when the well comes with a stretch of land allowing the well to fall within one of the two shares. The scholars nevertheless disagreed about what cannot be partitioned, or whose division would annihilate the sought benefit, such as the small bathhouse, the small mill, the axle (idad), the narrow alley, or the narrow passage between two houses through which no one can pass: is pre-emption valid there or not?

Malik in one transmission, the Shafi'is in the most authentic view and the Hanbalis in the apparent of the madhhab require that the sold property in which pre-emption is established be partitionable; what is not partitionable, such as the small bathhouse, the small millstone, the narrow passage which, once divided, gives no access to either, or the narrow space, admits no pre-emption, for its division would nullify its benefit. Whatever loses its sought benefit once divided and ceases to provide the use it provided before the division, like a small bath or a small mill that cannot be doubled, admits no pre-emption. This is on account of what is reported from the Prophet:

There is no pre-emption in a forecourt (fina'), nor in a path, nor in a narrow lane (manqaba).Reported by Abu Ubayd in Gharib al-Hadith (3/121)

The manqaba is the narrow path between two houses which no passerby can use; this statement is transmitted by Abu al-Khattab in Ru'us al-Masa'il. And it is reported from Uthman (may Allah be pleased with him):

There is no pre-emption in a well nor in a stallion.Reported by Malik in the Muwatta (1398), Abd al-Razzaq in his Musannaf (14428) and Ibn Abi Shayba (22071)

For these schools the argument is the hadith: "When the boundaries are fixed and the paths diverted", and boundaries are only fixed in what accepts partition; the hadith thus means that pre-emption is established in everything that accepts division as long as it is not divided. Moreover, establishing pre-emption in the indivisible harms the seller: he cannot free himself from the pre-emption weighing on his share through division, the buyer may withdraw because of the preemptor to the seller's detriment, and the sale itself may not take place, so that establishing pre-emption leads to negating it. It may also be answered that pre-emption is only established to repel the harm of co-sharing, with the particular facilities it requires, and that harm does not exist in the indivisible (al-Ishraf ala Nukt Masail al-Khilaf 3/149-150, no. 1002; al-Taj wa-l-Iklil 4/351-352; Sharh Mukhtasar Khalil 6/164-165; al-Sharh al-Kabir with Hashiyat al-Dasuqi 5/213-214; Tahbir al-Muktasar 4/433; al-Hawi al-Kabir 7/233; al-Bayan 7/103-104; al-Najm al-Wahhaj 5/225; Mughni al-Muhtaj 3/321-322; al-Dibaj 2/412; al-Mughni 5/181; Sharh al-Zarkashi 2/166; al-Mubdi' 5/207; Kashshaf al-Qina' 4/169-170; Sharh Muntaha al-Iradat 4/198; al-Rawd al-Murbi' 2/131).

The Hanafis, Malik in another transmission, the Shafi'is in the view opposite to the most authentic, and the Hanbalis in a transmission establish pre-emption both in the partitionable (houses, storerooms, villages) and in the indivisible (small bathhouse, well, mill), because it was instituted to remove harm, and that harm is greater in the indivisible than in the partitionable; the texts obliging pre-emption were moreover not detailed, as in the hadith of Jabir ibn Abdallah:

Pre-emption applies to every co-ownership in a land, a house or an enclosure: it is not permitted to sell without offering it to one's partner, who takes or leaves; if he refuses, his partner is more entitled to take it as long as he has not been given leave.Reported by Muslim (1608)

The cause of pre-emption is contiguity in ownership and its wisdom is repelling the harm of bad neighborliness; harm in the indivisible, which becomes permanent, is greater than in the partitionable. Both harms exist, moreover, before the sale, and it is for the partner who desires to free himself from them to sell to his partner; if he sells to someone else, the Law has given the latter the right to take it, as expressed by the hadith of al-Bukhari and Muslim cited above (al-Hidaya 4/34; al-Inaya 13/483; al-Jawhara al-Nira 3/391; al-Ikhtiyar 2/51; al-Lubab 1/506; al-Ishraf 3/149-150, no. 1002; al-Taj 4/351-352; Sharh Mukhtasar Khalil 6/164-165; al-Sharh al-Kabir 5/213-214; Tahbir 4/433; al-Hawi 7/233; al-Bayan 7/103-104; al-Najm 5/225; Mughni al-Muhtaj 3/321-322; al-Dibaj 2/412; al-Mughni 5/181; Sharh al-Zarkashi 2/166; al-Mubdi' 5/207).

Pre-emption attaches to ownership (raqaba), not to usufruct

The majority of the jurists (the Hanafis, the Malikis in one view, the Shafi'is and the Hanbalis) established textually that pre-emption takes place only in ownership, not in the right of use. If two men jointly rent a house and one of them wants to sublet his share to the other, that is permitted, but without pre-emption, for pre-emption is established in ownership, not in usufructs.

Imam al-Kasani (may Allah have mercy on him) said: there is no pre-emption for someone who inhabits a house by lease, nor for a house sold before the purchase, nor for a house turned into a mosque, nor for a house made into a waqf, whether the judge validated it or not according to those who permit the waqf, for his ownership of it has ceased without passing to anyone (Bada'i' al-Sana'i' 5/14). The Shafi'is say: there is no pre-emption except for the partner in the raqaba (the ownership substance) of the property; it is not established for the neighbor nor for the partner in something other than the raqaba, such as the partner in the right of use alone, even if the ownership was by bequest (Mughni al-Muhtaj 3/322).

Malik in one transmission admits that co-ownership may extend to usufructs: the partner in the right of use may then claim pre-emption. Shaykh al-Alish (may Allah have mercy on him) writes: there is no pre-emption for a partner in a lease; if two people rent a house and one leases out his share of the usufruct, there is no pre-emption for his partner according to one of Malik's two views, and there is according to the other. In the Mudawwana, Ibn al-Qasim: if two men rent a house between them, each may lease out his share; Malik: no pre-emption for his partner. Ibn Naji: what he mentioned about the right to lease one's share is not disputed; the absence of pre-emption is the well-known view (mashhur). Ashhab and Ibn al-Muwazz say: he has pre-emption. Ibn al-Hajib: concerning fruits, writing and the lease of land for cultivation there are two views; al-Mudawwi did not intend the specificity of leasing land for cultivation but every lease; both views go back to Malik, and Ibn al-Qasim's madhhab in the Mudawwana is the lapse of pre-emption, which is the view of Abd al-Malik, Mutarrif and al-Mughira; its obligation is the view of Mutarrif, Asbagh and Ashhab (Minhaj al-Jalil 7/192-193; al-Mabsut 14/95; Asna al-Matalib 2/364; Mughni al-Muhtaj 3/322; Nihayat al-Muhtaj 5/226; al-Insaf 6/253; Kashshaf al-Qina' 4/168; Sharh Muntaha al-Iradat 4/194).

Secondly: the pre-emption of the neighbor

The jurists disagreed about the neighbor: whether the right of pre-emption is established for him or not, after agreeing to grant it first to the partner. The majority (Malikis, Shafi'is and Hanbalis in the madhhab) requires for pre-emption an unpartitioned co-ownership: the neighbor therefore has no pre-emption, on account of the hadith of Jabir:

The Messenger of Allah (peace and blessings of Allah be upon him) ruled pre-emption in everything unpartitioned; when the boundaries are fixed and the paths diverted, there is no pre-emption.Reported by al-Bukhari (2138) and Muslim (1608)

In a wording: "Pre-emption only takes place in what is not partitioned; when the boundaries are fixed and the paths diverted, there is no pre-emption" (authentic hadith: Abu Dawud 3514, Ibn Majah 2499). This hadith proves the absence of pre-emption for the neighbor: when the boundaries are fixed there is no pre-emption, and the neighbor has delimited his property from his neighbor's with no sharing with him; and "pre-emption in what is not partitioned" negates it in everything partitioned.

The beginning of the hadith thus establishes pre-emption in the undivided and negates it in the divided, the particle "innama" affirming what is mentioned and negating what exceeds it; the end negates pre-emption when the boundaries are fixed and the paths diverted, which is the case between two neighbors. Moreover, taking by pre-emption appropriates the buyer's property without his consent, violating the protection of his ownership; a harm inherent in the acquisition forbids that right, except where a text establishes it in the undivided in a way hardly conceivable rationally: in the divisible, the original rule stands, or the right is established as a means to repel a necessary harm, that of the division, which can only be repelled by pre-emption; the harm of neighborliness, however, is not necessary: it can be repelled by complaint to the authority or by matching him, so pre-emption is not needed.

Ibn Qudama (may Allah have mercy on him) said: pre-emption was established where co-sharing exists, contrary to the original rule, for a meaning absent from the place of dispute, so it is not established there. The explanation of the absence of meaning: the partner may be annoyed by the arrival of another partner, and need pushes him to co-sharing, or the newcomer demands partition, so that the partner suffers the decrease of his property's value and the facilities he will have to create; none of that exists in already divided property (al-Mughni 5/179; al-Tamhid 7/48). Al-Mawardi (may Allah have mercy on him) said: the hadith contains two proofs: his saying "pre-emption in what is not partitioned", the definite article embracing the whole genus, so no pre-emption takes place in the divided; and his saying "when the boundaries are fixed there is no pre-emption", which explicitly states the lapse of pre-emption with the absence of mixture. If it is objected that he only negated pre-emption through subsequent division, there are two answers: the statement is carried on all division, subsequent or prior; or he negated pre-emption in the divided by the very fact of establishing it in the undivided. Abu Dawud reported from Ahmad ibn Hanbal, from Abd al-Razzaq, from Ma'mar, from al-Zuhri, from Abu Salama, from Jabir:

The Messenger of Allah (peace and blessings of Allah be upon him) only placed pre-emption in what is not partitioned; when the boundaries are fixed and the paths diverted, there is no pre-emption.Authentic hadith: reported by Abu Dawud (3514) and Ibn Majah (2499)

This chain is stronger for both proofs: "innama" affirms what is joined and negates what is separated, as in "deeds are only by intentions" (al-Bukhari 1). If it is objected that he negated pre-emption by the diversion of paths, which is not the case of the neighbor: the paths diverted by partition are specific to the withdrawal of the undivided shares the partner carves out to reach his property; once partition occurs, that carving ceases, whereas the other due paths never cease. Ibn Jurayj reported from al-Zuhri, from Abu Salama or Abu Sa'id or both, from Abu Hurayra that the Messenger of Allah said: "When the land is partitioned and bounded, there is no pre-emption in it."

The proof by analogy: what distinguishes the sold property prevents the obligation of pre-emption, as with two people between whom a through road passes: if the sold property has no state in which co-sharing is expected, pre-emption is not established in it, by analogy with the undivided shares of plantations and buildings. The principles of the Law, moreover, distinguish the rulings of shared and unshared property: whoever frees his share of a slave is charged with valuing the rest by himself alone; whoever frees part of his slave frees him entirely; whoever begins repairing part of his wall is judged to repair it entirely. These principles require that pre-emption, if established in co-ownership, be absent outside it: it is only obliged to repel harm, not to introduce it; granting it to the neighbor introduces harm, for the buyer raises the price by manipulation (najsh) knowing the neighbor will take it; nothing of the sort exists in co-ownership, where the partner repels that harm through partition. What was instituted to remove harm must not admit harm: pre-emption is deserved in co-ownership only for an insurmountable harm, the burden of partition, a meaning absent outside co-ownership (al-Hawi al-Kabir 7/228-230).

Qadi Abd al-Wahhab (may Allah have mercy on him) said: pre-emption through neighborliness is not deserved, contrary to Abu Hanifa, on account of the Prophet's saying: "Pre-emption in what is not partitioned; when the boundaries are fixed there is no pre-emption", which contains three proofs: he informed that the locus of pre-emption is the undivided, negating its obligation elsewhere; the argument of address, its attachment to the undivided indicating the opposite for the divided; and its explicit text on the lapse with division. For it is a possession bounded by limits, and every pre-emption deserved by co-ownership lapses with partition: example of a house among three partners, each preempting what his partner sells; once partition takes place, with one door in the middle and the others at the ends, if the owner of one end sells, pre-emption belongs to the middle owner, while the other end owner loses a pre-emption he had before the partition.

The Hanafis and Ahmad in one transmission, which is the choice of the Shaykh of Islam Ibn Taymiyya and of Ibn al-Qayyim, establish pre-emption for the neighbor, on account of what is reported from the Prophet:

The neighbor is more entitled to the pre-emption of his neighbor, and it is awaited for him even if he is absent, when their path is one and the same.Authentic hadith: reported by Abu Dawud (3518), Ibn Majah (2494) and Ahmad (14292)

This is an explicit text on the subject. Ibn Abbas reported from the Prophet:

Whoever owns a land and wants to sell it must offer it to his neighbor.Authentic hadith: reported by Ibn Majah (2493)

And Samura reported from the Prophet:

The neighbor of the house is more entitled to the house of the neighbor or the land.Authentic hadith: reported by Abu Dawud (3517) and al-Tirmidhi (1368)

Neighborliness is indeed joined to the sale, so that pre-emption may be deserved through it as through mixture; and pre-emption was only obliged out of fear of the bad cohabitation of the one who enters the property, a risk existing in the house as in co-ownership, so pre-emption must be obliged to the neighbor as to the partner. The right of the permanent resident (the neighbor) precedes the right of the newcomer; every meaning requiring pre-emption for the partner finds its like in the neighbor's right: people differ enormously in neighborliness, some harm one another, enmities settle in, and that harm is permanent, repelled only by the neighbor's consent: if he wishes, he keeps the newcomer; if he wishes, he takes back the property at its price and frees himself from the burden of neighborliness and its evils (I'lam al-Muwaqqi'in 2/146-147).

It is reported from Abu Rafi' that Sa'd had offered him a house for four hundred mithqals, and he said: had I not heard the Messenger of Allah (peace and blessings of Allah be upon him) say: "The neighbor is more entitled to what is adjacent to him", I would not have given it to you (al-Bukhari 6577). Ibrahim ibn Maysara said: I heard Amr ibn al-Sharid say: al-Miswar ibn Makhrama came, put his hand on my shoulder and took me to Sa'd; Abu Rafi' then said to al-Miswar: will you not tell him to buy from me my house which is within my dwelling? He said: I will give him no more than four hundred, struck or cast; he said: I was offered five hundred in cash and I refused; had I not heard the Prophet say: "The neighbor is more entitled to what is adjacent to him", I would not have sold it to you (or: I would not have given it to you) (al-Bukhari 6576). The saqib designates what is adjacent: the neighbor is more entitled to what touches him and draws near him; the version "the neighbor is more entitled to his pre-emption" is also reported, an explicit text of the subject. It follows that whoever wants to sell his property must offer it to his neighbor in consideration of the right of neighborliness, as illustrated by the saying: "Jibril kept advising me about the neighbor until I thought he would make him an heir"; Sa'd indeed lowered the price to give effect to this meaning, neighborliness being most conducive to good relations and the avoidance of disputes.

These schools also answer: the right of pre-emption through co-ownership is only established to repel the harm of the intruder, a harm expected in neighborliness; the legal occurrence there therefore indicates here. Attributing the text to the harm of division is not sound: division is not a harm but the completion of the benefits of ownership, a harm not obliged to be repelled since division is lawful; that is why pre-emption through co-ownership has no place in movables. To the objection that the harm can be repelled by matching or by complaint to the authority: that may not succeed, and the procedure itself is a harm, whereas the harm of the bad neighbor recurs at every moment and leaves the person in permanent harm. As for the hadith, its beginning does not negate pre-emption in the divided: "innama" does not require the negation of the unmentioned, as in the verse:

"I am only a human being like you"
Surah Fussilat, 6

which does not negate that another be a human being like him; and its end is an argument against them: the Prophet suspended the lapse of pre-emption upon two conditions, the fixing of boundaries and the diversion of paths, and what is suspended upon two conditions does not lapse by the fulfillment of one; the lapse occurs through a single condition, the fixing of boundaries, even without the diversion of paths. The whole is, moreover, interpretable: when the boundaries are fixed they diverge, and when the paths are diverted they part, hence no pre-emption; or there is no pre-emption as long as there remains one whose boundary and path have not separated, pre-emption lapsing through division just as it lapses through return with the option of inspection (khiyar al-ru'ya), division carrying a sense of mutual exchange (Bada'i' al-Sana'i' 5/4-5; al-Mabsut 14/90-91; Sharh Mushkil al-Athar 4/120-121; al-Ikhtiyarat, p. 243).

Ibn al-Qayyim (may Allah have mercy on him) concludes: sound analogy requires this view, for co-sharing in the rights of ownership is akin to co-sharing in ownership itself, and the harm of co-sharing in rights is like, or even closer to, the harm of co-sharing in ownership; its removal benefits the partner without harming the seller or the buyer. The meaning for which the pre-emption of co-ownership in property is obliged therefore exists in co-ownership in rights: this madhhab is the most balanced of the madhhabs, the best supplied with proofs and the closest to justice. Whoever reflects on the hadiths of the pre-emption of neighborliness sees them explicit, and the invalidity of carrying them onto the partner or onto a right of neighborliness other than pre-emption becomes clear; success comes from Allah (I'lam al-Muwaqqi'in 2/150-151).

Conditions of pre-emption by neighborliness and the ranking of those entitled

The Hanafis, as stated, hold neighborliness to be a cause of pre-emption, but they did not adopt it in its generality: not every neighbor deserves pre-emption. The ranking of those entitled is as follows. Pre-emption is first deserved by the partner (khalit) in the sold property itself, the one who has not been made to contribute, for connection through co-ownership is the strongest, being present in every part. Then the partner in the rights of the sold property, such as the shirb, that is, the share of water or of path; the neighbor has no pre-emption against him, for he is a partner in the facilities and more exposed to harm than the neighbor. If the partner in the rights waives it, the adjacent neighbor then takes, the one whose wall touches the other's wall with no passage between the two because of their close contact, even if a through road exists between them, in which case there is no pre-emption.

The adjacent neighbor is himself of two kinds: by the contact of the backs of the two properties, the door of the preempted property then opening onto another path, whether a through one or not; or by lateral contact, right or left, the door of the preempted property then opening onto the public road. If the door opens onto a private path, each of the two is the other's partner in the right of the sale, and all the inhabitants of the path are preemptors, whether facing or adjacent. The absolute mention of "adjacent" shows that one adjacent by a single handspan on one side partners with the one adjacent on three sides in the right of pre-emption; just as the more connected one does not deprive the other of pre-emption, he cannot take a greater portion than the preempted property. If, however, the two properties face each other with a through road between them, there is no pre-emption, however close the doors, for the separating road removes the harm: what counts in pre-emption is proximity and the connection of one property to the other, which holds for the adjacent neighbor, not for the facing one.

Likewise, pre-emption is not established for the facing neighbor even if his door is very near the other's, the public road removing the harm: bad neighborliness is not realized unless the property of one is joined to that of the other, and there is between them no co-ownership in the rights of the property. The right to take by pre-emption is established for the adjacent neighbor so that he may benefit by the enlargement of the property and its facilities, possible when one of the two houses can serve as a facility of the other, impossible for houses facing each other. However, pre-emption is established for the facing neighbor in a private path if all the houses open onto a non-through way: it is established for all, not because they face each other, but because they are partners in the rights and it is possible to make all the houses into a single dwelling.

Finally, the path or the shirb must be private for pre-emption through co-ownership to be deserved: the private path is the one that is not a thoroughfare; the private shirb is the one in which ships do not sail, that in which they sail being public, according to Abu Hanifa and Muhammad; according to Abu Yusuf, the private shirb is a watercourse irrigating two or three water-wheels, beyond that it is public. If a non-through way has a long non-through branch, the sale of a house below grants pre-emption to the inhabitants of the lower part only, while a sale above grants pre-emption to the inhabitants of both ways; the same applies to a small canal from which a smaller canal branches, by analogy with the path. Our shaykh and most of the shaykhs say: partners in a canal, if they can be counted, then it is small, otherwise it is large (al-Mabsut 14/94-96; al-Hidaya 4/25; al-Inaya 13/427; al-Jawhara al-Nira 3/382; al-Lubab 1/502; Mukhtasar al-Wiqaya 2/89; Durrar al-Hukkam 2/677).

Thirdly: pre-emption in the upper and lower storeys

The jurists disagreed about houses within one building, or a house with a lower and an upper level: does the owner of one level have the right of pre-emption over the sale of the other? The Hanafis say: if the lower level belongs to one man and the upper to another, and the owner of the lower sells his level, the owner of the upper has pre-emption; and if the owner of the upper sells his, the owner of the lower has pre-emption. If the path of the upper level runs through the lower, the right of pre-emption occurs through co-ownership in the path; if it runs through the main road, it occurs through neighborliness, neighborliness being known only through contiguity, which is established between the two properties.

If the owner of the upper does not take the lower by pre-emption until the upper is demolished: according to Abu Hanifa and Abu Yusuf his pre-emption becomes void; according to Muhammad it does not. The view of Abu Hanifa and Abu Yusuf rests on the fact that pre-emption here is only established through neighborliness, which is known only through contiguity, and the contiguity ceased before the taking, as if the preemptor had sold, before taking, the house that entitled him to pre-emption. Muhammad's view: entitlement to pre-emption here rests on the location of the building, not on the building itself, the latter being movable and pre-emption not being deserved through a movable; the right over the location remains, so what confers pre-emption subsists. If the lower and the upper are sold in a ruined state: according to Abu Hanifa and Abu Yusuf there is no pre-emption for the owner of the upper, on the principle of the right attached to the building; according to Muhammad he has pre-emption, the right resting on the location of the upper level, which subsists.

If the lower belongs to one man, the upper to another, and an adjoining house is sold, pre-emption is for both; if the house is demolished before the taking, pre-emption belongs to the owner of the lower according to Abu Yusuf, what confers pre-emption (the land) subsisting, while the owner of the upper has nothing, his cause having vanished. Muhammad says: pre-emption is for both, each one's right subsisting: he may build the upper when the owner of the lower builds his, or build the lower himself and then the upper, preventing the owner of the lower from using it until he gives him his right. If the lower belongs to two men and the upper, undivided, to one of them together with another, and the latter sells the lower and the upper: the upper goes to his partner in the upper and the lower to his partner in the lower, each being partner in the sold property as to his right and neighbor as to the other's right, or partner in the right if their path is one. There is no pre-emption for the lower partner in the upper, nor for the upper partner in the lower: the partner in the substance of the plot or its equivalent is preferred to the neighbor and to the partner in the rights (al-Mabsut 14/132; Bada'i' al-Sana'i' 5/9; al-Muhit al-Burhani 7/491; al-Bahr al-Ra'iq 8/145; al-Fatawa al-Hindiyya 5/164, 169).

The Malikis say: there is no pre-emption for one who has a load (himal) on a wall if the wall is sold, for he is not a partner; nor for the owner of the upper over the lower, nor of the lower over the upper, for lack of co-ownership. If one of the partners in the upper level and the roof sells to the owner of the lower, there is no pre-emption since it is a newly erected building; if the roof belongs to the upper, there is no pre-emption for the lower, who is a neighbor and not a partner. Do the partners of the upper have pre-emption since the roof rests on their property, or not since it is not land? Two views are held for them (al-Dhakhira 7/313). The Shafi'is say: there is no pre-emption in an upper storey without an established lower level, whether one sells a section of a room built on a roof belonging to both, to one of them, or to a third: having no location, it is like movables. If the lower is undivided between two and the upper belongs to one of them, and the owner of the upper sells his upper with his share of the lower: pre-emption is established in his share of the lower only, not in the upper, there being no co-ownership in it nor any right of the preemptor over it. Likewise, if two people are partners in a land bearing a tree belonging to one of them, and he sells the tree with his share: pre-emption is established in the land in proportion to her share of the price, not in the tree (Rawdat al-Talibin 3/697; al-Najm al-Wahhaj 5/224-225; Mughni al-Muhtaj 3/321; al-Dibaj 2/411-412; Tuhfat al-Muhtaj 7/108; Nihayat al-Muhtaj 5/224).

The Hanbalis say: if a share of the upper storey of an undivided house is sold (the upper), whether the roof beneath belongs to the owner of the lower alone, to both, or to the owner of the upper: there is no pre-emption in the upper, it being a separate building; nor in the roof, which has no land, being like detached buildings. Ibn Qudama adds: it can bear the establishment of pre-emption, for it has a location, like the lower level. If the lower is undivided between two and the upper reserved to one of the two partners, and the owner of the upper sells his share of the lower: the partner has pre-emption in the lower only, not in the upper, for lack of co-ownership (al-Mughni 5/180; al-Insaf 6/259-260; Kashshaf al-Qina' 4/171-172; Matalib Uli al-Nuha 4/110).

Fourthly: pre-emption in movable goods and animals

The mass of the people of knowledge (Hanafis, Malikis, Shafi'is and Hanbalis in the madhhab) hold that pre-emption is not established in goods ('urud) such as movables and animals, on account of the Prophet's saying: "There is no pre-emption except in a house or a walled enclosure", and because pre-emption was only obliged to repel the lasting harm of bad neighborliness, whereas ownership of a movable does not last like that of an immovable. If a good, food or an animal is undivided between two people and one of them sells his share to a stranger, the sale is valid for the stranger and the partner cannot take it back by pre-emption (al-Hidaya 4/34; al-Jawhara al-Nira 3/391-392; al-Lubab 1/506; al-Sharh al-Kabir with al-Dasuqi 5/222).

Imam Ibn al-Mundhir (may Allah have mercy on him) said: they disagreed about pre-emption in goods and animals. Most of the people of knowledge say: there is no pre-emption in them: this is the view of Ata', al-Hasan al-Basri, Malik, al-Thawri, al-Awza'i, Abdallah ibn al-Hasan, Qatada, Rabi'a, al-Shafi'i, Ahmad, Ishaq and the people of opinion. Al-Hakam and Hammad say: there is no pre-emption in the slave. Ata' said once: pre-emption applies to everything, even to the garment, but divergent reports are transmitted from him. Abu Bakr Ibn al-Mundhir said: I hold the first view; there is no authentic hadith on the subject that would require it (al-Ishraf 6/154-155). Ibn Battal said: as for the sale of goods held in undivided shares, most scholars hold that there is no pre-emption in them: pre-emption only takes place in houses and lands; this is the view of Ata', al-Hasan, Rabi'a, al-Hakam, Hammad, Malik, al-Thawri, the Kufans, al-Awza'i, al-Shafi'i, Ahmad and Ishaq; the divergent report from Ata' is as if nothing came from him on the subject, which amounts to a consensus on the absence of pre-emption in movables and animals (Sharh Sahih al-Bukhari 6/335). Qadi Abd al-Wahhab said: there is no pre-emption in goods and animals, contrary to him from whom that is reported, on account of the Prophet's saying: "Pre-emption in what is not partitioned" and: "When the boundaries are fixed and the paths diverted, there is no pre-emption", and because it is something transported and moved like gold and silver (al-Ishraf ala Nukt Masail al-Khilaf 3/141-142, no. 995).

The Mudawwana al-Kubra (14/402) reports what receives no pre-emption: "What do you say of what is neither houses, nor lands, nor date palms, nor trees: is there pre-emption in them according to Malik?" Answer: Malik said: there is no pre-emption except in houses, lands, date palms and trees. Question: and trees? Answer: the tree is like the palm. Question: did Malik establish pre-emption in the fruit? Answer: there is no pre-emption either in a debt, an animal, ships, cloth, food, nor in anything of the goods, nor in a scaffold pole, nor a stone, nor anything else than what I have mentioned to you, whether it be partitionable or not according to Malik.

Imam al-Nawawi (may Allah have mercy on him) said: they agreed that there is no pre-emption in animals, clothes, furnishings and the rest of movables. The qadi adds: some diverged by establishing pre-emption in goods, a transmission from Ata': it is established for everything, even the garment; Ibn al-Mundhir reports the same; and a transmission from Ahmad is reported in which it is established in animals and a freestanding building (Sharh Sahih Muslim 11/45-46). Qadi al-Imrani (may Allah have mercy on him) divides things into three categories: what receives pre-emption, sold alone or with something else; what never receives it; and what receives it in following something else, not sold alone. The first category is the al-'iras (planted land, plot, house): if one of the two partners sells his share, his partner preempts, the view of most scholars except al-Asamm, who denies it absolutely, for it harms the owners: the buyer who knows it will be taken from him will no longer wish to buy, which harms the seller, and the partner may fail to buy. Our proof: the reports cited; his is not authentic, for people are seen buying plots while knowing pre-emption will be deserved upon them. The second category is everything transported and moved: food, clothes, slaves; the view of most of the people of knowledge. Malik is said to have held: pre-emption is established in all of that; but this attribution is incorrect: al-Damiri al-Maliki reports in Tahbir al-Muktasar (4/442) that "no good" means here no pre-emption, as with animals, and the attribution by some Shafi'is to Malik of a pre-emption in movables is rejected. Our proof: the Prophet's saying: "Pre-emption in what is not partitioned..." does not cover what is transported; and Jabir reported that the Prophet said: "There is no pre-emption except in a house or an enclosure", negating pre-emption for anything else (al-Bayan 7/99). The third category receives pre-emption in following something else: the tree sold with its plot in the land falls under the indivisible of the property; it is also possible that no pre-emption is ever established in it, the location following the tree: if pre-emption does not occur in the tree alone, it does not occur in its following (al-Mughni 5/180). Al-Mawaq al-Maliki reports from Ibn Harith: they agreed on dropping pre-emption in goods, furnishings and what resembles them (al-Taj wa-l-Iklil 4/359).

Imam Ibn Qudama (may Allah have mercy on him) said: whatever is sold alone from the land admits no pre-emption, whether transferable, like animals, clothes, ships, stones, crops and fruits, or not transferable, like the building and the planting sold alone: this is the view of al-Shafi'i and the people of opinion; it is reported from al-Hasan, al-Thawri, al-Awza'i, al-Anbari, Qatada, Rabi'a and Ishaq: there is no pre-emption in movables. Contradictory reports come from Malik and Ata': sometimes thus, sometimes "pre-emption applies to everything, even to the garment". Ibn Abi Musa said: another transmission from Abu Abdillah (Ahmad) is reported: pre-emption is obligatory in what does not divide, such as stones, the sword and the animal. Abu al-Khattab said: another transmission from Ahmad is reported: pre-emption takes place in the building and the planting even if sold alone, Malik's view, on account of the generality of "pre-emption in what is not partitioned", and because pre-emption was instituted to repel harm, which is greater in the indivisible; Ibn Abi Mulayka reported that the Prophet said: "Pre-emption applies to everything". For us, the hadith "pre-emption in what is not partitioned..." only covers what we mentioned, namely the indivisible of the land, as the boundaries and paths show; it does not last permanently and therefore admits no pre-emption, like the storing of food; the hadith of Ibn Abi Mulayka is mursal, absent from the trustworthy books; the ruling on the bucket-wheel (gharraf) and the water-wheel is that of the building; as for the tree sold alone with its plot, its ruling is that of the indivisible of the property (al-Mughni 5/180).

Second pillar: the taker, that is, the preemptor

Conditions are required of the preemptor taker. First: that he be the owner of what he preempts. The jurists require the taker to be the owner of the preempted property: pre-emption is only established for the partner in the raqaba of the property, not for the neighbor (according to the majority, as seen), nor for the partner outside the raqaba, such as the partner in the right of use alone, as detailed in the first pillar.

Second: that the preemptor be a Muslim. The jurists do not disagree that pre-emption is obligatory for the Muslim against the dhimmi as against the Muslim, and for the dhimmi against the dhimmi as for the Muslim against the Muslim. They disagreed over whether it is established for the dhimmi against the Muslim. The majority (Hanafis, Malikis and Shafi'is) holds that the Muslim and the dhimmi are equal in deserving pre-emption: the ruling is not specific to the Muslim, it applies to the partner in general even if he is a dhimmi; if a property is undivided between a Muslim and a dhimmi, and the Muslim sells his share to a Muslim or a dhimmi, the dhimmi partner may take by pre-emption, on account of the generality of the Prophet's saying:

The partner is a preemptor.Weak hadith: reported by al-Tirmidhi (1371)

and because it is a right instituted to remove harm, in which the Muslim and the disbeliever are equal as in the return for a defect; on account of a meaning derived from ownership like hire; for whatever the Muslim may acquire in exchange, the dhimmi may too, as in sales; whoever acquires by sale acquires by pre-emption like the Muslim; rights instituted to remove harm in contracts equalize the Muslim and the dhimmi like the return for a defect; and what concerns the removal of co-ownership in property equalizes the two, by analogy with the manumission of the dhimmi's share in a slave (Mukhtasar Ikhtilaf al-Ulama 4/244; al-Hidaya 4/35; al-Jawhara al-Nira 3/392; al-Lubab 1/507; al-Ishraf 3/140-141, no. 994; al-Taj wa-l-Iklil 4/348; Sharh Mukhtasar Khalil 6/162; al-Sharh al-Kabir 5/209; Tahbir al-Muktasar 4/428; al-Hawi al-Kabir 7/302-303; al-Bayan 7/111-112; Sharh Sahih Muslim 11/46; Mughni al-Muhtaj 3/322).

The Hanbalis do not establish pre-emption for the dhimmi against the Muslim, on account of what is reported from Anas (may Allah be pleased with him), marfu':

There is no pre-emption for a Christian.Rejected hadith (munkar): reported by al-Tabarani in al-Saghir (569), Ibn Adi (7/56) and al-Bayhaqi (6/108); Ibn Adi said: his hadiths are very obscure

which specifies the generality of their other proofs. Pre-emption is a meaning specific to property, resembling the elevation of a building: pre-emption was only established for the Muslim to repel the harm to his property, the removal of the Muslim's harm preceding that of the buyer; and from the Muslim's harm preceding the Muslim's it does not follow that the dhimmi's precedes the Muslim's: the Muslim's right is weightier and its consideration more prior. Pre-emption is established, contrary to the original rule, in consideration of the Muslim partner's right; the dhimmi not being within the meaning of the Muslim, the rule remains; as for the pre-emption of the Muslim against the dhimmi, it is established by the generality of the proofs: established for the Muslim against the Muslim despite the gravity of his inviolability and the consideration of his right, it holds all the more strongly against the dhimmi given his lowliness. Ibn Qudama says: it is established for the dhimmi against the dhimmi, on account of the generality of the reports, the two being equal in religion and inviolability, as the Muslim against the Muslim; we know of no disagreement in this (al-Mughni 5/224; al-Kafi 2/453; al-Mubdi' 5/230; Kashshaf al-Qina' 4/200; Manar al-Sabil 2/267).

Imam Ibn al-Qayyim (may Allah have mercy on him) devotes a section to the question: disbelievers are prevented from seizing the properties of the Muslims. The reality is that the disbelievers are prevented from everything over which a right is established for the Muslims: property, slave, Muslim wife, the revival of dead land, acquisition by pre-emption from a Muslim; for the purpose of the call is that the word of Allah be supreme, and the jizya was only admitted out of a passing necessity, a judgment conditioned by necessity being measured by its measure. None of the early generations established for them a right of pre-emption against a Muslim; Imam Ahmad adopted it, a singularity by which he stands out from the other three schools: for were we to oblige pre-emption for a dhimmi, the share would become the Muslim's property, and we would have obliged the Muslim to transfer the ownership of his property to a disbeliever by coercion, against the principles. Pre-emption is in itself a right of one of the two partners against the other, resembling the rights obligatory upon the Muslim for the Muslim: answering the call, visiting the sick, the prohibition of selling above his brother's sale or of proposing marriage for his brother's fiancée.

Abdallah ibn Ahmad asked his father about the Jewish and Christian dhimmi: do they have pre-emption? He said: no. The Magian? Even more strictly. Harb asked Ahmad: do the People of the Covenant have pre-emption? He said: no. Abu Dawud heard Abu Abdillah asked: does the dhimmi have pre-emption? He said: no. This is the transmission of Abu Talib, Salih, Abu al-Harith and al-Athram, all from him: no pre-emption for the dhimmi; Abu al-Harith added: "against the Muslim". Al-Athram said: he was asked why; he answered: because he has no right like the Muslim's right. Al-Sha'bi used to say: no pre-emption for the dhimmi. Sufyan reported from Humayd, from his father: pre-emption is only for the Muslim, not for the dhimmi. Ahmad reported from Abd al-Rahman ibn Mahdi, from Hammad ibn Zayd, from Layth, from Mujahid: no pre-emption for the Jew nor for the Christian. Al-Khallal reported that Muhammad ibn al-Hasan ibn Harun said: Abu Abdillah was asked in my hearing about pre-emption for the dhimmi; he said: no pre-emption for the dhimmi, he has not the Muslim's right. Isma ibn Isam reported from Hanbal: I heard Abu Abdillah say: no pre-emption for the Jew nor for the Christian; that is only for the Muslims among themselves. According to the transmission of Ishaq ibn Mansur: no pre-emption for the Jew or the Christian. He was asked why; he said: because the Prophet said: "Two religions will not join in the Arabian Peninsula." Such is the madhhab of Shurayh, al-Hasan and al-Sha'bi.

Imam Ahmad argued with three proofs. The first: pre-emption is among the rights of the Muslims one against the other, so the dhimmi has no right in it; the subtlety of this argument is that pre-emption belongs to the right of the owner, not to the right of the property. The second: the Prophet's saying:

Do not initiate the greeting with the Jews and the Christians; and if you meet them on a road, force them to its narrowest part.Reported by Muslim (2167)

This hadith shows that he granted them no right in the shared road when they compete with the Muslims; how then would he grant them the right to seize the Muslim's property by force? It is rather the indication of the prohibition of tearing the land from the Muslim's hand and expelling him from it for the disbeliever's right, so as to remove from him the harm of co-ownership; and the harm of co-ownership upon the disbeliever is lighter with Allah than letting him overturn the Muslim's property by force. The third proof: his saying:

Two religions will not join in the Arabian Peninsula.Reported by Imam Malik in the Muwatta (1584), both as mawquf and marfu'

The Prophet indeed ruled their expulsion from their land and its transfer to the Muslims, so that the word of Allah be supreme and the religion entirely Allah's; how then allow them to seize the Muslims' lands by force? Pre-emption is also a right specific to property in which the dhimmi does not equal the Muslim, like the elevation of a building: elevation is an act within the air of one's own property; if he is prevented from it, how could he be allowed to seize the Muslim's property by force, while he is forbidden to act in its air in a manner that dominates the Muslim? Moreover, pre-emption was obliged to remove the preemptor's harm even if the buyer suffers one; if the buyer is a Muslim and the dhimmi is allowed to tear away his property by force, the dhimmi's right is given priority over the Muslim's right, which is impossible. It also entails a harm to the religion: the seizure by force of the Muslims' houses and their occupation by what displeases Allah instead of what pleases Him, against the rules of the Law; that is why marriage to Muslim women was forbidden to them (a form of domination), why the law of retaliation cannot take place between them and the Muslims, nor the hadd for slander, and why they are not enabled to own Muslim slaves. Allah said:

"Allah will never grant the disbelievers a way over the believers"
Surah an-Nisa, 141

and the greatest of ways is to let the disbeliever seize the Muslims' properties and expel them from them by force. He also said:

"The people of the Fire and the people of the Garden are not equal"
Surah al-Hashr, 20

this verse requires the negation of absolute equality between the Muslim and the disbeliever, for absolute equality is impossible between any two things whatsoever; it is with this verse that the one who denied retaliation between them and the Muslims argued. The dhimmi is, moreover, a dependent of ours in the abode, not an original among its people: according to al-Shafi'i he pays the jizya as rent for the place of residence and expansion in the abode of Islam; if he breaks the covenant he is attached to his haven and expelled from our abode to his; in the abode of Islam he has the status of the resident who benefits from it, not that of the true resident, and the right of residence cannot seize the share from its owner's hand. Allah said:

"We have certainly written in the Zabur, after the Reminder, that My righteous servants will inherit the earth"
Surah al-Anbiya, 105

and the Prophet said to the Jews: "Know that the earth belongs to Allah and His Messenger"; His righteous servants are its heirs and its true owners, the disbelievers being only dependents who benefit from it through the necessity of keeping them by the jizya; that is why many imams forbade them to buy kharaj land, because of the cancellation of the Muslim's right to the kharaj; how then allow them to seize the Muslim's land and property by force? Had the dhimmis been true owners, the Prophet would not have recommended their expulsion from the Arabian Peninsula nor said: "If I live, I will expel the Jews and the Christians from the Arabian Peninsula", even while they kept their covenant; had they truly owned their houses, he would not have expelled them without a breach of covenant. It is upon this that Ahmad argued the absence of pre-emption for them against a Muslim, and this is among the most subtle and finest understandings of fiqh.

Pre-emption stands upon an owned thing and an owner; if it is specified by the property alone (the immovable), it is more fitting that it be specified by the owner: the Muslim. For the one who says "pre-emption is established contrary to analogy", this is very apparent: for it is an authorization to tear away another's property by force for the preemptor's benefit, and it must therefore be restricted to that upon which the proof stood and consensus was established. As for us, pre-emption is not contrary to analogy, but the Lawgiver's wisdom and the analogy of His principles obliged it to repel the harm of co-ownership as far as possible: the seller having lost interest in the share and being content with the price, excluding it in favor of his partner to prevent the harm of the entering partner is more fitting, all the more as he receives the price without losing anything. But this right is that of the Muslim against the Muslim; the dhimmi has no right in it, like the other rights of the people of Islam among themselves. Since many jurists prevent the dhimmi from acquiring by the revival of dead land, such as Abdallah ibn al-Mubarak, al-Shafi'i, Ahmad in one transmission and many Malikis, although revival does not involve tearing away a Muslim's property, it is all the more fitting to prevent him from tearing away the Muslim's land and property by force. Likewise, if he is forbidden to share with the Muslim the renewal of ownership in what is undivided and built for the abode of Islam, it is more fitting to prevent him from seizing a property upon which the Muslim's ownership has been established: the removal of specific ownership and its seizure by force are more harmful than the sharing of what is undivided among all. Those who oblige pre-emption have no text from the Book of Allah, from the sunna of the Messenger of Allah, nor from the consensus of the community: at most general expressions, such as "The Messenger of Allah ruled in what is not partitioned" and "Whoever has a partner in a house or an enclosure may not sell without having notified him", statements brought for the rulings of properties, not for the generality of the owners of the religion or others.

They have no analogy either in which the original and the derivative are equal in requiring the ruling: the analogy of the disbeliever upon the Muslim is among the most corrupt; likewise the analogy of those upon whom pre-emption is obliged with those upon whom it is due. For retaliation is required of the dhimmi without his being able to require it of the Muslim; the hadd for slander is required of him without his requiring it; the one who irrevocably divorced his wife in a mortal illness has inheritance required against him without requiring it; the Muslim can require the elevation of the building over the dhimmi without the dhimmi requiring it; the Muslim may marry the disbelieving woman and buy the disbelieving slave, the dhimmi may not marry the Muslim woman nor buy the Muslim slave; the Muslim may take the disbeliever into service, not the reverse. Likewise their analogy of pre-emption with the return for a defect: the return belongs to the rectification of wrong and the recovery of the missing portion left on the price; what has it to do with the authorization to tear away the Muslim's property by force? Likewise their analogy with the option in the sale: the conditional option is a stipulation in one's own favor; as for the option of the session, whoever does not establish it cannot invoke it; and the one who establishes it differs from him, for the option of the session is a legal cause of the contract, like the exchange, the taking of possession and the safeguard. Likewise their analogy with acquisition by the revival of dead land, an acquisition without compensation reverting to the Muslims: who has settled this subject over which the jurists have disputed from old to new across four states? The point: if we say the dhimmi does not acquire by revival, the argument falls; if he acquires, the difference from pre-emption is threefold: by revival he tears away no one's property, he revives a dead land in which no one has a right, like the permitted acquisition of wood, grass and minerals; there is no harm to the Muslim, nor coercion nor humiliation, unlike the authorization to expel him from his dwelling and his land; and he thereby populates a dead land, a benefit for him and for Islam, unlike forcing the Muslim and taking his land and house from him. The analogy of pre-emption with revival is therefore invalid; it is answered with the compound answer: if there is no difference between revival and taking by pre-emption, the ruling is one, namely the absence of ownership through both; if there is a difference, the obligation falls; Allah knows best (Ahkam Ahl al-Dhimma 1/586, 600).

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