Islamic Fiqh > Endowments (waqf) and property > Shuf'a: the right of preemption > What is acquired without compensation
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Updated on 25 September 2026 at 6:57 PM
This part belongs to the full section: All sections of this part.
Ibn al-Qayyim's companions say: pre-emption is not established in a gift with a counter-gift (thawab) stipulated until mutual taking of possession, for the gift is only realized by taking, which resembles a sale with a condition of option. Answer: he acquires it for a compensation that is wealth, so he has no need of taking possession to deserve pre-emption, as in the sale; and considering the word "gift" is not acceptable: the compensation has diverted the word from its meaning and made it an expression of the sale, especially according to them, marriage being concluded by it while it is not valid by a gift (al-Mughni 5/182; Bada'i' al-Sana'i' 5/10-11; al-Ikhtiyar 2/51-52; al-Jawhara al-Nira 3/393; al-Lubab 1/507; Mukhtasar al-Wiqaya 2/92; al-Fatawa al-Hindiyya 5/160; Rawdat al-Talibin 3/702-703; al-Najm al-Wahhaj 5/228; Mughni al-Muhtaj 3/323; Tuhfat al-Muhtaj 7/113-114; al-Kafi 2/418).
The jurists disagreed about what is acquired without monetary compensation, such as a gift without counter-gift, alms (sadaqa), a bequest or an inheritance: is pre-emption established in it? The majority (Hanafis, Malikis in the well-known view, Shafi'is and Hanbalis) holds that it is not established in what is acquired without compensation: if a property is undivided between two people and one of them gifts his share to a third or gives it as alms, there is no pre-emption; for the taker by pre-emption acquires from the one he takes from along the very path by which the latter acquired, namely compensation; the compensation being absent, if he took, he would take either against value or gratuitously: the first way is closed since the donor did not acquire against value, the second since compensation upon a donation is not instituted; the taking is thus impossible (Bada'i' al-Sana'i' 5/10-11; al-Ikhtiyar 2/51-52; al-Jawhara 3/393; al-Lubab 1/507; Mukhtasar al-Wiqaya 2/92; al-Fatawa al-Hindiyya 5/160; al-Ishraf 3/143-144, no. 977; al-Ma'una 2/230; al-Taj 4/361; Bidayat al-Mujtahid 2/195; Sharh Mukhtasar Khalil 6/170; al-Sharh al-Kabir 5/224; Tahbir 4/444; Rawdat al-Talibin 3/702-703; al-Najm 5/228; Mughni al-Muhtaj 3/323; Tuhfa 7/113-114; al-Mughni 5/182; al-Kafi 2/418; al-Ifsah 2/26).
Malik in one transmission obliges pre-emption for every ownership transferred, with or without compensation, such as the gift without counter-gift and alms, with the exception of inheritance, in which no one establishes pre-emption. The proof of pre-emption in the gift without counter-gift and alms is the Prophet's saying:
Pre-emption applies to every co-ownership.Reported by Muslim (1608)
and his saying:
The partner is a preemptor.Weak hadith: reported by al-Tirmidhi (1371)
for the donor acquired by his own choice, pre-emption thus attaching to it as to the sale; and it is by this that he distinguished inheritance (al-Ishraf 3/143-144, no. 977; al-Ma'una 2/230; al-Taj 4/361; Bidayat al-Mujtahid 2/195; Sharh Mukhtasar Khalil 6/170; al-Sharh al-Kabir 5/224; Tahbir 4/444).
The jurists disagreed about what is transferred for a non-monetary compensation, such as making one's share of a property the mahr of one's wife, using it as the compensation of a divorce by khul', or exchanging it for the waiver of retaliation for an intentional homicide: is pre-emption established in it? The Hanafis and the Hanbalis in the madhhab do not oblige pre-emption there.
The Hanafis say: there is no pre-emption in the house upon which one marries, nor in the one by which one divorces a woman by khul', nor in the one given as rent, nor in the settlement of an intentional homicide, nor in the manumission of a slave by it; for pre-emption is only obliged in the exchange of wealth for wealth, and these compensations are not wealth: obliging it there would be against the Law and would overturn its locus. The value of the benefits of the body in marriage is necessary by the marriage contract, so it does not appear in the right of pre-emption; likewise blood and manumission are not valuations. The same applies if one marries her without mahr and then sets the house as her mahr, unlike selling it for a mahr of the equivalent or a named one, an exchange of wealth for wealth. If one marries her over a house on condition that she return a thousand, there is no pre-emption in the whole house according to Abu Hanifa, the meaning of sale being accessory (tabi') therein: no pre-emption in the original, hence none in the accessory; pre-emption was instituted for the intended monetary exchange, to the point that the investing partner (mudarib) who sells a house with its profit gives the owner of the capital no pre-emption in the profit share, it being accessory. Abu Yusuf and Muhammad say: it is obliged in the share of the thousand, a monetary exchange in his right. Likewise there is no pre-emption in a house exchanged in settlement by denial; in case of settlement by acknowledgment, however, pre-emption is obliged: the one who settles by denial keeps the house, claiming it never left his ownership; likewise by silence, having possibly spent money to ransom his oath and cut off his opponent's clamor; in case of acknowledgment, he recognizes the claimant's ownership and acquired it by the settlement: a monetary exchange. Whether he settles by acknowledgment, silence or denial, pre-emption is obliged in all cases, for he took it as compensation for his right according to his claim (al-Mabsut 5/78; Bada'i' al-Sana'i' 5/11; al-Hidaya 4/35-36; al-Inaya 13/486; al-Jawhara al-Nira 3/393-394; al-Lubab 1/507-508).
The Hanbalis in the madhhab: there is no pre-emption in what is compensated by something other than wealth, such as the mahr, the compensation of khul' and the settlement of an intentional homicide; for it is a property acquired without wealth, resembling the gifted and the inherited; its return against a mahr of the equivalent or a value is impossible since these are not its compensation, as with the inherited: the taking becomes difficult (al-Mughni 5/182-183; al-Kafi 2/418; al-Mubdi' 5/204; al-Insaf 6/252-253; Kashshaf al-Qina' 4/167-168). The Malikis, the Shafi'is and the Hanbalis in one view establish pre-emption in what is acquired by a pure compensation like the sale, or a non-pure one like the mahr, the compensation of khul' and the settlement of a homicide. The Malikis say: every share acquired against compensation receives pre-emption, unless there occurs what cuts it, whatever the mode of transfer: sale, lease, khul', mahr, settlement for a crime indemnity, the value of a lost property, an intentional or accidental homicide; on account of the generality of "the partner is a preemptor" and of "pre-emption in what is not partitioned", without distinction; it is a form of exchange by which what owes pre-emption is acquired, so it is deserved there as in the sale. We say: pre-emption is obliged in the forms of exchange by their agreement on the sale, every compensation keeping its rank; and in marriage and khul' because marriage is a form of exchange: if what owes pre-emption is acquired through it, it is deserved there as in the sale. If pre-emption is obliged in the mahr, it is taken against the value of the share, which is most equitable between the preemptor and the woman. The share is taken back, in the settlement of an intentional homicide, against its value, and in the accidental homicide against the diya, for what is obliged in case of intention is retaliation, the diya being due only by consent or the impossibility of retaliation; it is not so with the accidental, what is obliged being the diya, the share being its substitute (al-Ma'una 2/230-231; al-Ishraf 3/137-138, no. 992).
The Shafi'is say: pre-emption is established in what is acquired by a pure compensation like the sale, explicitly, and a non-pure one like the mahr, the compensation of khul' and the settlement of an intentional homicide; if it is an accidental or quasi-intentional homicide, what is obliged is only camels, the settlement being invalid in the most authentic view because of the unknown qualities. A settlement against money establishes pre-emption definitively, as does hire, the exchange being valid; the capital of the salam is of the same kind: if one buys a share and then concludes a salam with the seller, it is as if he had sold it to him (Rawdat al-Talibin 3/703; al-Najm al-Wahhaj 5/229-230; Kanz al-Raghibin 3/106; Mughni al-Muhtaj 3/324; al-Dibaj 2/413; Tuhfat al-Muhtaj 7/114; Nihayat al-Muhtaj 5/227).
If a house is undivided between two people and one of them sells his share with a condition of option, the jurists agree that if the option belongs to the seller alone or to both together, pre-emption does not take place until the sale becomes binding: the partner cannot take the share by pre-emption before the expiry of the option, for pre-emption is established when the seller's ownership leaves the sold property, and his option prevents that departure, unless he renounces it. Imam Ibn Rushd (may Allah have mercy on him) said: the scholars agreed that in a sale subject to an option for the seller, pre-emption does not take place until the sale becomes binding (Bidayat al-Mujtahid 2/195).
The jurists disagreed when the option belongs to the buyer alone: is pre-emption established, or must one wait for the sale to become binding? The Malikis, the Shafi'is in the view opposite to the more apparent, and the Hanbalis in the madhhab do not establish pre-emption before the expiry of the option period and the irrevocability of the contract: it is a sale with an option, without pre-emption, as if the option belonged to the seller; the contract is not perfected as long as the option remains, and pre-emption is only obliged after the completion of the sale; the rules of the contract with option do not vary according to whether it benefits the seller or the buyer, the proof being that the cash payment is not deserved there and neither party can dispose of it without choosing; the same applies to pre-emption. And because the taking would bind the buyer to the contract before his contentment, impose the debt upon him and make him lose his right of return at the same price (al-Ma'una 2/236; al-Ishraf 3/155, no. 1009; Bidayat al-Mujtahid 2/195; al-Dhakhira 7/307; al-Taj wa-l-Iklil 4/362; Sharh Mukhtasar Khalil 6/170; al-Sharh al-Kabir 5/224; Tahbir al-Muktasar 4/433; al-Mughni 5/183-184; al-Kafi 2/434; al-Mubdi' 5/229; al-Insaf 6/308).
The Hanafis, the Shafi'is in the more apparent view and the Hanbalis in a derivation establish pre-emption if the option belongs to the buyer: he has left the seller's ownership and the obligation of pre-emption is built upon it. The Hanafis say: if the option is the buyer's, pre-emption is obliged, his option not preventing the property from leaving the seller's ownership, upon which the right of pre-emption rests (Bada'i' al-Sana'i' 5/13; al-Hidaya 4/36; al-Inaya 13/486; Tabyin al-Haqa'iq 5/254; al-Bahr al-Ra'iq 8/158; al-Jawhara al-Nira 3/403; al-Lubab 1/512; Mukhtasar al-Wiqaya 2/94; al-Mughni 5/183). The Shafi'is in the more apparent view: if the option belongs to the buyer alone, the share is taken immediately by pre-emption if one holds that ownership during the option belongs to the buyer, the weightiest view of the madhhab; otherwise, if the ownership belongs to the seller or is suspended, it is not taken immediately: the seller's ownership has not departed in the first case, and its departure is unknown in the second.
Imam al-Imrani (may Allah have mercy on him): if a house is between two people and one of them sells his share with a condition of option: if the option is for both or for the seller, the preemptor cannot take it before its expiry, for that would cut off the seller's option. If the option is for the buyer alone and ownership is held suspended or transferred only at the expiry of the option, the taking does not occur before, ownership not having been acquired by the buyer. If one holds that ownership transfers by the contract itself, can the preemptor take before the expiry? Two views: one, the choice of Abu Ishaq al-Marwazi, refuses: it is a sale with an option; the taking before expiry does not take place, as if the option belonged to the seller; the buyer stipulated the option for a purpose, and the preemptor's taking before the expiry deprives the buyer of it, so it is not permitted. The other, the choice of the two shaykhs Abu Hamid and Abu Ishaq, admits it: if he has the right to take after the buyer's right is settled by the expiry, it is more fitting that he be able before; and if the buyer discovers a defect and wants to return the share, the preemptor may take it and invalidate the buyer's right of return; the same applies here. If a house is between two people, one sells his share with an option for both or for himself alone, and then the second partner sells his share without an option before the expiry of the first option: the second seller has no pre-emption, his ownership having left the property; the buyer has no pre-emption in it either, having acquired it after the first sale. To whom does pre-emption in the second share belong? It depends on the view about who owns the property during the option: if ownership belongs to the seller, pre-emption in the second share belongs to the first seller; if it passes to the buyer by the contract, it belongs to the first buyer, and if he later rescinds his sale his right of pre-emption in the second does not lapse; if it is suspended upon the expiry of the option, pre-emption in the second share is likewise suspended: if both rescind, it belongs to the first seller; otherwise, to the buyer (al-Bayan 7/110-111; Rawdat al-Talibin 3/700; al-Najm al-Wahhaj 5/230-231; Kanz al-Raghibin 3/107; Mughni al-Muhtaj 3/324; al-Dibaj 2/413; Tuhfat al-Muhtaj 7/116; Nihayat al-Muhtaj 5/228).
The jurists of the four madhhabs (Hanafis, Malikis, Shafi'is and Hanbalis) agree that the establishment of pre-emption requires the preemptor's ownership of the raqaba of the preempted property to precede the sale, that is, that he owned a part of it before; for pre-emption was established to repel the partner's harm: without prior ownership there is no harm. If two people buy a house, or a part of it, together, even at different times and through different contracts, neither of them has pre-emption over the other, their acquisitions being simultaneous in time. Shaykh al-Dardir (may Allah have mercy on him) said: if they acquired the property together for compensation, neither of them has pre-emption over his companion, unless one of them sells to a stranger, in which case the other takes at that moment (al-Sharh al-Kabir with al-Dasuqi 5/212; al-Mabsut 14/178; al-Muhit al-Burhani 5/567; al-Fatawa al-Hindiyya 5/189; al-Dhakhira 7/305; al-Taj wa-l-Iklil 4/350; Sharh Mukhtasar Khalil 6/164; Tahbir al-Muktasar 4/431; Rawdat al-Talibin 3/700; al-Najm al-Wahhaj 5/232; Kanz al-Raghibin 3/107-108; Mughni al-Muhtaj 3/325; Tuhfat al-Muhtaj 7/118; al-Mughni 5/208; al-Mubdi' 5/207; al-Insaf 6/283; Kashshaf al-Qina' 4/186; Manar al-Sabil 2/271).
The fourth pillar deals with the effective taking of pre-emption through several questions. The first: with what does the preemptor take the preempted share? If the partner sells his share to a stranger for a known price and the other partner wants to take it by pre-emption, there are two cases. First case: the price is paid at once. The jurists agree that the partner then takes the share at the price of the contract, for the preemptor only deserves the share through the sale: he therefore deserves it by its compensation, not against a valuation; he pays the like of a fungible and the value of a non-fungible. Ibn Qudama says: if it is objected that the preemptor deserves the taking without his owner's consent and should therefore take it against its value, like the compelled man who takes another's food, the answer is that the compelled man deserves the taking because of a special need and its replacement is the value, whereas the preemptor deserves it because of the sale: had there been a gift or an inheritance there would be no pre-emption; he therefore deserves it by the sale's compensation. If the price is in dinars or dirhams, the preemptor gives their like; if it is a non-fungible such as clothes or animals, he takes the share against the value of the price: the view of most of the people of knowledge, of the people of opinion and of al-Shafi'i. It is reported from al-Hasan and Sawwar that pre-emption does not take place then, requiring the like of the price, which does not exist: the taking being impossible, it is not obliged, as if the price were unknown. Answer: the price is one of the price's two types and pre-emption is established by it as by a fungible; the like may be by form or by value, as in the replacement of a lost property. If the price is a fungible other than money, such as grains or dyes, our companions say he takes it against its like, the view of the people of opinion and of al-Shafi'i's companions, for what is obliged is the replacement of the price, like the like of a loan or of a lost property.
The preemptor deserves the share at the price upon which the contract settled: if the parties bargained and then changed the price during the option period, upward or downward, the change applies to the preemptor's right, for his right is only established at the completion of the contract and is deserved by the price of the moment of deserving; the option period is equivalent to the state of the contract, and the modification reaches it as if it were the moment of the contract. Once the option has expired and the contract is irrevocable, an increase counts as a gift and a decrease as a fresh discharge, and neither applies to the preemptor: this is al-Shafi'i's view. Abu Hanifa says: the decrease applies to the preemptor, not the increase, even though he attaches both to the contract: the increase harms the preemptor who does not own it, unlike the decrease. Malik says: if a sum that can be a price remains, the share is taken by it; if the greater part has been waived, he takes it at the whole original price. Answer: that is considered after the contract's consolidation and does not apply to the preemptor, like the increase; the preemptor having deserved the taking at the original price before the modification, the latter does not affect him; and their excuse is not correct: were the modification to apply to the contract, it would bind the preemptor even if harmful, like the increase during the option; a waiver after irrevocability resembles the waiver of the whole or the greater part according to Malik. If the price must be valued, its value is considered at the time of the sale, the time of deserving, without regard to later variations; if there is an option, the value is considered at the expiry of the option and the consolidation of the contract, the time of deserving pre-emption: al-Shafi'i's view. It is reported from Malik that he would take it against its value on the day of trial, but this statement is not correct: the time of deserving is the time of the contract; what increases afterwards is in the seller's property and does not accrue to the buyer, and what decreases comes from the seller's wealth and does not diminish the buyer's right (al-Mughni 5/200-201; Sharh al-Zarkashi 2/170; I'lam al-Muwaqqi'in 3/298; al-Mubdi' 5/223; Kashshaf al-Qina' 4/194; Manar al-Sabil 2/272; Matalib Uli al-Nuha 4/136; al-Jawhara al-Nira 3/409; al-Ikhtiyar 2/56; Mukhtasar al-Wiqaya 2/93; al-Lubab 1/516; Bidayat al-Mujtahid 2/195; Sharh Mukhtasar Khalil 6/165; al-Sharh al-Kabir 5/214-215; Tahbir 4/433; Mughni al-Muhtaj 3/328; Tuhfat al-Muhtaj 7/126-127; al-Dibaj 2/416).
The jurists disagreed when the partner sells his share at a deferred price and the preemptor wants to take it: at the same price, paid at once, or deferred as in the sale? The Malikis and the Hanbalis say that he takes it at the agreed term if he is solvent, otherwise he presents a solvent guarantor and takes it; for the preemptor follows the buyer in the amount of the price and its qualities, deferral being one of its qualities; the substitution of a guarantor is a surplus not imposed upon him, like the increase of the amount; if he is neither solvent nor provided with a guarantor, he does not take the share before accelerating the payment (Bidayat al-Mujtahid 2/195; al-Taj wa-l-Iklil 4/355; Sharh Mukhtasar Khalil 6/166; al-Sharh al-Kabir 5/217; Tahbir al-Muktasar 4/436; al-Mughni 5/202; Sharh al-Zarkashi 2/171; al-Mubdi' 5/225; al-Insaf 6/301-302; Kashshaf al-Qina' 4/196; Matalib Uli al-Nuha 4/138; al-Ifsah 2/25). In the Muwatta: Malik said, concerning a man who bought a share in undivided land on credit: if he is solvent, he has pre-emption at that price for that term; if there is fear that he will not pay at the due date, let him bring a solvent guarantor like the one from whom he bought the share, and it will be for him (al-Muwatta 2/715).
The Hanafis and the Shafi'is in the more apparent view give the preemptor the choice: to take at a spot price, or to wait, after consolidation through witnessing, until the due date and then take. The Hanafis specify that he cannot take it now at a deferred price: the preemptor only takes what the sale obliged, and the term did not come from the sale but from the condition, absent from the preemptor's right; the buyer's contentment is not the preemptor's contentment, for people differ among themselves. If the preemptor chooses to take at a spot price, the price remains owed by the buyer to the seller at its term as before: the taking from the buyer amounts to a fresh acquisition, as if he bought from him, without annulling the first sale (Tuhfat al-Fuqaha 3/61; Bada'i' al-Sana'i' 5/27; al-Jawhara al-Nira 3/418; al-Lubab 1/521-522). The Shafi'is in the more apparent view: if he bought on credit or by installments, the preemptor does not take deferred; he chooses between accelerating the payment to the buyer and taking the share at once, or waiting for the due date and taking afterwards, his right not lapsing through his delay with excuse: allowing a deferred taking would harm the buyer since liabilities differ, and imposing an immediate taking would harm the preemptor since the term counts as a portion of the price: this thus repels both harms and gathers both rights. If the buyer accepts the preemptor's solvency, the immediate taking becomes obligatory for him, otherwise his right lapses. According to the view opposite to the more apparent, he takes deferred, being placed at the buyer's rank. According to a third view, he takes it against a commodity which, sold to that term, would sell for that amount, in a compensation equal to the deferred price, the takings at spot and deferred being both impossible; this last view is closest to justice (Kanz al-Raghibin 3/111; al-Najm al-Wahhaj 5/236-237; Mughni al-Muhtaj 3/328; Tuhfat al-Muhtaj 7/130-131; Nihayat al-Muhtaj 5/234-235; al-Dibaj 2/417). Imam al-Mawardi reports that al-Shafi'i said: "If he bought it for a term, the preemptor is told: if you wish, accelerate the payment and accelerate the pre-emption; if you wish, wait until the term arrives." Al-Mawardi presents two views: the first, the old one, shared by Malik: the preemptor may accelerate the taking, the price being on his liability if he is trustworthy, otherwise he presents a trustworthy guarantor; al-Shafi'i said this is what most resembles the settlements of people. Its two arguments: the preemptor takes the buyer's place in the amount of the price, its qualities and its term, so he takes the like of the price and its term; and accelerating the deferred is an increase in the amount through the hierarchy of prices which the buyer cannot claim, whereas the preemptor's delay is an abandonment of his right which the buyer cannot impose upon him. The second view, the new one, that of Abu Hanifa: the preemptor does not accelerate the taking at a deferred price; he is told to choose between accelerating the payment to accelerate the taking, or waiting for the due date, paying and taking. Its two arguments: taking pre-emption at the deserved term falls among the contracts of settlement, and deserving does not include what is not a settlement; and the seller's contentment with the buyer's debt does not impose upon the buyer contentment with the preemptor's debt, just as the deceased's debt falls due because his master's contentment with his debt does not impose that of his heir (al-Hawi al-Kabir 7/253-254).
The jurists disagreed when the seller waives part of the price to the buyer after the contract's completion: does it also apply to the preemptor? The Hanafis say: the waived part falls from the preemptor's right and he takes the remainder, for waiving part of the price rejoins the origin of the contract and is reflected in his right, the contract being as if it had only been concluded for that amount. If the seller waives the whole price, nothing falls from the preemptor's right: the waiver of the whole does not rejoin the origin of the contract for lack of residual price; considering the increase would harm the preemptor, not the waiver: he therefore takes the whole price; if the waiver of the whole applied, the sale would become void, a sale without a price: it is therefore not valid in his right and he takes the whole. If the buyer increases the price for the seller, the increase does not bind the preemptor: considering it would harm him, he who deserves to take less, unlike the waiver which benefits him; likewise if the contract is renewed at a higher price, he may take at the original price (Bada'i' al-Sana'i' 5/27; al-Hidaya 4/31; al-Ikhtiyar 2/56; al-Inaya 13/466; al-Jawhara al-Nira 3/406-407; al-Lubab 1/515).
The Malikis say: if the seller waives part of the price to the buyer after irrevocability, one examines: if it is small, so that the remainder resembles a price for the share, the waiver applies against the preemptor; if it is large, beyond what is customarily bought, it is a gift to the buyer and does not apply against the preemptor: for what binds the preemptor is the amount the buyer disbursed in compensation for the share, not the surplus; and the large waiver, contrary to custom, is not charged to him because it has another cause: the gift, without intent of haggling over the sale; it is like a rescission of the first contract through a second compensation. Our proof: the large waiver is a gift and therefore does not make the preemptor's right fall, as if the seller had given him the whole price using the word gift; and it does not resemble the small waiver, the remainder remaining a price: the waiver is thus carried as a rescission of the contract and a fresh sale (al-Ishraf ala Nukt Masail al-Khilaf 3/153-154, no. 1008; al-Bayan wa-l-Tahsil 12/93).
The Shafi'is say: if the seller waives part of the price or increases it before the sale becomes binding (during the option period), it rejoins the origin of the contract; if he waives the whole price, there is no pre-emption for lack of a sale; what is increased or waived after the option period does not rejoin the price (Tuhfat al-Muhtaj with the marginalia of al-Shirwani and al-Abbadi 7/129; Nihayat al-Muhtaj with the marginalia of al-Shabramallisi 5/233-234). The Hanbalis say: if the seller waives part of the price after irrevocability, the preemptor has no recourse, the sale being binding from the buyer's side, who cannot rescind it (al-Mughni 5/194; Kashshaf al-Qina' 4/189; Matalib Uli al-Nuha 4/130).
The preemptor may be one or several, and the preempted likewise. If the preemptor is one and the preempted one, the jurists agree that he takes all or leaves all. If the preempted is one and the preemptors several, they also agree that pre-emption belongs to all of them, on account of the Prophet's saying: "Pre-emption applies to every co-ownership in a land, a house or an enclosure... each one being a partner" (Muslim 1608). They likewise agree that pre-emption is divided equally among them if their shares are equal. They disagreed when the shares differ: is it divided by heads or by shares? Example of a house among three people: Muhammad owns half of it, Omar a quarter and Zayd a quarter; Zayd wants to sell his share, and Muhammad and Omar take it by pre-emption: is the quarter divided in halves according to their heads, or according to their shares, Muhammad then taking two thirds of the quarter and Omar one third?
The majority (Malikis, Shafi'is in the more apparent view, Hanbalis in the apparent of the madhhab) divides the preempted property according to their shares of ownership: each according to his share, small or large. If a house is among three people: a half, a third and a sixth, and the first sells his half: the owner of the third takes two thirds of the half, that is, two shares, and the owner of the sixth takes its third, that is, one share; the first thus becomes a third of the house and the second holds two thirds of it. Pre-emption is indeed a right derived from prior ownership, therefore distributed according to the measure of the origin: like hire in undivided rentals, profit in a capital partnership, the slave's earnings, the yield and the fruits, divided according to the shares; likewise if the owners of a runaway slave, with unequal ownership, promise a dinar to whoever brings him back: he takes according to the shares of ownership, not by equalization. Pre-emption serves to repel harm, which reaches each one according to his share: the deserving of its removal therefore follows that ratio; and when the house is partitioned, the burden of building is apportioned according to ownership, not according to heads (al-Muwatta 2/715; al-Kafi 1/440; al-Ishraf 3/133-134, no. 990; al-Bayan wa-l-Tahsil 12/88; Bidayat al-Mujtahid 2/196; Sharh al-Zarqani 3/479; Jawahir al-Uqud 1/187; al-Bayan 7/144-145; al-Najm al-Wahhaj 5/242; Kanz al-Raghibin 3/116; Mughni al-Muhtaj 3/334; Tuhfat al-Muhtaj 7/142-143; Nihayat al-Muhtaj 5/243; al-Mughni 5/209-210; al-Kafi 2/423; al-Ifsah 2/23-24).
The Hanafis, the Shafi'is in the view opposite to the more apparent, and Ahmad in one transmission divide by heads when the preemptors are equal in the cause of deserving: the connection. They are therefore equal in deserving, and if one of them were alone he would take the whole pre-emption despite the smallness of his share: that is the mark of the perfection of the cause; the abundance of connection announces the abundance of yield, and preference is made by the strength of the proof, not by its quantity, there being no strength here of one against the other: the half is thus divided in two in the example, each taking his half (al-Hidaya 4/25; Mukhtasar al-Wiqaya 2/89; al-Jawhara al-Nira 3/407-408; al-Ikhtiyar 2/53; al-Lubab 1/515; Mughni al-Muhtaj 3/334; Tuhfat al-Muhtaj 7/142-143; Nihayat al-Muhtaj 5/243; al-Mughni 5/209-210; al-Kafi 2/423).
If all the partners are present and all want to take by pre-emption, there is no dispute, the division being a matter of the disagreement stated: by heads or by properties. If some want to take and others do not, the people of science agree that whoever wants has the choice between taking everything or leaving everything, without being able to take only his share, unless the other consents: for that would harm the buyer by splitting the transaction. Imam Ibn al-Mundhir said: they agreed that whoever bought a share in undivided land, some having waived pre-emption and others wanting to take, the one who wants takes everything or leaves it, without being able to take his share and leave the rest (al-Ijma' 510). The taking of a part indeed harms the buyer by splitting the transaction, and harm is not removed by harm: pre-emption is established contrary to the rule to repel the harm of the entering partner, the fear of bad sharing and the burden of division; taking a part of the share would not repel that harm and would therefore not realize the meaning that authorizes the derogation. If the preemptor is one, taking part of the property is not permitted: if he does so, his pre-emption lapses, for it does not split: if a part lapses, everything lapses, like retaliation (al-Hidaya 4/25-26; al-Inaya 13/433; al-Jawhara al-Nira 3/408; al-Bahr al-Ra'iq 8/145; al-Fatawa al-Hindiyya 5/197; al-Muwatta 2/715; al-Kafi 1/440; Sharh al-Zarqani 3/479; al-Taj wa-l-Iklil 4/370; al-Sharh al-Kabir 5/236; Sharh Mukhtasar Khalil 6/176; al-Bayan 7/145; al-Mughni 5/211; Sharh al-Zarkashi 2/171; al-Mubdi' 5/213; al-Insaf 6/276; Kashshaf al-Qina' 4/181).
The jurists of the four madhhabs agree that if some preemptors waive their pre-emption share in favor of some of their partners or of someone else, saying for instance: "I have assigned my right in the pre-emption to so-and-so", his right of pre-emption lapses and reverts to the remaining preemptors: for it is a waiver (afw), not a valid gift; it is therefore divided among the remaining preemptors according to their number or their shares, in accordance with the disagreement stated (al-Hidaya 4/25-26; al-Inaya 13/433; al-Jawhara al-Nira 3/408; al-Bahr al-Ra'iq 8/145; al-Fatawa al-Hindiyya 5/197; al-Kafi 1/440; al-Taj wa-l-Iklil 4/372; al-Bayan 7/145; al-Najm al-Wahhaj 5/244-245; Mughni al-Muhtaj 3/335; al-Mughni 5/211; Sharh al-Zarkashi 2/171; al-Insaf 6/276; Kashshaf al-Qina' 4/181).
The jurists disagreed when the causes of co-ownership differ: some being partners by inheritance as sharers of the same lot, others as agnates ('asaba). Imam Ibn Rushd reports that Malik used to say: the people of the single lot are more entitled to pre-emption if one of them sells, concerning those who share the property with them through agnation; the agnates do not enter into pre-emption over the people of fixed shares, whereas the latter enter over the agnates: if a deceased leaves a property inherited by two daughters and two cousins, and one of the daughters sells her lot, the other daughter preempts that lot alone, without the cousins; if one of the cousins sells his share, the daughters and the second cousin preempt. Ibn al-Qasim holds the same. The people of Kufa say: neither do the people of fixed shares enter over the agnates nor the agnates over the people of fixed shares; the people of the single lot preempt only among themselves: this is Ashhab's view. Al-Shafi'i in one of his two views: the people of fixed shares enter over the agnates and the agnates over the people of fixed shares: this is al-Muzani's choice and al-Mughira's view among Malik's companions.
The support of al-Shafi'i's madhhab is the generality of the Prophet's ruling in favor of pre-emption among partners, without distinguishing the people of the lot from the agnates. Whoever reserved pre-emption for the people of fixed shares saw co-ownerships of different causes, such as the people of fixed shares and the agnates, and likened them to co-ownerships differing by their object, with regard to division by properties. Whoever made the people of fixed shares enter over the agnates without the reverse practices istihsan without analogy: the people of fixed shares are more hindered than the agnates. If the preempted are two or more and the preemptor wants to preempt one of them without the other: Ibn al-Qasim says he takes everything or leaves it; Abu Hanifa, his companions and al-Shafi'i say he preempts whichever he wants: this is Ashhab's view. If two men sold a share of a man and the preemptor wants to preempt one of the two without the other, Abu Hanifa forbids it and al-Shafi'i permits it. If the preemptors are several and some want to preempt while the others waive pre-emption in the sales, the majority holds that the buyer says to the partner: preempt everything or leave, without being able to preempt according to his share except with the buyer's consent, nor to split the pre-emption over him without his agreement. Asbagh among Malik's companions says: if some of them waive the taking out of leniency towards the buyer, the preemptor takes only his share. Qadi Abd al-Wahhab says: partners who are relatives in the share are more entitled than foreign partners. Abu Hanifa says: all are equal, one of al-Shafi'i's two views. Our proof is his saying:
Pre-emption applies to every co-ownership.Reported by Muslim (1608)
which covers every form of co-ownership: every form of co-ownership receives the deserving of pre-emption, like co-ownership in the purchase (Bidayat al-Mujtahid 2/196-197; al-Ishraf ala Nukt Masail al-Khilaf 3/145-146, no. 999).
The jurists of the four madhhabs agree that if some preemptors are absent and the present one wants to take only his share, leaving the rest, that is not permitted for him: he takes all the shares, for no other claimant is known at present, and the absent one may claim or not; the present one's right therefore does not lapse through doubt. Or because taking part of the share splits the buyer's transaction, which is not permitted, as if he were alone; and his right cannot be deferred until his partners return, the delay harming the buyer. If he says: I take my share, and when my partners come, if they take their pre-emption so be it, otherwise I will take it, that is not permitted for him: he takes everything or leaves; if he waives, he has no taking with his partners if they come, and they may take everything or leave; if they all waive except one, he is told: take everything, otherwise leave. If the present one takes everything and they then return, they may all enter with him and divide, or leave; the minor with no preemptor is like the absent one, his majority being equivalent to the absent one's return (al-Jawhara al-Nira 3/408; al-Bahr al-Ra'iq 8/145; Durrar al-Hukkam 2/684-685; Bidayat al-Mujtahid 2/197; al-Taj wa-l-Iklil 4/370; Sharh Mukhtasar Khalil 6/176; al-Sharh al-Kabir 5/236; Tahbir al-Muktasar 4/459; al-Najm al-Wahhaj 5/245-246; Mughni al-Muhtaj 3/335; al-Mughni 5/211-212; Kashshaf al-Qina' 4/181-182; Matalib Uli al-Nuha 4/121).
The Hanafis say: if one of the preemptors is absent, the whole pre-emption is ruled for the present one, without keeping the absent one's share with the buyer, since the latter may not claim: pre-emption is therefore not delayed on the basis of doubt. If the absent one returns and claims his share while fulfilling the conditions, being equal in degree with the present one, his share is ruled for him: for example, if one preemptor is present and two are absent, the whole pre-emption is ruled for the present one; if one of the absent ones returns and claims, half of the preempted property is ruled for him, recovered from the preemptor; then if the second absent one returns and claims as well, a third of the preempted property is ruled for him, the shares thus becoming three equal thirds among them. If the absent preemptor is superior to the present one in degree, as soon as he returns and claims, his pre-emption voids the present one's and it is ruled for him; if he is inferior to him, nothing is obliged upon the second preemptor (al-Jawhara al-Nira 3/408; al-Bahr al-Ra'iq 8/145; Durrar al-Hukkam 2/684-685).
The preemptor is present or absent, and in each case he either knows of the pre-emption or does not. First case: the preemptor is present. If he is unaware of the pre-emption, his pre-emption does not lapse, by agreement among the jurists, even after a long time: it is an option to remove harm, which does not lapse through ignorance, like the buyer of a defective good who only learns of the defect long afterwards. But if he knows and is able to claim, must the claim be immediate or may it be deferred? The Hanafis, the Shafi'is in the most authentic view and the Hanbalis in the madhhab hold it immediate: if he knows and can claim, he must do so at once; if he delays, his pre-emption lapses, according to what Ibn Majah reports from Ibn Umar, marfu':
Pre-emption is like the untying of the tether-ring (iqal).Weak hadith: reported by Ibn Majah (2500); al-Busiri said: the chain is weak; Ibn Abi Hatim in al-Illal (1/479) reports that Abu Zur'a declared it rejected
its meaning being that it is lost through lack of initiative, like the stray camel whose tether-ring is untied without being caught. It is an option to repel harm from the property, therefore immediate like the option of return for a defect; and establishing it as deferred would harm the buyer: his ownership would not settle upon the sale, he would be prevented from building for fear of the taking, and the harm would not be repelled by paying its value, the loss usually exceeding the value, apart from the toil of heart and body (al-Jawhara al-Nira 3/385, 389; al-Ikhtiyar 2/54; Mukhtasar al-Wiqaya 2/90; Tabyin al-Haqa'iq 5/242; al-Lubab 1/503, 506; al-Bayan 7/131-133; al-Najm al-Wahhaj 5/247-248; Mughni al-Muhtaj 3/337-338; al-Mughni 5/187; al-Kafi 2/419; al-Mubdi' 5/208; al-Insaf 6/261-263; Kashshaf al-Qina' 4/172-173; Matalib Uli al-Nuha 4/110; Manar al-Sabil 2/270-271).
The Hanafis require of the preemptor the witnessing at the moment he learns of the pre-emption (talab al-muwathaba): if he neglects it while able, his pre-emption becomes void. He must then rise from his assembly after the request for witnessing and testify before the seller if the property is still in his hand and not yet delivered to the buyer, or before the buyer, or on the spot, the right attaching there. The formula: "So-and-so bought this house and I am its preemptor; I have claimed the pre-emption and claim it now; bear witness to that." If he does that, his pre-emption settles and no longer lapses through delay according to Abu Hanifa and Abu Yusuf in one transmission, the apparent of the madhhab and the fatwa: an established and settled right only lapses by renunciation, declared by the tongue as with other rights. Muhammad says: if he neglects it for a month after the witnessing without excuse, his pre-emption becomes void: without any lapse through the delay of litigation, the buyer could do nothing for fear of the preemptor's withdrawal; a month has therefore been fixed, a term standing for the immediate. It has been said: the fatwa today follows Muhammad's view, the conditions of people having changed towards the intent to harm (al-Jawhara al-Nira 3/385, 389; al-Ikhtiyar 2/54; Mukhtasar al-Wiqaya 2/90; al-Lubab 1/503, 506).
The Malikis hold that pre-emption is not immediate: its period is wide. Malik's view varied: the well-known view of the madhhab fixes it at one year; if a year passes without a claim after the knowledge, the pre-emption lapses. According to one view of his, the period is unlimited: it never interrupts, unless the buyer builds or brings about a major change in the preemptor's presence, knowingly and silently. It has also been said more than a year, and it is reported from him that for five years the pre-emption does not interrupt. The proof that pre-emption is not immediate is his saying: "Pre-emption in what is not partitioned", without any time condition; the claim is a right of the preemptor, and the rule is that whoever has a right may take it or leave it whenever he wishes, until proof of an extinctive period; and it is a right of obtaining property without negligence or deception, so the claim is not immediate there, like the claiming of debts; requiring an immediate claim would harm the preemptor: he may learn of the sale of the share at a moment when he does not have the price, and need time to gather it; the buyer may have built, the value of the construction then being due, and the preemptor cannot pay the value of the share: harm is not permitted (al-Ishraf ala Nukt Masail al-Khilaf 3/135-136, no. 991; Bidayat al-Mujtahid 2/198).
Among the Shafi'is, qadi al-Imrani expounds in al-Bayan three other views. If one buys a share bearing pre-emption: if the preemptor is unaware of the sale (absent or kept in ignorance), his pre-emption does not lapse, even after a long time: it is an option to remove harm, which does not lapse through ignorance, like the purchase of a defective good. Likewise if he knows of the sale but does not know who the buyer is, or the kind or amount of the price: his pre-emption does not lapse, for he does not know the amount of the price to pay and has an interest in knowing the buyer, being able to refuse partnership with one man and accept it with another. If he knows of the sale, the amount of the price and the buyer: if he claims immediately without excuse, that is valid; if he delays, there are four views: the first, the old one: perpetual choice, without lapse except by waiver or by a sign of waiver, telling the buyer: share with me, or sell to me; the buyer cannot bring him before the judge to compel him to take or leave; the support being the saying: "if he sells without notifying him, his partner is more entitled", without distinction, and the fact of a right of acquisition that may be deferred, like retaliation. The second, also old: deferred, without lapse except by explicit waiver or its equivalent, but the buyer may bring him before the judge: the immediate would harm the preemptor wishing to wait and see, the perpetual would harm the buyer prevented from planting and building for fear of the seizure: hence the choice until the buyer brings the matter before the judge. The third, in Harmala's siyar: the preemptor has the choice for three days, the impossibility of perpetual choice and of the immediate requiring an intermediate period, fixed at three days, a near duration, the end of fewness and the beginning of abundance, the harm being thus removed from both. The fourth, in the new: the immediate: delay without excuse makes the pre-emption lapse: Abu Hanifa's view, and it is the correct one, according to the saying: "Pre-emption belongs to whoever hastens to it", and the report: "Pre-emption is like the cord of the tether-ring: if it is fastened it holds, if it is left the blame falls on whoever left it"; it is an option to repel harm from the property, therefore immediate like the return for a defect, with precaution against the option of retaliation. The immediate means the claim according to custom, not as fast as possible: if he could urge on his mount or quicken his pace and did not, his pre-emption does not lapse; if he learns of it at night, he need not claim before morning, the nighttime custom being lodging and rest; if he learns of it hungry or thirsty, he waits until he has eaten and drunk; in the bath, he waits until he comes out; if he was preparing for prayer, he may perform ablution, put on his garment, give the call and accomplish the rites of prayer, his pre-emption not lapsing, custom placing these needs before others; likewise for closing the door, guarding his property, harnessing his mount if he customarily rides, or covering a long distance; upon meeting the buyer and saying: "Peace be upon you, I have taken the share or the pre-emption for the price you paid", that is valid, the pre-emption not lapsing through the greeting, the salam before speech being a sunna (al-Bayan 7/131-134; al-Najm al-Wahhaj 5/247-250; Mughni al-Muhtaj 3/337-339).
If the preemptor is absent and unaware of the pre-emption, the jurists of the four madhhabs agree that he is entitled to it upon learning of the sale and that his pre-emption does not lapse as long as he is absent and unaware. Imam Ibn Abd al-Barr said: as for the absent one's pre-emption, the people of knowledge are unanimous: if he did not know of the sale of the share in which he is a partner of the houses and lands, then returns and learns of it, he has the pre-emption despite the length of his absence (al-Istidhkar 7/73). Imam Ibn Rushd said: the one entitled to pre-emption is of two kinds: present or absent; as for the absent one, the scholars are unanimous that he keeps his pre-emption as long as he does not know of his partner's sale (Bidayat al-Mujtahid 2/197-198). Ibn Qudama said: whoever is absent and learns of the sale at the time of his return has the pre-emption, even after a long absence. In sum: the absent one has pre-emption according to most of the people of knowledge, reported from Shurayh, al-Hasan and Ata', and the view of Malik, al-Layth, al-Thawri, al-Awza'i, al-Shafi'i, al-Anbari and the people of opinion. It is reported from al-Nakha'i that the absent one has no pre-emption: the view of al-Harith al-Ukayli and al-Batti, except for a near absence; for establishing it would harm the buyer, prevented from settling his ownership and disposing of it as he chooses for fear of the taking. Answer: the generality of "pre-emption in what is not partitioned" and of the other hadiths; pre-emption is a monetary right whose cause exists with regard to the absent one, therefore established like inheritance; he is a partner who did not know of the sale, pre-emption is established at his knowledge, like the present one kept in ignorance or the absent one of a near return; the buyer's harm being repelled by the obligation of the value. If he only learns of the sale at his return, he claims despite the length of the absence: this option is established to repel harm from the property, the time before the knowledge not making it lapse, like the return for a defect (al-Mughni 5/190-191).
The four madhhabs disagree if the absent one learns of the sale without witnessing or claiming: does his pre-emption lapse or does it remain until his return? The Malikis say it does not lapse, according to the hadith of Jabir: "The neighbor is more entitled to what is adjacent to him, or to his pre-emption: he is awaited if he is absent"; and the absent one is mostly prevented from taking by pre-emption: his excuse is therefore required (al-Istidhkar 7/73; Bidayat al-Mujtahid 2/198). The majority (Hanafis, Shafi'is in the more apparent view, Hanbalis in the madhhab) says: if the preemptor is away from the buyer's town and learns of the pre-emption, let him witness the claim or delegate if he can; if he neglects the witnessing or the delegation at the moment of knowledge while capable, his right lapses. According to the view opposite to the more apparent among the Shafi'is, which is a Hanbali view, his right does not lapse (al-Najm al-Wahhaj 5/248-249; Mughni al-Muhtaj 3/338; al-Mughni 5/190-191; Sharh al-Zarkashi 2/162; al-Jawhara al-Nira 3/387-388). The Hanafis: if he witnesses or delegates at the moment of knowledge, he remains upon his pre-emption; if he learns and neither witnesses nor delegates, while capable, staying silent for even an hour, his pre-emption lapses, the absent one being able to claim like the present one; if he learns by letter, the pre-emption being at the beginning or the middle, and reads the letter to the end before claiming, his pre-emption lapses: such is the view of most of the shaykhs, according to the criterion of immediacy. According to Muhammad, he has the span of the sitting of knowledge (al-Jawhara al-Nira 3/387-388).
Imam Ibn Qudama says: if he learns of it while travelling and does not witness his claim, there is no pre-emption for him. The apparent meaning is that as soon as the absent one knows of the sale and can witness and claim without doing so, his pre-emption lapses, whether he can delegate or not, travel after the knowledge or stay: this is the apparent of Ahmad's words in Abu Talib's transmission, and a view of al-Shafi'i. The other view: he has no need of witnessing, his excuse being established, and his word is accepted. For us: he may neglect the claim for an excuse or otherwise, travel for the pre-emption or for something else, and be able to clarify by witnessing: if he does not do so, his pre-emption lapses, like the one who neglects the claim in person. The qadi says: if he travels after the knowledge to the buyer's town without witnessing, his pre-emption may not lapse, the apparent of his journey being the claim: the view of the people of opinion, al-Anbari and al-Shafi'i. The people of opinion say: after the knowledge he has the period of the journey; if that period passes without sending or claiming, his pre-emption lapses. Al-Anbari says: he has the distance of the road there and back, his excuse for neglecting the claim being apparent, dispencing with witnessing. There is no disagreement: if he cannot witness while travelling, his pre-emption does not lapse, he being excused; if he can witness and delays, it is like delaying the claim: with excuse, no lapse; without excuse, lapse, the witnessing standing in place of the claim and deputizing for it. Whoever can only witness through people whose testimony is not accepted (a child, a woman, a sinner) and neglects witnessing: his pre-emption does not lapse, their word having no value; whoever finds only witnesses of unknown standing and does not have them witness: his pre-emption may lapse, their testimony being provable by commendation (tazkiya); or it may not lapse, the proof requiring costs he cannot bear; if he has them witness, his pre-emption does not lapse, whether their testimony is accepted or not, he being unable to do more, like the one who can only witness through one witness and does so (al-Mughni 5/190-191; Sharh al-Zarkashi 2/162).
The jurists disagreed: may the preemptor waive pre-emption by concluding a settlement against a compensation paid to him? The Malikis allow it: it is a compensation for the removal of an ownership in a transfer, like the compensation taken for transferring authority over one's wife or for the khul' (al-Ishraf ala Nukt Masail al-Khilaf 3/151-152, no. 1004). The majority (Hanafis, Shafi'is and Hanbalis) does not validate paying a compensation against the right of pre-emption: if the buyer says to the preemptor: "Settle with me what you are owed of pre-emption for a dinar", and the preemptor answers: "I have settled with you", the settlement is not valid and the preemptor does not acquire the compensation; for pre-emption is an option of ownership in which paying a compensation is not valid, like the option of the three days; pre-emption is a right of acquisition and not a confirmed right (haqq mutaqarrar): the settlement is therefore not valid in it, like the man who says to his wife: "Choose to renounce the rescission for a thousand", or to the woman given the choice: "Choose me for a thousand": if she chooses, the rescission lapses with nothing for either, and the compensation must be returned, having been exchanged for no confirmed right, which is therefore not a lawful exchange. It is also an option that is not realized in wealth: no compensation can be taken for it, like the conditional option; and the khul' is an exchange against what was acquired for compensation, which is not the case here; the jurists moreover disagree on whether pre-emption lapses through such a settlement.