Book of Pre-emption (Kitāb al-Shufʿa)

The right of shufʿa does not apply to movable property; it is confined to land and, by extension, to whatever buildings and trees stand upon it, and—on the sounder opinion—to fruit that has not yet been pollinated. There is no shufʿa in a room erected on a roof that is not jointly owned; nor—according to the more correct view—even when the roof itself is jointly owned. Anything whose intended benefit would be destroyed if divided, such as a bathhouse or a mill, likewise falls outside the scope of shufʿa, on the stronger position. Shufʿa belongs only to a co-owner.

If someone sells a house while another person shares only the passageway that leads to it, the partner has no shufʿa in the house itself. The correct view, however, is that he does have shufʿa in the passageway—provided the purchaser has another path to the house or could open a door onto a public street; otherwise, no shufʿa applies.

Shufʿa is established only in property acquired through a compensatory transaction that confers binding ownership later than the shufʿi’s own title—such as a sale, a woman’s dower, the consideration for khulʿ divorce, a blood-money settlement, deferred instalments, rent, or the capital advanced in a salam contract.

If the contract of sale contains a khiyār (option) for both parties, or for the seller alone, the property may not be taken by shufʿa until the option period expires. When the option is granted to the buyer alone, the stronger view is that shufʿa may be exercised—provided we hold that ownership passes to the buyer when the contract is concluded; if we do not, then shufʿa does not apply.

Should the buyer discover a defect in the purchased share and wish to return it on that account, while the pre-emptor is willing to accept it despite the defect, the sounder opinion is to allow the pre-emptor to take it.

If two people buy a house, or part of it, neither has shufʿa against the other. And if the purchaser already owns a share in the land, the sounder view is that the fellow partner may take only the purchaser’s newly acquired share, not the entire property.

Acquiring ownership by shufʿa does not require a judicial ruling, the presentation of the price, or the presence of the purchaser. What is indispensable is an explicit statement by the pre-emptor—such as, “I have taken possession,” or, “I have taken this by shufʿa.” In addition, one of two things must occur: either the compensation is handed over to the purchaser—whereupon, once he receives it or a judge compels him to receive it, the pre-emptor becomes the owner of the share—or the purchaser consents outright.