- The Book of Pre-emption
Pre-emption (shufʿa) is due, first of all, to the co-owner in the very property that has been sold; next, to the associate who shares an appurtenant right to the property—such as water access or right of way; and finally, to the adjoining neighbour. Neither the associate in right of way and water nor the neighbour may exercise pre-emption while the co-owner is present. If the co-owner waives his right, it passes to the associate in right of way; if he too waives, the neighbour may then take it.
The right of pre-emption arises with the contract of sale, becomes fixed when witnesses are summoned, and is acquired by taking possession once the buyer delivers the property or a judge so rules. When the pre-emptor learns of the sale, he should call witnesses in that same sitting to register his claim, then rise and summon witnesses before the seller—if the property is still in his hand—or before the buyer, or at the property itself. Once he has done so, his right is secure and, according to Abu Hanifah, it is not lost by later delay. Muhammad, however, maintains that if he neglects it for a month after summoning the witnesses, his right lapses.
Pre-emption is obligatory in real estate, even when the property is indivisible; there is no pre-emption in movables or ships. Muslim and dhimmī are equal in this regard.
Whenever real estate is acquired for a monetary consideration, the right of pre-emption attaches. There is no pre-emption in a house that a man gives as dower in marriage, or uses to obtain his wife’s khulʿ, or with which he rents another house, settles a claim for intentional homicide, emancipates a slave, or settles a disputed claim that the other party either denies or remains silent about. If, however, the settlement follows an admission of liability, pre-emption becomes due.
When the pre-emptor comes before the judge, claims to have purchased, and demands pre-emption, the judge questions the defendant. If the defendant acknowledges the ownership by which the claimant seeks pre-emption, so be it; otherwise, the claimant must furnish proof. Should he be unable to do so, the buyer is put under oath by Allah that he … (text continues).