- Shufʿah is an obligatory right that belongs to the claimant, and it is impermissible to employ stratagems to nullify a rightful claim. Whoever abolishes it through lies and false pretenses has wronged himself by committing a sin, wronged the claimant by depriving him of the right Allah has granted him, and transgressed the limits Allah has set for His servants—he has toppled that right by the flimsiest of tricks.
Imam Aḥmad said, “It is forbidden to devise ruses that abolish shufʿah or that invalidate a Muslim’s right.”
Shaykh al-Islām (Ibn Taymiyyah) remarked, “Scheming to remove shufʿah after it has fallen due is impermissible by consensus of the scholars.”
The difference of opinion concerns only the ploys attempted before the right has matured, that is, when the owner intends to sell the share subject to shufʿah. The stronger view is that it is not lawful to contrive a device that strips a Muslim of his right, and any transaction undertaken for the purpose of such forbidden contrivance is void.
- The ḥadith also teaches refined etiquette in partnership: when a partner wishes to sell his portion, it is proper that he first offer it to his fellow partner. Should the latter wish to purchase it, he has a greater claim than anyone else by virtue of partnership, neighborliness, and companionship; in so doing he also spares his brother and partner the trouble of resorting to shufʿah.
Scholarly dispute:
The scholars unanimously agree that shufʿah is established in real estate subject to compulsory partition—spacious property whose parts are indistinguishable, so that its division causes no harm and requires no compensation from either partner. In such property shufʿah is affirmed by consensus.
They differed, however, with regard to a small house, a bathhouse, or a shop—premises of limited area whose partition is not compulsory.
The well-known position in Imam Aḥmad’s school is that shufʿah is not allowed in these cases, relying on the report narrated by Abū ʿUbayd in al-Gharīb that the Prophet ﷺ said, “There is no shufʿah in a courtyard, a pathway, or a manqaba (narrow shaft or channel).”