movable property, because the harm can be removed by selling it and dividing the proceeds. People do not compete to retain such property or desire to keep it as they do immovable property.

Section

The scholars agreed in general terms that pre-emption applies to immovable property. Mālik’s position, may Allah have mercy on him, did not vary concerning the applicability of pre-emption to an undivided share sold for cash or a loan. But if a man sells his share to his co-owner or to an outsider in exchange for immovable property, or for a share in immovable property in which he may or may not already hold a share, Ibn al-Qāsim’s position, which he also reports from Mālik, is that pre-emption applies in all these cases.

At the beginning of Ibn al-Qāsim’s recorded hearings, however, there is a passage whose apparent meaning is that Mālik’s position varied concerning all these cases. He used to say that if it was known that the person intended an exchange and a place to live, rather than a sale, pre-emption did not apply. Some of the Medinan scholars also mentioned this, and it is the position of Rabīʿa. On this understanding, the exchange concerning which the applicability of pre-emption is disputed encompasses all these cases.

Al-ʿUtbī and Ibn al-Mājishūn both related the view that the exchange to which Mālik said pre-emption did not apply is specifically where a man sells his share to his co-owner in exchange for a share in immovable property in which he already holds a share. Each party thus intends only to enlarge his own holding through the share he receives from his co-owner in return for what he gives him. On this understanding, the exchange in question is confined to this one case among all those mentioned.

Abū Zayd reported from Mutarrif concerning a house jointly owned by two men, one of whom sells his share to his co-owner in exchange for a share in another property that the latter owns jointly with a third party: that third party has no right of pre-emption over the share exchanged, because the transaction was not intended as a sale, but only to enlarge the co-owner’s holding.

Likewise, according to this view of Mutarrif, if a house belongs jointly to three people and one of them sells his share to one of his two co-owners in exchange for immovable property, the third co-owner, who was not a party to the sale, has no right of pre-emption. This is because the intention was not a sale, but only to enlarge the holding. According to this view of Mutarrif, this constitutes the exchange concerning which the applicability of pre-emption is disputed. Its underlying principle is that whenever one of the parties to a transaction involving immovable property receives from the other a share in property in which he already holds a share, this is the exchange to which pre-emption does not apply. And according to the interpretation of