The jurists of the major centers hold that pre-emption applies only to real estate. A view is transmitted from others that it extends to a well and to everything except goods sold by measure or by weight. Abū Ḥanīfah did not allow pre-emption in the case of a well or a breeding-male animal, but he did allow it in an open courtyard or a right-of-way. Al-Shāfiʿī agreed with Mālik regarding the open lot, the pathway, and the well, yet both of them differed with him concerning fruit.

The principal evidence cited by the majority for limiting pre-emption to real property is the authenticated ḥadīth in which the Prophet—peace and blessings be upon him—said:

“Pre-emption attaches to property that has not yet been divided; once the boundaries have been fixed and the roads assigned, there is no pre-emption.”

It is as though he were saying: pre-emption pertains to whatever is capable of subdivision so long as it has not in fact been subdivided. This is an argument by implication (dalīl al-khiṭāb), and although jurists differ over the probative force of such reasoning, they all invoke it in this context.

Those who allow pre-emption in every kind of property rely on the report recorded by al-Tirmidhī from Ibn ʿAbbās that the Messenger of Allah—peace and blessings be upon him—said:

“The partner has the right of pre-emption in everything,”

and on the fact that the harm arising from joint ownership or adjacency exists in every sort of property, albeit more obvious in real estate. Taking this into account, Mālik treated whatever is inseparably connected to real property as having the same ruling as the property itself.

Abū Ḥanīfah supported his exclusion of wells by the report, “There is no pre-emption in a well,” while Mālik construed that narration as referring to wells dug in the open wilderness—land classed as unowned—not to wells located in privately held land.

The Third Pillar

As for the person against whom pre-emption is exercised, the scholars agree that it applies to anyone who acquires ownership by purchasing from an undivided partner, or from a neighbor according to those who grant the neighbor a right of pre-emption. They differ, however, regarding one who acquires ownership without a purchase. The well-known position of Mālik is that pre-emption is due only when the transfer of ownership is for consideration—such as a sale, a settlement, a dowry, blood-money, and the like—and al-Shāfiʿī holds the same view. A second report from him states that it is obligatory in every transfer of ownership, whether for consideration or gratuitous, such as a non-reciprocal gift or a charitable donation, except in inheritance, for in that case all agree there is no pre-emption.

The Ḥanafīs restrict pre-emption to sales alone. Their chief proof is the plain wording of the ḥadīths, whose purport confines the ruling to sales; indeed the texts expressly state: “Let him not sell until he has sought his partner’s permission.”

The Mālikīs, on the other hand, deem every transfer for consideration to be in the same category as a sale, while the rationale behind the second view rests solely on the presence of harm.

With respect to a compensatory gift (hiba li-thawāb), neither Abū Ḥanīfah nor al-Shāfiʿī recognize any pre-emption in it; Abū Ḥanīfah’s reason is that pre-emption