As for the first issue—the manner in which the pre-empted property is to be divided—Mālik, al-Shāfiʿī, and the great majority of the Medinan scholars hold that the property is apportioned among the pre-emptors in proportion to their original shares. Thus, whoever owned one-third of the estate takes one-third of the purchase price, and whoever owned one-quarter takes a quarter, and so forth.
The jurists of Kūfah, by contrast, maintain that the division is per capita: all pre-emptors take equal portions, whether a partner’s stake be large or small.
The Medinans justify their view by noting that pre-emption is a right whose obligation arises from prior ownership; it must therefore be distributed in the same ratio as that ownership—just as rent is divided in jointly leased premises and profit in a partnership of capital. Moreover, since pre-emption exists to remove harm, and the harm affects each partner in proportion to his share, their entitlement to avert that harm must likewise follow those proportions.
The Ḥanafīs, on the other hand, argue that the obligation of pre-emption attaches to ownership itself; because all co-owners are equal in respect of ownership, those with unequal shares nevertheless take equally. They liken this to a case in which partners jointly own a slave: if one of them manumits his share, the remaining partners must purchase the balance in equal portions—that is, each bears an equal part of the share that was not freed.
Turning to the second issue, the jurists differ over whether agnatic co-heirs (ʿaṣabah) may join in pre-emption with co-heirs who hold a single prescribed share. Mālik states that the holders of the single share have priority: when one of them sells his portion to a partner whose title is by agnation, the agnate may not exercise pre-emption against the fixed-share heirs, whereas the fixed-share heirs may pre-empt against the agnates. For example, if a deceased leaves real estate to two daughters and two paternal cousins, and one daughter sells her share, it is only the other daughter who may pre-empt, not the cousins; but if one of the cousins sells his share, the daughters together with the remaining cousin may pre-empt. Ibn al-Qāsim adopted this view.
The Kūfan jurists hold that neither side may pre-empt against the other: fixed-share heirs may not pre-empt against agnates, nor agnates against fixed-share heirs. Only those sharing the same prescribed share may pre-empt among themselves; this is also reported from Ashhab.
Al-Shāfiʿī, in one of his two opinions—an opinion preferred by al-Muzanī and by al-Mughīrah among Mālik’s students—maintains that both groups may pre-empt against each other: fixed-share heirs against agnates and agnates against fixed-share heirs.
The basis of the Shāfiʿī school is the general wording of the Prophet’s ruling, peace and blessings be upon him, that pre-emption applies “among partners,” without distinguishing between heirs with fixed shares and agnates.
Those who exclude fixed-share heirs from agnates argue that the co-ownership arises from different causes; hence they liken co-ownership that differs in its causes to co-ownership that differs in its subject-matter, as when separate pieces of property are combined and then divided.
As for the view that allows fixed-share heirs to pre-empt against agnates but not the reverse, it rests on istihsān (equitable preference) rather than strict analogy; the rationale is that fixed-share heirs are deemed more firmly established than agnates.
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