On this point, Abū Ḥanīfah and his colleagues maintain that shufʿah applies to every kind of property, whether real estate or movable goods. They base their view on the opening words of the ḥadith before us—“He adjudicated the right of pre-emption in everything that has not yet been divided”—as well as on the report narrated by al-Ṭaḥāwī from Jābir: “The Messenger of Allah ﷺ ruled that the right of pre-emption applies to everything.” In their estimation, shufʿah was legislated to remove the harm that results from joint ownership and the partition that follows, both of which entail cost and effort.

Some scholars—such as al-Qāḍī ʿIyāḍ and Ibn Daqīq al-ʿĪd—regard this opinion as an outlier.

Mālik, the scholars of Medina, al-Shāfiʿī, Aḥmad, and Isḥāq, on the other hand, hold that neither a neighbor nor a partner whose portion has already been demarcated possesses the right of pre-emption. In their view the right exists only in undivided real estate; once its boundaries are fixed and its access routes laid out, shufʿah no longer applies. This position is also attributed to ʿUmar, ʿUthmān, and ʿAlī (may Allah be pleased with them).

They adduce as proof the very ḥadith of this chapter: “When the boundaries are fixed and the paths are laid out, there is no shufʿah.” Imām Aḥmad declared it the soundest narration on the subject. Al-Bukhārī relates from Jābir: “The Messenger of Allah ﷺ granted shufʿah only in property that has not been divided; once the boundaries are fixed and the paths laid out, there is no pre-emption.” Abū Dāwūd likewise reports from Abū Hurayrah that the Prophet ﷺ said, “When land is divided and its limits set, there is no shufʿah in it,” and similar aḥādīth exist.

The rationale is that the Lawgiver instituted shufʿah solely to remove the harm attendant upon shared real estate—properties whose division is lengthy and difficult, that demand labor and alterations, and that carry utilities and attendant rights. All of this invites dispute and contention, so shufʿah was established to eliminate these harms.

Jointly owned property other than real estate, however, involves only a minimal degree of harm, which can be remedied through partition, sale, or lease. A neighbor experiences none of these difficulties so long as he is not a co-owner; were we to grant shufʿah to every neighbor, the matter would become common to the point that no one would be without a claim.

Nonetheless, some scholars—including the Ḥanafīs—affirm the right of pre-emption for a neighbor unconditionally, whether or not he shares with his neighbor a common alley, courtyard, well, and the like.