Shufa (pre-emption: the right of a co-owner or neighbour to take property sold to a stranger)

Shufa, with a damma on the shin and a sukun on the fa, is a verbal noun meaning acquisition, from shaf' (the even, the opposite of the odd). The jurists define it as the compelled transfer of a plot to the buyer at what he paid, or as a compulsory right of acquisition that belongs to the old partner over what came into another's ownership for a consideration. ¹ It differs from a forced sale, which is wider, and from resale at cost (tawliya), which is the sale of what one owns at what one paid. ¹

Pre-emption is established by the sunna and by consensus, and its holder may claim it or leave it. Al-Shabramallisi of the Shafi'is says that if leaving it leads to sin, as when the buyer is known for wickedness, taking it is recommended, and obligatory if it is the only way to stop what he intends. ¹ The jurists cite a report of Jabir ibn 'Abd Allah that the Prophet ﷺ gave judgement of pre-emption in what has not been divided, and another version that it applies to every partnership in a house or garden not yet divided, and that a partner may not sell until his partner is asked, so that he may take or leave. Ibn al-Mundhir says scholars agree that a partner who has not divided the land, house or orchard that is sold has the right. ² The purpose is to lift the harm that partnership usually brings. Partners may divide the property, or the one who wishes to take the whole may take it when the other is not harmed. When one partner sells his share, his partner has the better right over the stranger, so the seller still gets his price and the harm to both ends. The Shafi'is add that the purpose is to avoid the cost of division and the making of conveniences, and some say it is to avoid the harm of bad partnership. ²

All agree that a co-owner with an undivided share in the property has the right so long as the property is not divided. They differ on property that cannot be divided, such as a well, a small bath or a road. Malik in one report, al-Shafi'i in the sounder view, and the Hanbalis in their school view deny the right there, since allowing it would harm the seller, who could not escape by division, and the buyer may refuse, so the sale may fall through and the right with it. The Hanafis, Malik in another report, al-Shafi'i in the sounder view and the Hanbalis in one report give it in such property too, whether or not divided, because the harm is greater in undividable property. ^{3 6}

The partnership that grants the right is partnership in ownership, so it applies to the thing itself. Most jurists deny it to partners in usufruct, though one view of Malik allows it. Some Malikis allow it for a hired thing only if it can be divided and the claimant takes it to live in. ⁶ Jurists differ on whether a neighbour or a partner in some right of the sold thing, such as water or a path, has the right. The Malikis, Shafi'is and Hanbalis deny it to the neighbour and to the partner in rights. Their evidence is the report of Jabir: when boundaries are set and roads are fixed, there is no pre-emption; they add that pre-emption would harm the buyer, who needs a house for himself and his household. The same view is attributed to the people of Medina, to 'Umar and 'Uthman, and to Ibn al-Musayyab, al-Zuhri and al-Awza'i, among others. ^{6 4} The Hanafis, Ibn Shubruma, al-Thawri and Ibn Abi Layla give it to the adjoining neighbour and to a partner in a right of the sold thing. The order they give is: partnership in the thing, then partnership in its rights such as water and path, then neighbourhood. Their evidence is a report of 'Amr ibn al-Sharid about Sa'd ibn Abi Waqqas and Abu Rafi', the freed man of the Prophet, and the saying that the neighbour has more right to his neighbour's land. ^{4 5}

The Hanafis treat neighbourhood as a ground, but only where the two properties touch at some point of some boundary, however short. A house that touches the front and one that touches the far end of the courtyard stand alike. A neighbour across the road has no right, because the harm of bad neighbourhood needs one owner's property to join the other's. Shurayh held that pre-emption follows the doors, so the nearest door has the better right, and the Hanafis cite a report of 'A'isha about a gift to the nearer of two neighbours. ^{5 7} A neighbour across the way has no right in Hanafi doctrine; but where all the houses lie on a cul-de-sac, the neighbour across has one. Only a neighbour who owns the property has the right, so a tenant or borrower does not, since residence by hire is not lasting. ⁷ Owners of storeys in a building have the right by neighbourhood; if the upper storey falls before the lower owner claims, Abu Yusuf holds the right lapses, and Muhammad holds it stands, since it rests on the site and not on the building. ⁷

The parts of pre-emption are three: the pre-emptor, who takes; the buyer from whom it is taken, who holds the property; and the property taken. ⁸ The pre-emptor must own the property by which he claims at the time of the purchase, since the claim rests on joining ownership, and he must still own it until he takes the property by consent or by judgement. He has no right in a house he lives in by hire or loan, or one he sold before this purchase, or a house made a mosque or an endowment. ^{8 9} An endowment has no right of pre-emption, either by partnership or by neighbourhood, neither its administrator nor the beneficiary. ⁹

All agree that taking by pre-emption may not split the deal. If the property is one plot and the buyer one person, the pre-emptor may not take part and leave part. If there are several buyers, he may take one share, more, or all. ⁹

Pre-emption may be taken from any buyer, whether a relative of the seller or a stranger, since the texts are general. ⁹ The transaction that gives pre-emption is an exchange, sale or its like. There is none in a gift, charity, inheritance or bequest, since one cannot take by the same means as the other party. One report of Malik gives it in every transfer for consideration or without it, except inheritance. Jurists differ on dower, the arsh of a wound, settlement by compromise and khul' payments: the Hanafis and a Hanbali view deny them, and the Malikis, Shafi'is and another Hanbali view admit them by analogy with sale. ^{9 10}

• A gift on condition of a return: most jurists hold that pre-emption arises when both have taken possession; if only one has taken possession, the Hanafis deny it, while Zufar holds it arises at the contract, which is the more likely Shafi'i view. ¹⁰
• An option of sale: if the option belongs to the seller, or to both, there is no pre-emption until the sale is binding. If it belongs to the buyer, the Hanafis give pre-emption, the Malikis do not, the Shafi'is have two views of which the sounder gives it, and the Hanbalis do not before the option ends. If the seller grants the option to the pre-emptor, the Hanafis give him no right; if he approves, the sale stands as if made afresh. ^{10 11}

• A sale at public auction: the jurists do not bar pre-emption in it, since they do not exclude it from the conditions. ¹¹
• A property bought to be made a mosque: the Hanafis and Malikis, and Abu Bakr among the Hanbalis, hold that the pre-emptor may pull the mosque down and take the house, in the apparent view of the Hanafi school; a contrary report from Abu Hanifa exists. ^{11 12}

The jurists agree that pre-emption applies to real property and what is like it that is fixed; they differ on movables. ¹¹

This entry is partial. It covers the headword from p.10108 to p.10118 only; the rest of the headword (the movables, the procedure, the time limits, the claim and its effect, and the end of the right) is not yet summarised and will be added in the next batch. Completeness is 0 until the next heading is reached.