Daily Archives: March 28, 2014
Volume 3, Book 34, Number 415 :
Narrated by Jabir (radiallaahu `anhu)
Allah’s Apostle (sallallaahu `alayhi wasallam) gave pre-emption (to the partner) in every joint property, but if the boundaries of the property were demarcated or the ways and streets were fixed, then there was no pre-emption.
Volume 3, Book 34, Number 416 :
Narrated by Jabir bin Abdullah (radiallaahu `anhu)
Allah’s Apostle (sallallaahu `alayhi wasallam) decided the validity of pre-emption in every joint undivided property, but if the boundaries were well marked or the ways and streets were fixed, then there was no pre-emption.
Volume 3, Book 34, Number 417 :
Narrated by Mussaddad from ‘Abdul Wahid
The same as above but said, “… in every joint undivided thing…” Narrated Hisham from Ma’mar the same as above but said, ” … in every property… “
The word Shuf’ah (preemption) is derived from Shaf’ meaning “to join” [because the property is joined to the shafi’ [pre-emptor]. In the terminology of the Fuqahaa it is the right to take possession of a house and land to prevent the harm of a neighbour e.g. if a man sells his house or land and tells his neighbour or partner about this sale the partner/neighbour has a right to object to the sale. He can take that was sold at the price at which it was sold. The one who has this right, is called a shafi’ [pre- emptor].
‘Shuf’ah’ (pre-emption) is the right someone has on his property or land, etc. According to Shari’ah three types of people have a right of pre-emption: i) a partner in the property who has a share in it, but the other partner sells the property without his consent. So he has the right to appeal against this in the Shari ‘ah Court on the basis of Shuf’ah. ii) Someone who is affected by the selling of a property (though not directly involved in that property) i.e. A neighbour who shares a path or a well, etc. That neighbour has a right of Shuf’ah and can issue a writ. There are no different opinions about i) and ii) above. Finally, iii) The neighbour – if he has separate boundaries for his land/home and no joint rights with the other, the neighbour should still be given priority when you come to selling your property. If the owner doesn’t inform him, he is not allowed to issue a writ for right of pre-emption.
The period or limit of pre-emption is for it to be made immediately after knowing of the dealing. If it is not possible to contact an Islamic Court then at least announce it to responsible members of the community. Otherwise, if delayed considerably, then it is not acceptable.
It is quite clear that the right of shuf’ah has been devised in Islam to adjust and to stabilize partnerships and to eliminate losses and other mischief resulting from partnership of properties, for in many cases, the possession of the property by the new partner inflicts losses on the partner having the right of shuf’ah or serves as the source of a series of conflicts and disagreements due to differences of opinion or it may be that freedom of ownership may have benefits for the one who has the right of shuf’ah without causing any loss for the partner who wants to sell his share. The right of shuf’ah holds good for lands, houses, gardens, and other immovable properties, but it does not apply to movable properties.