Section Three
Pre-emption
Ash-Shof’ah
1103. Pre-emption (shof’ah) is one of the rights stemming from the joint ownership of assets. In the Shari’ah it is: a right that gives priority to one of the partners to the ownership of the other’s share that has been made common, if he (the latter) transfers it from his ownership to another party other than his partner for payment or exchange, and this is at the same price or value of the thing exchange paid by this other party.
1104. A pre-emption right is only conferred upon partnership in the asset; it is also not conferred unless the partners are two in number. So there is no pre-emption right for a neighbour – in his status as neighbour– in a house or property which his neighbour sells and which is not common to both of them; nor is there any pre-emption right in an asset that is jointly owned by more than two parties even if all the parties sell except one.
1105. Excluded from the condition of partners numbering more than one are three situations in which a shof’ah gets conferred:
1- If the partners become more than two due to reasons beyond their control, such as if the shafi’ (the person who has the right of shof’ah) dies before taking the pre-emption right, then the right transfers to his heirs even if they are more than two in number, but upon their agreement on pursuing the pre-emption right; otherwise it will not be conferred on some of them only.
2- If the partners become more than two out of free will, such as if one of the two partners sells some of his share; in this case the partners becoming three or more will not prevent the other partner from pursuing shof’ah.
3- If the owners of houses or properties – the number of whom is more than two and each one of whom has exclusive ownership of his house or property – are partners of a private road or path exclusive to them and one of them sells his house with his share of the common road/path, his partners in this road/path will have the right of pre-emption in the sold share of the road/path despite the fact that the number of partners are more than two – in fact, they have a pre-emption right in what is not common as well, which is the house itself.
1106. Pre-emption right applies only to assets in which the ownership of the partner is absolute, so if a partner sells his common share with waqf, the beneficiaries will have no pre-emption right, whilst this right is conferred on the partner if the beneficiaries sell the share made waqf to them, in the cases where they are allowed to sell it.
1107. Pre-emption is conferred in transferable assets, such as tools, clothes and animals, and is also conferred in nor-transferable assets, whether they are divisible or indivisible, such as narrow rivers, roads, wells and the like; it is better, however, with transferable assets and with indivisible, non-transferable assets, it is better to reach an agreement that is acceptable to both the shafi’ (the person who has the pre-emption right) and the buyer.
1108. Requirements in the shafi’ are:
1- Islam if the buyer is Muslim.
2- The Islamic legal age, sanity and reasonable conduct.
3- Not having been indicted for bankruptcy, for the bankrupt have no right to pre-emption if this requires paying the price from the indicted assets, unless the people to whom he owes a debt give permission, or the buyer accepts that the price remains owed by the indicted person, or that he will pay it from any assets that he has obtained after the indictment.
4- The shafi’ must be capable of paying the price to the buyer, so it is not conferred on one who cannot – even if he presents a mortgage or someone becomes his guarantor – unless the buyer accepts. However, he who claims that he does not have the payment with him can be given three days, in addition to the time needed to bring it from another country/town if the payment is not in the country/town of the transaction; the duration starts from the time of the claim of pre-emption.
1109. The pre-emption is cancelled if the buyer would be subjected to appreciable harm if he had to wait three days, especially if the wait was to be for more than three days or for any period that is more than normal.
1110. It is not necessary that the shafi’ is present in the country/town in which the sale takes place, nor does he have to have knowledge of it if he is present; in fact, pre-emption is conferred on the ignorant when he comes to know about the sale and to the person absent from the country/town when he comes to know about the sale, regardless of the time period.
1111. If the conditions needed for conferring the shof’ah are met, as well as the conditions in the shafi’ and the shafi’ comes to know of the sale, he must hasten in the way that is common to claim the shof’ah, using whatever words or acts that mean this, coupled with the immediate payment of the price, or after the elapse of however much time is acceptable to delay payment for, unless the buyer accepts otherwise. So, if he comes to know of the sale, but does not hasten to claim the shof’ah and he has no excuse for failing to hasten to do this, he loses his right to it.
1112. The right of the shafi’ in the shof’ah is limited to taking the share that is sold to the buyer at the same price paid for it, without excess or reduction.
1113. Any expenses which the buyer has to meet on top of the price, such as the commission of an estate agent, the porter etc, are not on the responsibility of the shafi’. On the other hand, the shafi’ will not benefit from any reduction in the price which the seller made to the buyer after the sale out of his good will, but the shafi’ is bound to pay the price on which the buyer and the seller agreed in the contract.
1114. It is not the right of the shafi’ to oblige the buyer to accept his pre-emption in only some of the bought asset: he is either to pre-empt in all or to leave all.
1115. The knowledge of the amount of the price is not necessary for claiming the pre-emption right, it is acceptable even with ignorance of its amount.
1116. The transfer of the sold asset to the ownership of the buyer before the shafi’s claim of pre-emption does not cancel his claim, so if he claims it, any transaction that involves an exchange and that transfers the sold asset on will become invalid unless the buyer allows it, in which case he has the right of pre-emption directly from the buyer, or from whoever comes after him if he allows the buyer’s transaction.
1117. Claiming pre-emption (shof’ah) is not possible in the following cases:
1- Failing to hasten to claim it without any excuse, as explained above.
2- Failing to bring the payment after becoming capable of paying it, as explained above.
3- The person who has the right of pre-emption selling his share, thus cancelling his right of pre-emption because he, through the sale, is no longer a partner.
4- The damage of the whole of the sold asset when with the buyer before the shafi’ claims shof’ah; so (but) if some of it (only) is damaged, his right is not cancelled.
5- The buyer and seller relieving one another (of the sale) before the pre-emption is claimed.
6- The shafi’ cancelling his right of shof’ah after the sale or before it. However, the shafi’ is allowed to take money or an asset in exchange for cancelling his right by words or actions.