Ibn Majah

Hadith Commentary:
This hadith has already been mentioned in the Book of Sales (Kitab al-Buyu‘) through the narration of Ghada bin Khalid.
Imam Bukhari has raised two objections against some people regarding this issue: firstly, that they consider deception and fraud among Muslims to be permissible; secondly, the preference without a valid reason (tarjih bila murajjih), meaning that in the case of entitlement, the buyer (mushtari) can only return nine thousand nine hundred ninety-nine dirhams and one dinar, whereas in the case of a defect (‘ayb), he can return the full twenty thousand.
Even though he did not actually pay twenty thousand.
The correct position in this matter is that of the Ahl al-Hadith: that in both cases—whether due to a defect or entitlement—the buyer will return to the seller (ba’i‘) only the amount he actually paid, i.e., nine thousand nine hundred ninety-nine dirhams and one dinar, and the pre-emptor (shafi‘) can also acquire this property from the buyer by paying only this amount.

Hadith Commentary:
1.
This is the fourth scenario devised by schemers, in which, through a legal stratagem (hiylah), someone’s right of pre-emption (shuf‘ah) is nullified. Imam al-Bukhari rahimahullah has taken strong notice of this and has described it as deceit and trickery.

Imam al-Bukhari rahimahullah has raised two objections to this stratagem, both of which are irrefutable.

➊ These scholars have made a distinction between the rejection of entitlement (istihqaq) and the rejection due to defect (‘ayb).

Whereas, in both cases, it is necessary to return the amount that the seller received from the buyer.

Similarly, the one exercising the right of pre-emption (shuf‘ah) should also acquire the property for the same amount that the buyer paid in cash, i.e., nine thousand nine hundred ninety-nine dirhams and one dinar, and the original contract price set up as a stratagem, i.e., twenty thousand dirhams, should never be binding upon him.

But these scholars have differentiated between entitlement and defect: if the buyer returns the house due to someone’s entitlement, then the seller is only obliged to return the amount he received in cash; but if the sale is annulled due to a defect, then the seller is obliged to return the entire amount that was agreed upon at the time of the transaction.

Similarly, if the one exercising shuf‘ah wishes to acquire the house, he too can do so by paying the full agreed price, i.e., twenty thousand dirhams.

And this is a clear contradiction.

2.
These scholars have deemed it permissible for the seller and the one exercising shuf‘ah to engage in deception, trickery, and legal stratagems, such that the seller, in order to nullify the right of shuf‘ah, artificially inflates the price of the sold house.

Then, he takes some of the amount in cash and, for the remainder, contracts a sale for just one dinar.

As a result, due to the extreme increase in the apparent value of the property, the one exercising shuf‘ah is forced to abandon his right.

Whereas the Messenger of Allah sallallahu alayhi wa sallam has said that in the transactions of Muslims, there should be neither a defect of illness, nor any element of filth or malice, nor any suspicion of fraud or deception. Therefore, this stratagem devised by schemers to nullify the right of shuf‘ah is entirely contrary to the Prophetic hadith.

Then, when these scholars found themselves cornered from all sides, they opened the backdoor of the permissibility of stratagems, i.e., in their view, the permissibility of a stratagem and its implementation are two separate things: that is, even if a stratagem is not permissible, if someone foolishly carries it out, it will still take effect.

Whereas, that which is impermissible is not valid at all from the outset.

This is the position of Imam al-Bukhari rahimahullah, which he has held from the very beginning.

3.
In any case, this stratagem was employed to render ineffective the right of the one exercising shuf‘ah, which is for the nullification of a right rather than its affirmation; therefore, such an act is impermissible and unlawful (haram).

According to our inclination, the preferred position is that the buyer, whether due to defect or entitlement, is only entitled to receive from the seller the amount he actually paid, which is nine thousand nine hundred ninety-nine dirhams and one dinar, and likewise, the one exercising shuf‘ah can acquire the house from the buyer by paying this same amount.

And Allah knows best.

Hadith Commentary:
And through this legal device, the right of pre-emption (shuf‘ah) will easily be nullified, because an oath will not be imposed upon a minor.

Hadith Commentary:
1.
This is the third scenario presented by Imam Bukhari rahimahullah regarding those who use legal stratagems (hiyal) to render someone’s right of pre-emption (shuf‘ah) ineffective: that the person gifts (hibah) the purchased house to one of his minor sons. In this case, no one will demand an oath from the minor son as proof of the gift, because in this situation, an oath is not obligatory upon him.

2.
In reality, those who employ legal stratagems are very clever and cunning. In this scenario, the minor son is chosen for the gift for two reasons:
➊ Because he is his own child, the house will remain under the control of the buyer himself; no one else will take possession of it.
➋ There is no oath upon him, such as: “Swear that your father gave you this house with the intention of a gift, and that this was not merely a stratagem to avoid pre-emption.” If the elder son had been chosen, then an oath could have been taken from him that this is, in fact, a genuine gift, which has been executed for me according to its conditions. If such an oath were given, then it would be a false oath, and thus the stratagem to nullify the right of pre-emption would not be complete.

3.
If the gift is made to the minor son of a stranger, even then the stratagem would not be complete, because in that case, the house would leave the control of the buyer, and the intended purpose of the stratagem would not be fulfilled. In any case, this stratagem is used to deprive a person of his right, and therefore it is impermissible and unlawful (haram).

Imam Bukhari rahimahullah has presented in this regard the hadith of Abu Rafi‘ radi Allahu anhu, that he did not take any such step to render the right of pre-emption ineffective; rather, keeping the right of pre-emption in view, he immediately sold it to the one entitled to pre-emption, even though he had to bear some loss in doing so.

And Allah is the One whose help is sought.

Hadith Commentary:
Because pre-emption (shuf‘ah) applies to sale (bay‘), not to gift (hibah).
We say that a gift with compensation (hibah bi’l-‘iwad) is also subject to the rulings of sale, so the right of pre-emption (shuf‘ah) for the pre-emptor (shafi‘) should remain established, and to employ such a legal stratagem (hiylah) is absolutely impermissible.
In this, there is an intention to violate the rights of the owner.
We should avoid such gifts in which harm to anyone is apparent, and we should keep away from such impermissible legal stratagems, and act upon this hadith which is completely clear and explicit.

Hadith Commentary:
1.
Imam Bukhari rahimahullah has mentioned the second form of trickery used to invalidate the right of pre-emption (shuf‘ah). Hafiz Ibn Hajar rahimahullah states: In this form, for the invalidation of the right of pre-emption, the condition is that compensation must not be stipulated. If it is stipulated, then the one exercising pre-emption can pay its price and acquire that property. In this case, the right of pre-emption lapses because a gift (hibah) is not compensation; therefore, it is similar to inheritance, and there is no right of pre-emption in inheritance.

2.
The purpose of Imam Bukhari rahimahullah is to clarify that the right which the Messenger of Allah sallallahu alayhi wa sallam has established for someone cannot be nullified by any kind of trickery or other means. (Fath al-Bari: 12/345) Since the intent behind this trick is to abolish the right of pre-emption, and there is also the risk of harm to the one exercising pre-emption, such an act is unlawful and forbidden. However, the tricksters claim that pre-emption applies to buying and selling, and there is no scope for pre-emption in property acquired through gift (hibah). But these people should know that gifting to a specific individual is also, in effect, akin to buying and selling. From this perspective as well, the right of the one exercising pre-emption should remain established. Engaging in such trickery is unlawful because the owner intends to deprive another of his right.

3.
The aforementioned case is, in reality, a sale; only the label of a gift (hibah) has been attached to it. We should avoid giving or receiving such a gift in which the intent is to harm another. In any case, engaging in such unlawful tricks is contrary to the character of a believer. And Allah is the One whose help is sought.

Hadith Commentary:

Abu Rafi’ did not use any pretext or subterfuge as an excuse in fulfilling the right of neighborliness.

This was the practice of the noble Companions (radi Allahu anhum) and all the righteous predecessors (salaf salihin): they did not seek out loopholes or excuses, and considered the fulfillment of the commands of the Shari’ah to be their good fortune.

The Book of Legal Stratagems (Kitab al-Hiyal) has been concluded with this hadith for this very awareness.

Hadith Commentary:
➊
Abu Rafi‘ radi Allahu anhu was a freed slave of the Messenger of Allah sallallahu alayhi wa sallam. He had two houses within the mansion of Sa‘d bin Malik radi Allahu anhu. When he intended to sell them, he first approached his neighbor, Sa‘d radi Allahu anhu, regarding the sale. Sa‘d declined to purchase, so Abu Rafi‘ brought Munabbih bin Mukhramah radi Allahu anhu as an intermediary. Although he could have received five hundred dinars in cash for the property, he preferred the right of neighborhood, bore the loss, and sold it to Sa‘d radi Allahu anhu for four thousand mithqal, and that too on installment payments (Sahih al-Bukhari, Kitab al-Shuf‘ah, Hadith: 2258).

➋
Imam Bukhari rahimahullah, in the Book of Shuf‘ah, has titled this hadith with the following words:
(Bab ‘Ard al-Shuf‘ah ‘ala Sahibihi Qabla al-Bay‘)
“Presenting the property to the one entitled to shuf‘ah before the sale.”
Now observe the trickery of the schemers: they have invented various stratagems to deprive the one entitled to shuf‘ah of his right. We have already discussed these details earlier.

➌
In any case, Abu Rafi‘ radi Allahu anhu did not use any trick or pretext to avoid fulfilling the right of neighborhood. Rather, he gave preference to Sa‘d radi Allahu anhu and offered him the opportunity to purchase first. This was the practice of the noble Companions and all the righteous predecessors. They did not seek out loopholes and excuses; rather, they considered acting upon the Shari‘ah rulings to be their good fortune.

➍
To make us aware of this reality, Imam Bukhari rahimahullah mentioned this hadith at the end. However, the schemers have created their own separate world; they do not heed anyone’s words. In any case, the Ahl al-Hadith are averse to such stratagems and openly declare their disavowal and hatred for them, because these are not employed to establish the truth, but rather to nullify it, as has already been exemplified.

Hadith Commentary:
This hadith, apparently, is evidence for the Hanafis that the neighbor has the right of pre-emption (shuf‘a).
The Shafi‘is interpret it to mean that the intended neighbor is the one who is also a partner in the property being sold, so that there remains no contradiction among the hadiths.

Hadith Commentary:
(1)
Imam Bukhari rahimahullah previously mentioned the causes for the affirmation of pre-emption (shuf‘ah), and in this chapter heading, he wishes to inform about the causes for the forfeiture of pre-emption.
One of these is that when one partner offers pre-emption to the other and he does not take it, then by doing so, the right of pre-emption is forfeited.
However, some jurists are of the opinion that by doing so, his right of pre-emption will not be forfeited because pre-emption has not yet become obligatory.
It becomes obligatory after the sale, so granting permission before or at the time of sale will not be effective.
But this stance is clearly against the hadith.
The Messenger of Allah sallallahu alayhi wa sallam said:
“It is not permissible for a partner to sell (the property) without informing his other partner; if he wishes, he may keep it, and if he wishes, he may leave it.” (Musnad Ahmad: 316/3)
When, after being informed, the partner did not keep it, then what right of pre-emption remains?
Similarly, when the one seeking pre-emption buys the pre-empted property from the buyer, or negotiates to buy it, or acquires it on rent from him, or sells or endows (waqf) his own share through which the right of pre-emption was established, then in all these cases, the right of pre-emption is forfeited.

(2)
It is also established from this hadith that the neighbor also has the right of pre-emption, because in the neighborhood of Sa‘d ibn Abi Waqqas radi Allahu anhu, Abu Rafi‘ radi Allahu anhu had two houses.
It is evident that Sa‘d radi Allahu anhu was not a partner in them, because ‘Umar ibn Shabbah has mentioned that Sa‘d radi Allahu anhu had two houses in his courtyard (balat), between which there was a distance of ten cubits, and the one on the right side of the mosque was the house of Abu Rafi‘, which Sa‘d radi Allahu anhu bought from him.
From this, it is clear that before buying the house from Abu Rafi‘ radi Allahu anhu, Sa‘d radi Allahu anhu was his neighbor, not his partner.
(Fath al-Bari: 4/552, 553)
Some have said that this was the personal action of Abu Rafi‘ radi Allahu anhu.
It is possible that he gave his house to his neighbor as an act of kindness.
But in this regard, our inclination is that the right of pre-emption is not established merely by neighborhood; rather, a shared pathway is necessary for it. Thus, it is mentioned in the hadith that the neighbor is more entitled to pre-emption of his neighbor.
He will be waited for on account of pre-emption, even if he is absent, provided that both have a shared pathway.
(Musnad Ahmad: 3/303)
The narration of Sahih Bukhari has already passed that when boundaries are set and the pathways become separate, then the right of pre-emption no longer remains.

(3)
It should be clear that Imam Bukhari rahimahullah has differed with Imam Shafi‘i in this matter.
His position is that the neighbor who is a partner in the property is entitled to pre-emption, not others, but this hadith supports Imam Bukhari rahimahullah.

(4)
It is also evident from this that Imam Bukhari rahimahullah was not a blind follower (muqallid) of Imam Shafi‘i rahimahullah.

English Translation:

In Sunan and Musnad Ahmad, there is a narration of the same meaning from Hazrat Jabir radi Allahu anhu. In it, there is also this condition: "provided that their path is one." (Musnad Ahmad: 3/303, and Sunan Abi Dawud, Al-Ijarah, Hadith: 3518) Thus, the neighbor also has the right of pre-emption (shuf‘ah) if he shares in the path, etc. In this way, all the narrations can be acted upon. Some scholars have given the right of pre-emption (shuf‘ah) to the neighbor alone, even if he is not a partner in any respect, but this would be in violation of the agreed-upon narrations of the Sahihayn, in which pre-emption (shuf‘ah) is explicitly negated after division and after the paths have become separate. (For example: see Hadith: 4708) Shah Waliullah rahimahullah has classified shuf‘ah into two types: obligatory shuf‘ah and recommended shuf‘ah. Obligatory shuf‘ah is only for the partner, whether he is a partner in the original property or in the path, etc. As for the neighbor who is not a partner in any respect, he is entitled to recommended shuf‘ah, meaning it is good to ask the neighbor before selling, but it is not necessary. He cannot file a claim in court, nor can the sale be annulled at his request, whereas it is necessary to ask the partner; otherwise, he can file a claim in court and have the sale annulled. This reconciliation is also appropriate. And Allah knows best. (For further details, see Hadith: 4650)

Benefit:
From this hadith, it is established that when someone wishes to sell something, his neighbor has a greater right to purchase it. After quoting this hadith, Imam Bukhari rahimahullah writes: "Some people say that when someone intends to sell his house, it is permissible for him to employ a legal device (hiyal) and render the right of pre-emption (shuf‘ah) ineffective. This is done in such a way that the seller gifts (hibah) the house to the buyer and, after demarcating its boundaries, hands it over to him. Then, in exchange for this gift, the buyer pays the owner one thousand as compensation. In this way, the one entitled to pre-emption will no longer have the right of shuf‘ah in it."

It should be noted that Imam Bukhari rahimahullah intended to establish that the right which the Messenger of Allah sallallahu alayhi wa sallam has affirmed for someone cannot be nullified by any kind of legal device (hiyal). [فتح الباري :435/12]