Muslim

Hadith Commentary: Benefits and Issues:
Al-shuf‘ah in every partnership:
That shuf‘ah (preemption)
is in a thing involving partnership and joint ownership.
This is evidence
that if there is no partnership,
then the right of shuf‘ah will not be legally established.
However, if the owner, of his own accord, gives it to the neighbor,
then that is better.

Hadith Commentary:
(1)
When the partners have divided the jointly owned property, then the right of pre-emption (shuf‘ah) and the right of retraction (ruju‘) no longer remain, because the stability of society is based on the principle that once an agreement is finalized, the right of retraction is forfeited.
If, under such circumstances, the right of retraction is granted, society will fall into instability, and disorder and chaos will spread within the state.
It should not be the case that a sale and purchase agreement took place twenty years ago, and today someone is granted the right of pre-emption; in such a manner, no business could function.

(2)
The hadith mentions pre-emption (shuf‘ah), whereas the chapter heading also mentions retraction (ruju‘)? The answer is that if the partners no longer have the right of pre-emption, then, a fortiori, the right of retraction is also terminated, because if the right of retraction is acknowledged, then, a fortiori, the right of pre-emption would also have to be acknowledged.
When the negation of pre-emption necessitates the negation of retraction, Imam Bukhari rahimahullah mentioned retraction along with pre-emption.
And Allah knows best.

Hadith Commentary:
By "wealth" is meant immovable property, such as a house, land, garden, etc., because there is consensus that there is no right of pre-emption (shuf‘ah) in movable property, and the opinion of ‘Ata’ is rare, who says that there is shuf‘ah in everything—even in clothing.
This hadith supports the madhhab of the Shafi‘iyyah, that the neighbor does not have the right of shuf‘ah; only the partner does.
Here, Imam al-Bukhari rahimahullah has brought this hadith and derived the meaning of the chapter in such a way that when the partner has the right of shuf‘ah, he will buy the share of the other partner.
Thus, it is permissible for one partner to sell his share to the other partner, and this is precisely the meaning of the chapter heading.
Shuf‘ah refers to that right which remains with a neighbor or a partner in the property of his other neighbor or partner until that neighbor or partner sells his property.
The ruling of the Shari‘ah is that in the sale and purchase of such property, the one who holds the right of shuf‘ah is authorized that if a non-partner purchases the property, he may lay claim to it, have the first sale annulled, and purchase it himself. In such matters, the holder of the right of shuf‘ah has precedence.
There are many further details in this regard, some of which Imam al-Bukhari rahimahullah has mentioned here in the light of ahadith.
Many forms of this are mentioned in the prevailing Muhammadan Law (India).

Hadith Commentary:
(1)
By "this wealth" is meant immovable property, such as: houses, land, and gardens, etc., because in movable property, by unanimous agreement, no one has the right of pre-emption (shuf‘ah).

(2)
Ibn Battal rahimahullah says:
The purpose of Imam Bukhari rahimahullah is to establish the permissibility of buying and selling a jointly owned item, meaning that this sale is valid just like the sale of a stranger’s property.

Other scholars say:
The purpose of the heading is to encourage the partner that if he wishes to sell his share, he should sell it to his partner, because if he sells it to someone else, then the partner will have the right of pre-emption (shuf‘ah).
(Fath al-Bari: 4/515)

‘Allamah ‘Ayni rahimahullah says:
The purpose of this heading is to encourage the partner that if he wishes to sell his share, he should sell it to his partner, because when the partner can acquire the sold share through the court, then selling it to him willingly is even better; doing so will please him.
(‘Umdat al-Qari: 8/521)

It should be noted that the rulings and issues related to pre-emption (shuf‘ah) will be explained later in the Book of Shuf‘ah, insha’Allah.

Hadith Commentary:
Because the buyer is a partner in this house, and the right of a partner takes precedence over the right of a neighbor. And these people have considered such a legal stratagem (hiyal) permissible for the buyer, even though it involves depriving a Muslim of his right. And it is astonishing regarding those jurists who consider such stratagems to be permissible.

Hadith Commentary:
1.
Imam Bukhari rahimahullah has mentioned four scenarios to establish the contradiction in the statements of those who devise legal stratagems (hiyal) regarding the right of pre-emption (shuf‘a). The first scenario is presented here. He states that they first affirmed the neighbor’s right of pre-emption, then themselves described a stratagem to nullify this right: that the buyer purchases only one shared portion out of a hundred portions of the house from the seller, by which the buyer becomes a partner with the seller in the purchased house.
Now, the neighbor will consider this one portion insignificant and trivial, and will not exercise pre-emption (shuf‘a) over it. Then, since the buyer has become a partner in the house, and the partner’s right is given precedence over the neighbor’s right, he can now purchase the remaining ninety-nine portions of the house. Now, the neighbor will have no right of pre-emption over these remaining portions.
In this manner, those who devise legal stratagems, after affirming the neighbor’s right of pre-emption, have nullified it: neither can the neighbor exercise pre-emption in the first instance, because it is extremely little, nor in the remaining portions, because the partner’s right takes precedence.
To establish this contradiction, Imam Bukhari rahimahullah has presented this hadith.
2.
The Shari‘ah has granted the neighbor the right of pre-emption so that he may be protected from the potential harm caused by a new occupant, because the seller, after selling the house, will leave. Now, by employing this stratagem, the seller has caused harm to his neighbor. We are astonished at those who declare such stratagems permissible, by which a Muslim is deprived of his rightful claim.
3.
According to our view, employing a stratagem to usurp someone’s right is haram (forbidden) and impermissible, the details of which we have already explained previously.
4.
It should be clear that, according to us, the right of pre-emption is not established merely by neighborhood; rather, a shared pathway is also necessary, as clarified in a hadith in which the Messenger of Allah sallallahu alayhi wa sallam said:
“The neighbor has more right to pre-emption regarding his neighbor. He will be waited for due to pre-emption, even if he is absent, provided that their pathway is one.”
(Sunan Abi Dawud, al-Buyu‘, Hadith 3518)
This position is also supported by the statement of the Messenger of Allah sallallahu alayhi wa sallam that when boundaries are set and pathways are separated, then the right of pre-emption ceases, as mentioned in the aforementioned hadith.
Imam Bukhari rahimahullah has also alluded to this position through this hadith.
And Allah knows best.

Hadith Commentary:
Qastallani rahimahullah said: From this it is derived that pre-emption (shuf‘ah) applies to immovable property, not to movable property. This issue has already been discussed previously.

Hadith Commentary:
Partnership in land, plots, houses, etc. is permissible.
If any partner sells his share of his own accord, then the other partner has the right of pre-emption (shuf‘ah).
When the property is divided and the partnership no longer exists, then the right of pre-emption also lapses. For example:
There is a mansion with several rooms, and several people have a share in it.
If one partner’s room is separated and he is given a pathway, then if the owner wishes to sell the other rooms, he may do so, because the partner’s pathway is specified and its boundaries have been determined.
In any case, the purpose here is not to discuss the rulings and issues of pre-emption, but only to clarify the permissibility of partnership in land and similar properties.
Further clarification regarding pre-emption will be given in the following section.

Hadith Commentary:
Vocabulary of the Hadith:
Shuf‘ah:
Derived from shaf‘ (pair),
which means to join one thing with another,
because the holder of the right of shuf‘ah
joins the thing entitled to shuf‘ah with his own property.

Benefits and Issues:
According to the four Imams and the majority of jurists, the right of shuf‘ah pertains only to immovable property,
as is evident from the explicit mention in the hadith of
land,
house,
and garden.
However, according to Hafiz Ibn Hazm, it applies to every jointly owned thing,
whether movable or immovable, the right of shuf‘ah is established.
And according to the Imams of Hijaz (Malik,
Shafi‘i,
Ahmad),
the right of shuf‘ah
is granted only to a partner;
if there is no partner,
then the right of shuf‘ah is not granted.
And where four are given the right of shuf‘ah,
there the neighbor (jar)
is included as a partner,
otherwise, “al-jaru ahaqqu bisaqabihi”
that the neighbor, due to his proximity, is more entitled, or “jar al-dar ahaqqu bidar al-jar,”
the neighbor is more entitled to the neighbor’s house,
would mean that he is even more entitled than the partner,
because it is not necessary for the partner to be a neighbor,
whereas according to the Hanafis, the most entitled is
the partner,
after him the khalit, i.e., the one who shares in the rights of the sold property,
such as sharing in the path or water,
and lastly, the neighbor has a rank.
And according to Imam Shah Waliullah, the neighbor,
legally, is not entitled,
but morally, he is entitled,
and “ad-dinu an-nasihah,”
the religion is named for sympathy and goodwill, and this is what it demands.
(Hujjat Allah, vol. 2, p. 113)

Explanation:
1:
This hadith is evidence that the right of pre-emption (shuf‘ah) of an absent person is not invalidated.
Furthermore, it is also understood from this that mere neighborhood is not sufficient for shuf‘ah; rather, participation in the pathway (i.e., shared access) is also necessary.
This is further supported by the following statement: “When boundaries are established and the pathways become separate, then the right of shuf‘ah no longer remains.”

It is as if the right of the neighbor is other than that of pre-emption (shuf‘ah), as has been stated in detail by Shah Waliullah rahimahullah in his *Tafhimat-e-Ilahiyyah*. In many ahadith, there is strong emphasis on observing the rights of the neighbor; therefore, from this narration, the right of pre-emption (shuf‘ah) for the neighbor cannot be established. The details have already been discussed previously. For the partner, there is the right of pre-emption (shuf‘ah), and for the neighbor, there is the right of neighborhood (jiwar).

For details, see the benefits and issues (fawa’id wa masail) of Hadith: 4650.

(1) The purpose of the chapter established by Imam al-Nasa’i rahimahullah is to clarify the ruling regarding the sale of a jointly owned item. If a partner wishes to sell his share, it is necessary for him to obtain permission from the other partners. If someone sells his share without the consent of his partner, then the partner has the right to take that share in exchange for the amount that has been set for it. His right is greater and superior to that of all other people.

(2) This blessed hadith is an explicit proof for the establishment of the right of pre-emption (shuf‘ah) for a partner. The scholars are unanimous on this.

(3) The principles and regulations of the pure Shari‘ah are based on the welfare of the people. In a jointly owned item, various partners may only take action after mutual consultation and taking the other into confidence. Any action taken in a jointly owned item without consultation is not considered valid.

(4) Shuf‘ah refers to the right that one partner has over the share of another partner, such that in the event of its sale, he is more entitled than others to purchase it. However, this right exists only in a jointly owned item. When an item is divided, boundaries are set, even the pathways become separate, and no form of partnership remains, then this right also ceases to exist, because they are no longer partners. Merely being a neighbor does not entitle anyone to this right. This issue has already been explained in detail previously.

(5) “Every jointly owned item”—some jurists have excluded movable items from the right of shuf‘ah, but no rational justification for this is understood. The reasons for which shuf‘ah has been legislated are equally found in both movable and immovable property.

(6) This narration establishes that a jointly owned item may be sold in its entirety or in specific portions; that is, a partner may sell only his own share, whether to another partner or, with his permission, to someone else. This is also the purpose of the chapter.

Benefits and Issues:
(1)
In a jointly owned item, if one partner wishes to sell his share, he should first inform his other partners so that if they wish to purchase it, they may do so.

(2)
This right applies to land or a house, as well as to any other jointly owned item.

(3)
When the jointly owned item has been divided, and the house or land has been apportioned so that each person’s share is specified—such that up to this point is so-and-so’s share, and beyond that is someone else’s share—then the partnership ends and only neighborhood remains. In this situation, the person who was previously a partner cannot claim the right of pre-emption (shuf‘ah) on the basis of neighborhood alone.

(4)
In some ahadith where the neighbor’s right of pre-emption is mentioned, what is meant is not an absolute neighbor, but only that neighbor who is a partner in the pathway or land, etc. If this is not the case, then even a neighbor is not entitled to the right of pre-emption, because when it has been stated that after boundaries and pathways have been separated there is no right of pre-emption, then mere neighborhood cannot justify the neighbor’s right of pre-emption.

Benefit:
In this hadith, an important principle of sale is stated: that land and similar property should not be sold without the permission of the partner (co-owner) or neighbor, because he has a greater right to purchase it. If he acquires it, then there remains no need to sell it to an outsider. This principle encompasses many great benefits within itself.