What Is the Ruling on Pre-Emption (Shuf‘a) in Sacred Law?
Answered by Shaykh Dr. Muhammad Abu Bakr Badhib
Question
What is the ruling on shuf‘a (pre-emption), and is it obligatory to act upon it, or is it merely permissible?
Answer
In the name of Allah, and all praise is due to Allah, and blessings and peace be upon our master Muhammad, the Messenger of Allah, his Family, his Companions, and those who follow him.
Definition of Pre-Emption (Shuf‘a)
Shuf‘a is a type of Islamic legal transaction established to protect rights. According to scholars, shuf‘a is defined as “a compulsory right of ownership that is established for a pre-existing partner over a new partner in a property that is sold for compensation.” [Haytami, al-Manhaj al-Qawim; Ramli, Ghayat al-Bayan]
The permissibility of shuf‘a is based on the hadith of Jabir: “The Prophet (Allah bless him and give him peace) ruled that there is shuf‘a in everything that has not been divided; but once boundaries have been set and paths have been marked, there is no shuf‘a.” [Bukhari]
Ruling on Shuf‘a
Shuf‘a is permissible and legislated as it is a legitimate right. If a person desires to take up their right, they may do so, and if they choose to relinquish it, this is considered a waiver of that right and an indication of no interest in exercising it. [See: Khin/Bugha/Sharbaji, al-Fiqh al-Manhaji]
How Shuf‘a Works: An Example
To understand how shuf‘a works and to provide an example, we refer to the explanation given in “al-Fiqh al-Manhaji”:
“Shuf‘a is a right affirmed by Sacred Law, through which a pre-existing partner acquires what their partner has sold to someone else. For instance, if two people are partners in a house and one of them sells their share to a third party, the existing partner has the right to take that share from the buyer—who has become their new partner—without their consent, for the same price the buyer paid. This is an exception to the general rule of ownership in Islamic law, which requires the owner’s consent. The term shuf‘a derives from the idea that the partner ‘adds’ the sold share to their own.” [Ibid.]
Summary and Conditions
From this example, we can deduce the answer to the second part of the question: Shuf‘a is not obligatory upon the preemptor (shafi‘); however, if they demand their right, the other party must comply, as the shafi‘ (the pre-existing partner) has the legitimate right to it.
There are certain conditions for shuf‘a, such as the requirement to promptly request it without undue delay, unless the preemptor is prevented from doing so by circumstances like travel or lack of knowledge of the situation. Once they become aware, they must declare their claim to the right and may appoint someone in their place if they are not able to attend in person. There are further details and various scenarios related to this topic in the books of Islamic jurisprudence.
Conclusion
Therefore, it is important for Muslims to know their religion and be aware of their rights and obligations so that they do not lose their rights.
Allah is the One Who grants success and guides to the straight path.
[Shaykh] Dr. Muhammad Abu Bakr Badhib
Shaykh Dr Muhammad Abu Bakr Badhib is a prominent Islamic scholar from Yemen born in Shibam, Hadhramaut, in 1976. He received his degree in Shari‘a from Al-Ahqaf University, a master’s degree from the Islamic University of Beirut, and a PhD in Usul al-Din from Aligarh Muslim University (AMU).
He studied under great scholars such as Shaykh al-Habib Ahmad Mashhur al-Haddad, Shaykh Fadl Ba‘ fadl, Habib Salim al-Shatiri, Habib Ali Mashhur bin Hafeez, and others. He has served as the Director of Publications at Dar al-Fiqh, the former Deputy Director of Cultural Relations at Al-Ahqaf University, a former Assistant for Employee Affairs at Atiyah Iron Company, a researcher at the Sunna Center affiliated with the Dallah al-Baraka Foundation, and a researcher at Al-Furqan Foundation’s Makka al-Mukarrama and Madina al-Munawwara Encyclopedia branch.
Currently, he is a researcher at Al-Furqan Foundation’s Makka al-Mukarrama and Madina al-Munawwara Encyclopedia branch, teaches traditionally through the Ijaza system at Dar al-Fuqaha in Turkey, supervises the Arabic department at Nur al-Huda International Institute (SeekersGuidance), and is a member of the Board of Trustees of the Manuscript House in Istanbul.
His works include “The Efforts of Hadhramaut Jurists in Serving the Shafi‘i School,” “Contributions of Hadhramaut Scholars in Spreading Islam and its Sciences in India,” “Hada’iq al-Na‘im in Shafi‘i Fiqh,” in addition to verifying several books in Fiqh, history, the art of biographies, and Asanid (chains of narration).
