What is "shuf'ah" in Islamic sharia?
I kindly inquiry for 3 example cases that illustrate shuf'ah, for better understanding.
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Simply speaking -I hope I could find the right words because it is a bit difficult to translate and explain- Shuf'ah الشُّفْعة is the right of a partner (in business or neighbor) to buy the share(s) of his other partner(s),
in case that his/their other partner(s) needed/wanted to sell his/their share(s).
It is rather like a veto right in such a case let's make a simple example of two partners who had a business:
Assuming they never really defined shares/parts of the business estate (or even the business for the case of liquidation) itself. So if companion A wants or needs to sell his part of the business and finds a buyer and fixes a price with him. And before selling (what happens after the selling in case that the partner(s) was/were not informed or whether this veto holds even after the sale will be addressed later) his share of the business has taken place his companion B has the right to buy it from him with this fixed price.
The (at this point business external) buyer has no advantage here and can't interfere in this transaction between the earlier companions.
Sometimes Shuf'ah is translated as "pre-emption".
In other wordsShuf'ah is the right or due of a companion who wants to leave a business to inform his partner(s) and offer them his share of the business beforehand or first. If the partner(s) was/were ready to buy the share he shall give it to them (for an agreed upon price) else he may offer or sale it to somebody else. Whether the partner(s) are allowed to buy his share after the transaction is discussed among scholars.
Only the Mu'tazili scholar abu Bakr al-Assam أبو بكر الأصم is known to have rejected to whole idea of Shuf'ah.
The qur'an actually quotes the term الشُّفْعة in a few verses, but without leaving a clear practical link therefore I will not share qur'an quotes. In the sunnah we may find:
Allah's Messenger (ﷺ) gave a verdict regarding Shuf'a in every undivided joint thing (property). But if the limits are defined (or demarcated) or the ways and streets are fixed, then there is no pre-emption. (Sahih al-Bukhari)
Jabir bin 'Abdullah (Allah be pleased with them) said that the Messenger of Allah (ﷺ) decreed pre-emption in every joint ownership and not divided-the one-it may be a dwelling or a garden. It is not lawful for him (for the partner) to sell that until his partner gives his consent. He (the partner) is entitled to buy it when he desires and he can abandon it if he so likes. And if he (the one partner) sells it without getting the consent of the (other partner), he has the greatest right to it. (Sahih Muslim)
While I was standing with Sa'd bin Abi Waqqas, Al-Miswar bin Makhrama came and put his hand on my shoulder. Meanwhile Abu Rafi', the freed slave of the Prophet (ﷺ) came and asked Sa'd to buy from him the (two) dwellings which were in his house. Sa'd said, "By Allah I will not buy them." Al- Miswar said, "By Allah, you shall buy them." Sa`d replied, "By Allah, I will not pay more than four thousand (Dirhams) by installments." Abu Rafi' said, "I have been offered five hundred Dinars (for it) and had I not heard the Prophet (ﷺ) saying, 'The neighbor has more right than anyone else because of his nearness, I would not give them to you for four-thousand (Dirhams) while I am offered five-hundred Dinars (one Dinar equals ten Dirhams) for them." So, he sold it to Sa'd. (Sahih al-Bukhari)
I'm quoting (translating) from al-Fiqh al-Islaamy wa Adillatuhu of Wahbah al-Zuhayli here:
Note: in the following I'll be translating from Arabic language, as these translations are of my own take them with the necessary care!
الشفعة لغة: مأخوذة من الشفع بمعنى الضمّ أو الزيادة والتقوية، تقول: شفعت الشيء: ضممته، سميت شفعة؛ لأن الشفيع يضم مايتملكه بهذا الحق إلى نصيبه أو ملكه، فيزيده عليه، ويتقوى به،...
Shuf'ah in Arabic language: is taken from a-Shaf' in the sense of joining or adding and strengthening. One says: I've performed Shufa'h for a thing: meaning I've joined/added it (to my belongings). It was called Shuf'ah; Because the person performing it includes what he possesses with this right to his share or possession, so he increases it and becomes strong with it.
وفي الاصطلاح الفقهي: هي حق تملك العقار المبيع جبراً عن المشتري، بما قام عليه، من ثمن وتكاليف (أي النفقات التي أنفقها) لدفع ضرر الشريك الدخيل أو الجوار. وهذا عند الحنفية لأن الشفعة تثبت عندهم للشريك والجار.
In the terminology of jurisprudence: It is the right to compulsory possession of the property sold on behalf of the buyer, for the price and costs (i.e. the expenses he spent) on his behalf, to pay the damage to the intruder or neighbor. And this is at the view of the hanafi schoool of fiqh because Shuf'ah is established for them for the partner and the neighbor.
To be continued