The Admissibility of the Pre-emptor’s or Contracting Party’s Claim in Cases of Dispute over Price or Right of Neighbourhood in Pre-emption: A Comparative Jurisprudential Study Based on Badā’iʿ al-Ṣanā’iʿ

This study investigates the Islamic legal ruling in cases where a dispute arises between the pre-emptor (shafīʿ) and either the buyer or the seller concerning the sale price or the right of neighbourhood (ḥaqq al-jiwār) within the framework of pre-emption (shufʿah). The research centres on the seminal Ḥanafī legal text Badā’iʿ al-Ṣanā’iʿ by al-Kāsānī and adopts a comparative jurisprudential approach, examining the positions of the four Sunni schools of law. The methodology employed is analytical and comparative, involving a detailed analysis of the legal evidences and their evaluation across the four madhāhib to determine the most authoritative opinion. The study comprises an introductory section that defines shufʿah, explores its historical and doctrinal significance, and four main discussions: (1) disagreement between the buyer and the pre-emptor regarding the sale price; (2) disagreement between the seller and the pre-emptor on the price; (3) dispute between an adjacent neighbour and the buyer concerning the right to pre-emption; and (4) the ruling on whether the pre-emptor must acquire the entire property subject to pre-emption or may acquire it in part. The conclusion outlines key findings and recommendations. Chief among the findings are: recourse to expert assessment in price disputes between the buyer and the pre-emptor; acceptance of the buyer’s claim unconditionally when the dispute is between buyer and seller; confirmation of the adjacent neighbour’s right to pre-emption regardless of co-ownership status; and the prohibition of partial acquisition through pre-emption, obliging the pre-emptor to accept both properties in full. The study concludes by recommending further investigation into the application of pre-emption in contemporary legal systems and the analysis of newly emerging rulings and developments in this domain.