[Is It Permissible for the Judge to Coach the Buyer in What Nullifies the Pre-emptor’s Shufʿah?]

Answer—and from Allah is success and right guidance: if the pre-emptor adduces the causes, conditions, and proofs (bayyina) by which he is entitled to shufʿah, and the buyer is unable to present anything that rebuts any of that, then at that point the pre-emptor deserves shufʿah; what motivated him to seek it, and what drove him to it, has no effect. It is not permissible for the judge to coach the buyer with arguments to defeat the shufʿah for the reason just mentioned.
It is not considered prohibited coaching, however, for the judge to ask the pre-emptor or the party against whom shufʿah is claimed questions such as: “Did you go to seek shufʿah from the buyer or from someone else? Why, when you learned the price, did you go to a man who has no connection or relation to the property or to the buyer to claim shufʿah?”
Likewise, it is permissible for the judge to say to the buyer: “Did the pre-emptor come to you, once he learned the price, to seek shufʿah from you? What did he say to you? Did he give you the shufʿah token coin, or did he give it to someone else?”
We say this is not the prohibited kind of coaching, because the judge is obliged to be certain concerning the rulings he issues; careful fact-finding by the judge is obligatory. If that certitude comes by questioning and examining the litigants—or either of them—then that is incumbent upon him.
— If the buyer possessed a cause of shufʿah regarding what he purchased, then his purchase is deemed an exercise of shufʿah (istishfāʿ).
— The pre-emptor becomes entitled to shufʿah by one of four (causes):
1- That the pre-emptor is a co-owner (khalīṭ)—meaning he owns an undivided share, whether a third or less or more, of land, a house, a shop, equipment, and the like; the share must be undivided (mushāʿ).
2- That the pre-emptor is a partner in the watercourse (ṭarīq al-māʾ) that descends along this channel both to his land and to the sold land; and the watercourse must be privately owned.
3- Shared access ways to houses; it is a condition that the access way be privately owned by the residents of those houses. As for a road that is not specific to particular persons, it is not a cause of shufʿah.
4- That the pre-emptor is an immediately adjoining neighbor; in that case he is entitled to shufʿah in what adjoins him.
— Shufʿah is inheritable; if one entitled to shufʿah dies, the right passes to his heirs.
— If those entitled to shufʿah are two or more, the shufʿah is divided equally among them—the one with a larger undivided share and the one with a smaller share are equal in it.
— It is permissible to employ stratagems (ḥiyal) to nullify shufʿah. Among such stratagems are:
1- That the seller, before the sale, gifts the buyer an undivided percentage of what he intends to sell—say, one-tenth—then sells him the remainder, i.e., the other nine-tenths.
2- That the seller excepts (from the conveyance) a strip a handspan wide, for example, of the land, separating the sold plot from the neighbor who would otherwise seek shufʿah.
— The jurists of the school and others said:
The pre-emptor deserves shufʿah even if he had renounced it before the sale. Their proof is that he only becomes entitled to shufʿah by the contract of sale; before the sale he does not deserve it, and a renunciation of what one does not (yet) deserve is invalid.
It may be said in reply: what you have stated is built on the premise that the effective cause (ʿillah) of the pre-emptor’s entitlement to shufʿah is the sale.
— Closer to the truth is to say: neighborhood (jiwār), co-ownership (khalṭah), and the like are the cause of shufʿah, while the sale contract is a condition.
The proof for what we have stated is what has come in the reports from the Prophet Muhammad (May Allah bless him and his family and grant them peace) and from ʿAlī (Peace be Upon Him) and others—that he ruled shufʿah for the neighbor. Thus, this serves as a reminder that the effective cause ('illah) is neighborhood.
In the report whose meaning is: “The neighbor has the strongest claim to the goods if (the claim) is made at the price,” there is evidence for what we have mentioned regarding the cause; and that the sale is only a condition. On that basis, shufʿah falls by renunciation before the sale, because the cause—neighborhood and the like—is present.
— Analogous to what we have stated is what the jurists of the school say regarding validating a bequest by a deathly-ill person in excess of one-third: they deemed it sound. The reasoning for its soundness is that the heirs have a right in the estate of the testator by virtue of being his heirs and kin; this right does not materialize and become established for the heirs except upon the death of the testator.
— And likewise what they said: that the presence of the zakāt-threshold (niṣāb) in one’s ownership is the cause of zakāt’s obligation, while the lapse of a lunar year (ḥawl) is the condition for the obligation’s realization and establishment.
Source: Min Thimār al-ʿIlm wa al-Ḥikmah vol.2