allows for it to remain a mill, preemption is not mandatory. As for the road, if a house is sold and it has a road [leading] to a public street or an accessible thoroughfare, there is no preemption in that house or in the road, because no one else shares in it. If the road is in a non-accessible thoroughfare (darb), and the house has no other road except that one, there is also no preemption; because establishing it would harm the buyer, as the house would be left without a road. But if the house has another door from which it can be accessed, or if it has a space where a door can be opened leading to a public thoroughfare, we then examine the road of the sold property of the house; if it is such that it cannot be divided, there is no preemption in it. If it can be divided, preemption is mandatory for it, because it is shared land that permits division, so preemption is mandatory therein, just like things other than a road. It is possible that preemption is not mandatory in it at all; because harm befalls the buyer by shifting the road to another location, along with the fact that taking it by preemption involves breaking up the buyer's deal and taking a portion of the sold real estate without the other, which is not permitted—just as if the partner in the road were a partner in the house and wanted to take the road alone. The ruling on the neighbor's vestibule (dihliz) and its courtyard (sahn) is the same as the ruling on a privately owned road. If the buyer's share of the road is more than his need, the Qadi (judge) stated that preemption is mandatory in the surplus in all cases, because the requisite condition is found and the preventing factor is absent. The correct view is that there is no preemption in it, because in establishing it, there is a fragmentation of the buyer's deal, and it is not free from harm.

Section: The fourth condition is that the share (shiqs) must be transferred in exchange for a consideration (iwad). As for that which is transferred without consideration, such as a gift without a return (thawab), charity, a bequest, or inheritance, there is no preemption in it according to the general body of scholars; among them are Malik, al-Shafi'i, and the People of Opinion (Ashab al-Ra'y). Another narration was related from Malik regarding that which is transferred by gift or charity, that there is preemption in it, and the preemptor takes it for its value. This has also been related from Ibn Abi Layla, because preemption was established to remove the harm of shared ownership, and this is present in shared ownership however it came about, and the harm befalling the donee is less than the harm to the buyer; for the buyer's resolve to purchase the share and his expenditure of wealth for it is evidence of his need for it, so stripping it from him is a greater harm than taking it from one who did not exhibit evidence of need for it. Our argument is that it was transferred without consideration, so it resembles inheritance. Also, the case upon which there is agreement is the sale, and the report came concerning it, and anything else is not in the same category; because the preemptor takes it from the buyer by the same means through which it was transferred to him, and this is not possible in other cases. Furthermore, the preemptor takes the share for its price, not its value, whereas in other cases he would take it for its value, so they differ. As for that which is transferred for consideration, it is divided into two types: one is that for which the consideration is wealth, such as a sale, and in this, there is preemption without disagreement. It is included in the hadith of Jabir, "If he has sold and did not inform him, he has the better right to it." Likewise is every contract that proceeds in the manner of a sale, such as a settlement (sulh) that carries the meaning of a sale, a settlement regarding criminal acts that require payment of wealth, and a gift in which a known return (thawab) is stipulated, because that is a sale in which the rulings of a sale have been established, and this is one of them. This is the view of Malik, al-Shafi'i, and the People of Opinion. However, Abu Hanifa and his companions said: Preemption is not established in a gift for which a return is stipulated until they have taken possession, because a gift is not established except through taking possession, so it resembles a sale with a condition of option (khiyar). Our argument is that he owns it for a consideration which is wealth, so it does not require taking possession for the eligibility of preemption, like a sale. What they said about considering the wording of the 'gift' is incorrect, because the consideration diverted the wording from its implication and made it an expression for a sale, especially according to them, for it is a term through which a marriage contract can be concluded, in which a gift (in the sense of simple donation) is not valid by consensus. The second type is that which is transferred for a consideration other than wealth, such as if he makes the share a dowry, or as compensation in a khul' (divorce initiated by the wife), or in a settlement regarding intentional homicide. The literal implication of the statement of...