Is stratagem (Hilah) permissible to negate the right of Preemption (Shuf'ah)?

General Chapter

Al-Mughni

Book of Preemption (Shuf'ah)

Book 23 · Issue 1 · Bab 1

Open in Qurani

Primary text

Stratagem to nullify the right of preemption is unlawful, and if employed, the preemption right is not extinguished. This view is held by Ahmad, Abu Ayyoub, Abu Khaythama, Ibn Abi Shaybah, and Abu Ishaq Al-Jauzajani. The basis for this prohibition is the saying of Abdullah ibn Umar: "Whoever deceives Allah, Allah deceives him." Furthermore, employing such trickery is likened to deceiving Allah, as stated by Ayyub As-Sikhtiyani. Evidence against such trickery is derived from the Prophet's saying regarding a horse placed between two others in a race: "Whoever places a horse between two horses and does not expect it to win, it is not gambling, but if he expects it to win, it is gambling." This signifies the invalidation of any stratagem whose sole purpose is to permit the impermissible without genuine substance. Additionally, supporting evidence comes from the Prophet's prohibition against following the methods of the Jews who sought to legalize what Allah forbade through minor tricks, such as when they rendered animal fat lawful by melting it down and selling the resulting liquid, as recorded in a Hadith narrated by Abu Hurayrah (agreed upon). The act is also a deceit against Allah and the believers, as mentioned in the Quran: "They seek to deceive Allah and those who believe, but they deceive none but themselves, and they perceive not" (Quran 2:9).

Supporting text

The legal maneuvers intended to negate preemption include artificially inflating the price, making part of the price unknown, selling a part of the property while gifting the remainder, or exchanging a known item for an unknown price, such as a handful of slag or a specific jewel. If these acts occur without the intent of trickery, preemption lapses. However, if employed as a stratagem to negate preemption, the preemption right remains valid, and the preempter acquires the property at the true underlying price or its equivalent value.