Al-Bukhari’s objection to the stratagem for voiding pre-emption

Question

Question: I submit the following. Imam al-Bukhari ﵀, in Sahih al-Bukhari, volume two, p. 1032, in the Book of Stratagems (Kitab al-Hiyal), objecting to the Imam Aʿzam ﵀, after saying, as is his habit, “Some people said” (qala baʿd al-nas), wrote: [ar]إن اشترى نصيب دار فأراد أن يبطل الشفعة وهب لابنه الصغير ولا يكون عليه يمين[/ar] “If he bought a share of a house and wished to void the pre-emption, he gives it as a gift to his minor son, and there is no oath upon him” (Sahih al-Bukhari, vol. 2, p. 1032).

Answer

Once the essential elements (arkan) of a contract are realized, the contract is concluded; yet, despite its being concluded, it is necessary that in the view of the Sharia it be commendable. The word “hila” (stratagem) has a very bad reputation in Urdu; in its place the word “tadbir” (means, measure) is more suitable.

Source: Fatawa Mahmudiyya

Preview. The full text opens with JavaScript enabled.