or otherwise; therefore, that which leads to harm is not legislated (25). Moreover, if the matter depended on the judge, he would not be able to take [the pre-emption] except after producing the price, so that it does not lead to this harm. If the pre-emptor becomes bankrupt, the purchaser is given the choice between annulment and joining the creditors for the price, just like the seller if the purchaser becomes bankrupt.
Section: It is not permissible (26) to use a ruse (hilah) to forfeit the right of pre-emption, and if one does so, it does not forfeit it. Ahmad said, in a report by Isma'il ibn Sa'id, when he asked him (27) about the ruse to invalidate pre-emption: "No ruse is permitted in that, nor in invalidating the right of a Muslim." This was also the view of Abu Ayyub, Abu Khaythama, Ibn Abi Shayba, and Abu Ishaq al-Juzajani. 'Abd Allah ibn 'Umar said: "Whoever deceives Allah, He shall deceive him." Ayyub al-Sakhtiyani said: "They deceive Allah just as they would deceive a child; if they had approached the matter in its proper way, it would have been easier for me." The meaning of a ruse is to manifest something in the sale that precludes the taking of pre-emption, while colluding in private on the contrary. Examples of this include buying a share worth ten dinars for one thousand dirhams, then settling it for ten dinars; or buying it for one hundred dinars and settling it for one hundred dirhams; or the seller buying from the purchaser a slave worth one hundred for one thousand [as a debt] on his liability, then selling him the share for the thousand; or buying a share for one thousand, then the seller absolves him of nine hundred; or buying a portion of the share for one hundred, then the seller gifts him the remainder; or gifting the share to the purchaser, and the purchaser gifting him the price; or contracting the sale for a price of unknown quantity, such as a handful of gold dust, or a specific gemstone, or a specific commodity (28) that is not described, or for one hundred dirhams and a pearl (29), and the like. This
(25) In the original: "in both of them". (26) In the original: "and it is not valid". (27) In [B], [M]: "you asked him". (28) Omitted from the original. (29) In the original: "and a pearl".
