In the name of Allah, Most Merciful, the Bestower of Mercy.
All praise is due to Allah, Lord of all creation, and may the peace and blessings of Allah be upon our Prophet Muhammad, his family and all his Companions.
Abu Hurairah (Allah be pleased with him) said that the Messsenger of Allah (ﷺ) said:
لَا تَرْتَكِبُوا مَا ارْتَكَبَتِ الْيَهُودُ، فَتَسْتَحِلُّوا مَحَارِمَ اللَّهِ بِأَدْنَى الْحِيَلِ
“Do not carry out what the Jews carried, such that you make lawful the prohibitions of Allāh by means of the slightest legal deception (hiyal).”
Reported by Ibn Battah in Ibtāl al-Hiyal (p. 46), Ibn Katheer said in his Tasfeer: ‘Its chain of narration is good.’ (3/493). Al-Albānī agreed in as-Silsilah ad-Daʿīfah (1/608).
Al-ʿAllāmah Ibn ʿUthaimeen (rahimahullāh) said:
Instead of saying, “Take these two sāʿs (4.8 kg) of inferior dates and give us one sāʿ (2.4 kg),” you say, “Take these inferior dates for ten riyals, and give me one sāʿ for ten Riyals.” This is merely a deceptive legal stratagem (hīlah). In reality, it is dates for dates, with unpaid money inserted between the two transactions.
However, this line of argument is not correct, because the statement of the Messenger ﷺ, “Sell the mixed-quality dates for dirhams, then buy good-quality dates with those dirhams,” is unrestricted. He did not say, “Buy from the same person to whom you sold,” nor did he say, “Buy from someone else.” Thus, the wording is unrestricted, and unrestricted texts are to be understood in light of what the Sunnah establishes elsewhere; namely, the prohibition of deceptive legal stratagems (hiyal).
Indeed, the Sunnah clearly establishes the prohibition of legal stratagems, as in the Prophet’s ﷺ statement:
قَاتَلَ اللَّهُ الْيَهُودَ، إِنَّ اللَّهَ لَمَّا حَرَّمَ عَلَيْهِمْ شُحُومَهَا جَمَلُوهَا – يَعْنِي: أَذَابُوهَا – ثُمَّ بَاعُوهَا فَأَكَلُوا ثَمَنَهَا
“May Allāh curse the Jews. When Allāh forbade them the fat of animals, they instead melted it down (meaning, they rendered it as liquid), then sold it and consumed its price.”
So he invoked Allāh’s curse upon them because they resorted to a deceptive legal stratagem. When fat was made unlawful for them, they said, “We will not eat the fat. Rather, we will melt it down, then sell it, and then take the money.”
It is well known that the One (Allāh) who forbids exchanging one ṣāʿ (2.4 kg) of dates for two sāʿs of dates (4.8 kg), by virtue of His perfect wisdom, would never permit you to say: ‘I have sold you these two ṣāʿs for ten dirhams, so give me in exchange for them one sāʿ of good-quality dates.’ This is nothing but playing games with the legislation. Therefore, there is no proof in the ḥadīth for the position they have adopted, because it is unrestricted (muṭlaq), and what is unrestricted must be understood in light of the textual proofs that establish the prohibition of legal stratagems (hiyal).” (Bulūgh al-Marām: Sharh Kitāb al-Buyūʿ, part 16 of Ibn ʿUthaimeen)
Shaikh al-Islam Ibn Taymiyyah (rahimahullāh) said: “Abu Hurairah (Allah be pleased with him) said that the Messsenger of Allah (ﷺ) said:
لَا تَرْتَكِبُوا مَا ارْتَكَبَتِ الْيَهُودُ، فَتَسْتَحِلُّوا مَحَارِمَ اللَّهِ بِأَدْنَى الْحِيَلِ
‘Do not carry out what the Jews carried, such that you make lawful the prohibitions of Allāh by means of the slightest legal deception (ḥiyal).’ This is textual proof of the forbiddance of making permissible the prohibitions of Allah using deceptive legal strategems. The Prophet (ﷺ) mentioned the slightest of deptive legal strategems; because the woman that is divorced by her husband three times, for example, is forbidden to him. So, from the easiest of legal deceptions for us is that some of the foolish ones gives ten dirhams to someone so as to borrow him to merely merely mount this woman [in order to make her permissible to her previous husband who divorced her with three talāqs] — this is in opposition to the way of Sharīʿah Law which demands a willing and desirous marriage. A desirous and willing subsequent marriage [to another man] would make it very difficult for her to ever return to him because it is quite possible that he will not divorce her. Rather, that the one who divorced her would die first (before that happens).” (Al-Fatāwā al-Kubrā 6/34; See Jamharat al-Āhādīth 3/503-504)
Abu Khadeejah Abdul-Wahid.
