“The Fourth Stratagem”

This legal stratagem likewise seeks to invalidate the divorce invoked in the oath, but through the presence of an impediment rather than the absence of a condition.

Abū al-ʿAbbās ibn Surayj and a group after him believed that if a man says to his wife, “If my divorce takes effect against you, and if I divorce you, you are divorced three times beforehand,” no divorce can ever take effect against her thereafter. For if the immediate divorce takes effect, the conditional divorce must take effect; yet if the conditional divorce takes effect, it prevents the immediate divorce from taking effect. Its taking effect would thus entail its not taking effect, so it does not take effect.

The general body of Muslim jurists, however, from all schools, rejected this. Indeed, they regarded it as one of those errors that are self-evidently no part of Islam. For it is known as a self-evident teaching of the religion of Muhammad ibn ʿAbd Allāh, may Allah bless him and grant him peace, that divorce is legally sanctioned in every marriage, and that there is no marriage in which divorce is impossible.

Their error arose from regarding this formula as valid. They therefore said, “If the immediate divorce takes effect, the conditional divorce takes effect.” But this formula is not valid, for it entails a divorce taking effect after three preceding divorces, which is impossible under Islamic law. A formula entailing this is therefore invalid. Since it is invalid, the immediate divorce taking effect does not entail the conditional divorce taking effect: that consequence follows only if the conditional stipulation is valid.

They then differed: does the conditional divorce take effect to complete the total of three, or is the conditional stipulation void, so that only the immediate divorce takes effect? These are two positions within the schools of al-Shāfiʿī, Ahmad, and others.

I do not know whether Ibn Surayj devised this formulation as a stratagem to prevent divorce from taking effect, or whether he proposed it simply by consistently applying an analogy he believed valid, and those after him then used it as a stratagem. But I have seen