Exceptions within the oath

In the oath, the exception (al-istithna') consists of saying "if Allah wills" to keep an exit open before any breach. The sheets on this page establish its legal basis, then its four conditions: being connected to the oath, being uttered by the tongue, being intended before the oath is complete, and being audible.

Each view is reported as the source attributes it, school by school, with the cited hadiths (including the grade flagged by the sheet) and the book references at the end of each point.

The basis of the exception

The Prophet said:

Whoever swears then makes an exception has said: if Allah wills.

sahih chain, reported by Abu Dawud (3262), an-Nasa'i (3793) and Ahmad (6414)

The scholars all call it an exception, and as soon as he excepts from his oath, he has not broken it. The origin is the words: "whoever swears then says: if Allah wills, has not broken it", reported by at-Tirmidhi; and Abu Dawud: "whoever swears then makes an exception, if he wills he returns and if he wills he leaves". For saying "I will do it if Allah wills" conveys that what Allah wills happens and what He does not will does not happen (al-Mughni 9/412). Ibn Rushd: they agreed that the exception as such has an effect in dissolving oaths, and differed over the conditions of the exception that earns this ruling, after agreeing that three conditions combined, harmony with the oath, utterance and intention from the outset, prevent the oath from attaching; they differed over these three points: separation between the exception and the oath, intention without utterance, and intention occurring after the oath despite harmony (Bidayat al-Mujtahid 1/301). The jurists lay down several conditions of validity, detailed below.

First condition: being connected to the oath

The jurists of the four schools, Hanafis, Malikis, Shafi'is and Hanbalis (school), require the exception to be connected to the oath: no speech of a third party between the two, no pause within which he could speak; a pause to catch his breath, for hoarseness, weariness or thirst does not prevent the validity of the exception nor the obtaining of its ruling; proof: "whoever swears then makes an exception", the exception being the sequel of the oath, like the condition and its answer, or the predicate and the restriction by "except"; once the swearer has fallen silent, the ruling of his oath is established and it has become binding, and it can no longer be averted or altered. Ahmad relies on the hadith of 'Abd ar-Rahman ibn Samurah: "if you swear an oath then see something better, expiate your oath", without saying "make an exception": the exception would then not have been possible in every state; and people's usage is to separate cut-off speech from connected speech: if he says to his slave "you are free", falls silent, then says after a while "if you enter the house", the manumission stands by the first words, and entering the house is not a condition; and if he says "ten dirhams are binding on me", falls silent, then says after a while "except five", this is not an exception and the ten stand, the ruling of the speech having become established during the silence; the same applies to the exception by Allah's will (al-Hidaya 2/76, al-Ikhtiyar 4/65, al-Jawhara an-Nayyira 6/68-69, al-Ishraf 'ala nukat masa'il al-khilaf 4/283-284, Bidayat al-Mujtahid 1/302, al-Hawi al-Kabir 15/282-283, al-Bayan 10/512-513, al-Mughni 9/412-413).

Moreover, had the exception been valid long after, the expiations of oaths would fall through an exception preceding the breach (al-Hidaya 2/76 and parallel passages). Ahmad according to one path allows the exception if the separation is not long; proof is the hadith of Ibn 'Abbas: the Prophet said "by Allah, I will raid Quraysh", fell silent, then said "if Allah wills" (sahih chain: Abu Dawud 3285-3286): he made the exception after his pause; on this path, a short separation and no third-party speech are required. Ibn Qudamah reports from Ibn Abi Musa the view that the exception is valid while one remains in session, reported also from al-Hasan and 'Ata'; and per 'Ata', the time of milking a she-camel; and from Ibn 'Abbas, the exception after a while, the view of Mujahid; Ibn Qudamah rejects it for the reason already given, and any estimated duration, session or otherwise, does not work, durations belonging to the text, not to arbitrary choice (al-Mughni 9/412-413). Ibn Rushd: Malik requires connection to the oath; al-Shafi'i allows a light pause to remember, to breathe or for hoarseness; some successors allow the swearer to except as long as he has not left his session; Ibn 'Abbas allowed him the exception at any time; all agree that the exception of Allah's will regarding the sworn object, act or omission, lifts the oath, the exception being the lifting of the oath's obligation. Abu Bakr Ibn al-Mundhir: it is established that the Prophet said: "whoever swears then says: if Allah wills, has not broken it". The disagreement concerns the effect of the unconnected exception: whoever holds it a prevention of attachment requires connection, whoever holds it a dissolution of the oath does not; and among the latter, near or far: whoever holds it near relies on the report of Sa'd, from Samaak ibn Harb, from 'Ikrima: the Prophet said "by Allah, I will raid Quraysh" three times, fell silent, then said "if Allah wills": the exception therefore dissolves the oath without preventing its attachment; otherwise it would dispense from the expiation (Bidayat al-Mujtahid 1/302). The sheet adds from Ibn al-Qayyim the report of al-Jawzajani: Safwan, from 'Umar (ibn 'Abd al-'Aziz), relates that al-Awza'i was asked about a man who swears "by Allah I will do this", stays silent an hour without thinking of the exception, and a person beside him says "say: if Allah wills", which he says: al-Awza'i replied that he seems to have excepted; and the case of the man offered dirhams by his relative: "by Allah I will not take them", then the relative: "by Allah you will take them", then he repeats the same words adding "if Allah wills": al-Awza'i said he has not broken it. Ibn al-Qayyim holds this view wiser and more correct than requiring the intention from the start of the speech: it follows the authentic Sunnah, the report of Sulayman ("had he said if Allah wills after his oath when the reminder came to him, it would have benefited him"), analogy and people's interests, and the breadth of the lenient path; requiring the intention at the first word and strict connection would abolish the dispensation and deprive nearly everyone of it. Some Malikis narrowed it: the exception benefits only if its author intended it before completing the oath; likewise some Shafi'is and Ibn al-Mawwaz: its condition is simultaneity, even with the last word of the oath.

Second condition: uttering it by the tongue, not the heart

The jurists of the four schools agree that the exception must be pronounced by the tongue; the one of the heart avails nothing. al-Shafi'i, Abu Hanifah, Malik, Ahmad and all the scholars require it; it is only related from some Malikis, by analogy with Malik's saying that the exception is valid through intention alone, that the formula is not necessary. Ibn Qudamah: it is the view of the generality of the people of knowledge, al-Hasan, an-Nakha'i, Malik, ath-Thawri, al-Awza'i, al-Layth, al-Shafi'i, Ishaq, Abu Thawr, Abu Hanifah and Ibn al-Mundhir, with no opponent known; for the Prophet said "whoever swears then says: if Allah wills", speech being utterance; and the oath does not attach through intention, nor does the exception. One path from Ahmad: if he is wronged and excepts within himself, validity is hoped when he fears for himself, his oath not being attached or by way of the interpreted; not regarding others (al-Mughni 9/413). an-Nawawi: the words "whoever swears then says: if Allah wills, has not broken it" show that the exception is made by speech, intention not sufficing (al-Majmu' 8/343). The qadi 'Abd al-Wahhab: the exception is only utterance; if he intends it or forms it in his heart without pronouncing it, it does not benefit him; the origin: "whoever swears then says: if Allah wills, returns without breach", the utterance lifting the oath's ruling as the expiation does; likewise intending the manumission of his slave does not dispense from the expiation without pronouncing it (al-Ma'una 1/419, see Bidayat al-Mujtahid 1/302, at-Taj wa-l-Iklil 2/282, Sharh Mukhtasar Khalil 3/55 and 4/53-54, ash-Sharh al-Kabir with Hashiyat ad-Dasuqi 2/404 and 3/283, Tahbir al-Mukhtasar 2/464). Ibn Rushd: on the requirement of utterance by the tongue, some require any word of exception, whatever the formula, by restricting the general or limiting the absolute, this being the well-known one; others say intention without speech benefits only in "if Allah wills", not in the other words; a distinction judged weak; the origin of the disagreement is whether binding contracts attach through intention alone or through speech and intention, like divorce, manumission and the oath (Bidayat al-Mujtahid 1/302; the overall statement is reported by an-Nawawi in Sharh Sahih Muslim 11/119-120).

Third condition: intending the exception before the oath ends

The Shafi'is (most correct view), the Hanbalis (school) and some Malikis require the exception to be intended before the oath is complete: if he says "you are divorced three times, except once", the exception counts only if the intention preceded the end of the words; the oath being considered only once complete, the intention may come at the beginning, the end or the middle, without requiring the first word nor sufficing after the end (al-Bayan 10/131-132 and 513, an-Najm al-Wahhaj 7/531, Mughni al-Muhtaj 4/487, Tuhfat al-Muhtaj 9/433-434, ad-Dibaj 3/433, Sharh az-Zarkashi 3/315, al-Furu' 6/309, al-Insaf 11/27, Kashshaf al-Qina' 5/311, ar-Rawd al-Murbi' 2/383, Matalib Uli an-Nuha 5/375). Ibn Qudamah: the qadi requires intent; if the tongue outruns the intent, or habit carries the speech without intention, no validity, the oath not attaching without intent, nor the exception; the school of al-Shafi'i; some require the intent from the attachment of the oath, which contradicts the generality of the hadith: "whoever swears then says: if Allah wills, has not broken it", the words of the exception following the oath, and so does the intention (al-Mughni 9/413-414, al-Kafi 4/375-376).

The Malikis (school), the Shafi'is in the opposing view and Hanbalis such as Ibn Taymiyya and Ibn al-Qayyim hold that the intention after the end of the speech is valid. al-Mawwaq: it is the most correct, the words of the exception not requiring attachment to the last word of the oath, nor does the intention; intention alone has no effect, otherwise it would dispense from the words of the exception, which all reject (at-Taj wa-l-Iklil 2/282, Sharh Mukhtasar Khalil 3/55 and 4/53-54, ash-Sharh al-Kabir 2/404 and 3/283, Tahbir al-Mukhtasar 2/464). The qadi 'Abd al-Wahhab: intending with the attachment of the oath is not a condition, otherwise no oath would attach without prior intention, which is false; beginning without intent then intending before the end is permitted; finishing the speech then bringing the exception, connected and without delay beyond the permitted pause, is valid per Malik, not per Ibn al-Mawwaz; Malik's meaning is the generality of the hadith and treating the intention after the end like the connected intention; Ibn al-Mawwaz's meaning is that the oath ended empty of exception, what comes after availing no more than delay; the first is more correct (al-Ma'una 1/420). Shaykh al-Islam Ibn Taymiyya was asked about a man who swears divorce then excepts after a pause of the length of a possible word: he answered that neither divorce nor expiation occurs in this state, and that even if told "say: if Allah wills", it benefits him without the idea having occurred to him (Majmu' al-Fatawa 33/238). He also said: on the beneficial exception there are two views: intending it before the end of the sworn object (al-Shafi'i, the qadi Abu Ya'la and their followers), or it benefits even coming after, even on the suggestion of a bystander who tells him "say: if Allah wills", the school of Ahmad per his words, followed by the earlier ones of his companions, the choice of Abu Muhammad and others, the school of Malik, and the correct one; intent does not enter into it: habit or blessing lifts the oath's ruling; "if Allah wills it" intends His will, not His love or His command; the doubter whose habit is the exception is as if he knew he had excepted (al-Fatawa al-Kubra 4/578). Ibn al-Qayyim reports the two accounts of al-Awza'i cited above, holds this wiser and more correct than requiring the intention from the start, and concludes: Malik required nothing of the sort, al-Muwatta reporting from 'Abdallah ibn Yusuf: the finest I heard on breathing in the oath: it belongs to its author as long as he does not cut his speech and it flows straight before the pause; if he falls silent and cuts his speech, no more breathing. The sheet notes: I never saw any imam require the intention from the start or before the end, an invention of followers (I'lam al-Muwaqqi'in 4/79-80).

Fourth condition: audibility

The jurists differ: must the words of the exception be audible, or does moving the tongue suffice? The Hanafis have two views:

• audibility is a condition; if he moves his tongue without hearing, no validity, the view of al-Hinduwani, favored by al-Kasani and the author of ad-Durr;
• it is not, the view of al-Karkhi held correct: if he moves his tongue with the exception, it is valid without hearing.

'Ala' ad-Din as-Samarqandi: if he moves his tongue and pronounces the letters without hearing himself, it is an exception, for it is speech and hearing is not the condition: the deaf person's exception is valid though he does not hear himself (Tuhfat al-Fuqaha 2/193). al-Kasani nevertheless writes in Bada'i' that hearing is not a condition since it is speech and the deaf person's exception is valid; then he argues the opposite thesis: assembled letters point to speech without realizing it without sound, so without sound there is no speech nor referral, may Allah grant success (Bada'i' as-Sana'i' 3/155, al-Muhit al-Burhani 3/536). ad-Durr al-Mukhtar: audible to the point that bringing an ear close to his mouth one would hear, the deaf person's exception remaining valid; Ibn Abidin clarifies that this requirement is al-Hinduwani's, held correct in Bada'i', al-Karkhi not making it a condition, and that the audible is what lends itself to hearing even if its author does not hear it, under noise for instance (ad-Durr al-Mukhtar with Hashiyat Ibn Abidin 3/368, al-Ikhtiyar 3/176, al-Fatawa al-Hindiyya 1/460).

The Malikis: utterance by moving the tongue is required, self-hearing is not: mouthing with the lips without hearing oneself suffices, loudness not being required; mere thought avails nothing (at-Taj wa-l-Iklil 2/283, Sharh Mukhtasar Khalil 3/55-56, Sharh az-Zarqani 3/96, ash-Sharh al-Kabir with Hashiyat ad-Dasuqi 2/404, Tahbir al-Mukhtasar 2/364, Hashiyat as-Sawi 4/178). The Shafi'is: he must articulate to the point of hearing himself if his hearing is sound and unimpaired, otherwise refused; Ibn Hajar al-Haytami repeats it, and ash-Shirwani reports from al-Anwar that the fifth condition is that another hear it (Tuhfat al-Muhtaj with Hashiyat ash-Shirwani 9/436, Nihayat al-Muhtaj 6/538, ad-Dibaj 3/433). Ibn al-Qayyim raises the question among the Hanbalis: must one hear oneself, or does moving the tongue with the exception suffice, even without hearing it? the sheet stops at the exposition of Ahmad's companions. Ibn Rushd adds: an intention arising after the oath, the exception of a number requires the intention only before uttering the oath, that of the general or the absolute tolerates it after if the utterance of the exception is connected to that of the oath; the cause is whether the exception prevents attachment or dissolves it; 'Abd al-Wahhab rejects requiring the intention at the start and holds the exception a dissolution of the oath, like the expiation (Bidayat al-Mujtahid 1/302). Ibn al-Qayyim concludes: I never saw any imam require the intention from the start or before the end, an invention of followers (I'lam al-Muwaqqi'in 4/79-80).

Practical note

In practice, the precaution that spares every disagreement is simple: say "if Allah wills" immediately after the oath, by the tongue, in a voice at least murmured; if forgotten, add it without breaking the flow of speech; and if the oath is already broken, pay the expiation of the oath.