Islamic Fiqh > Marriage and family > The pillars and conditions of nikah > The two explicit formulas by consensus
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Updated on 27 September 2026 at 3:52 AM
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The siyaqaha is the formula of the marriage contract: the exact words by which the marital bond is concluded. Jurists examined every word that might be pronounced: the explicit terms of marriage, indicative formulas such as the gift or the sale, formulas with no effect, pronunciation errors, the language used, the grammatical tense, unity of the session, immediacy of the reply and suspension to a condition.
This page sets out, position by position, what the Hanafis, Malikis, Shafi'is and Hanbalis teach, with the arguments of the Quran, the Sunna and the references given in the source sheets.
The marriage is certainly concluded with the two explicit terms: the term of marriage (nikah) and the term of marrying off (tazwij), together with the reply to either one. Imam Ibn Qudamah writes: the marriage is concluded by the formula of marriage (inkah) and the formula of marrying off (tazwij), and by the reply to either, by consensus; these are the two words with which Revelation came, as in "We married her to you" (Surah al-Ahzab 37) and in the word of Allah:
And do not marry the women whom your fathers married before.
Surah an-Nisa 22
It makes no difference whether the two parties use matching or different formulas: the guardian says "zawwajtuka ibnati hadhihi" (I marry my daughter to you) and the groom replies "qabiltu hadha n-nikah" or "qabiltu hadha t-tazwij" (I accept this marriage) (al-Mughni 7/60; see also Bada'i' as-Sana'i' 2/229, al-Ikhtiyar 3/102, Kashshaf al-Qina' 5/38).
The jurists then debated the marriage: is it concluded by the word of the gift (hiba), of sale (bay'), of the dower (sadaqa) or of transfer of ownership (tamlik) in general? Or is it valid only through the formula of marriage or of marrying off?
The Hanafis validate the marriage by any word that implies a transfer of ownership in perpetuity, with no time limit. Malik allows it through any word by which the two spouses understand the intended purpose. The Shafi'is and the Hanbalis, within the school, hold that it is concluded only by the term of marrying off and that of marriage, for these are the only two mentioned in the Quran.
Ibn Taymiyyah and other scholars hold that the marriage is concluded by any word conveying its meaning, since no text of the Quran, the Sunna or the sayings of the Companions establishes that it is concluded only by specific terms.
The Shafi'is and the Hanbalis, within the school, judge that the marriage is not concluded by the word of the gift, but only by the formulas of marriage and of marrying off, or by what derives from them. Their first argument is the word of Allah about the woman who offers herself to the Prophet (peace be upon him):
And any believing woman who offers herself to the Prophet, if the Prophet wishes to marry her: this is for you alone, to the exclusion of the believers.
Surah al-Ahzab 50
The gift as a formula of marriage remains exclusive to the Messenger of Allah (peace be upon him), and no one else equals him. Next, the word of the gift serves to conclude other contracts, such as hire (ijara), permission (ibaha) or legalization (ihlal): the marriage is therefore not concluded by it. It is not explicit in the marriage: yet the testimony of the two witnesses is a condition of the contract, and an indicative formula is known only through the intention, on which testimony is impossible since the witnesses have no access to it; the contract therefore cannot be concluded through it.
The Prophet (peace be upon him) said:
Fear Allah concerning women: you have taken them as a trust from Allah and you have made lawful their private parts by the word of Allah.
reported by Muslim (1218)
Now the word by which Allah made these lawful in His Book is only the formula of marriage and of marrying off: "So marry the women who please you" (Surah an-Nisa 3), "Marry the single ones among you" (Surah an-Nur 32), "When Zayd had ended his relation with her, We married her to you" (Surah al-Ahzab 37). No other term appears in the Quran: one must therefore stop at these two terms, out of worship and precaution. The marriage indeed leans toward acts of worship, because of the encouragement surrounding it, and the formulas of acts of worship are received from the Law, which came only with these two terms.
Another argument: the primary ruling of the marriage is the forming of a couple (azduwaj), and ownership enters it only as a means. The marriage must therefore remain reserved for a word indicating the forming of a couple, namely the two terms of marrying off and of marriage, and nothing else. The word of the gift implies no counterparty, while the marriage is never without a counterparty (the dower).
The Hanafis and the Malikis (with the detail that follows in their school) teach that the marriage is valid and is concluded by the word of the gift: it is a transfer of ownership, and the gift is a transfer of ownership. In the Sahih of al-Bukhari, from Abu Hazim, Sahl relates that a woman came to the Prophet (peace be upon him) and said: "I have come to give myself to you. She stood for a long time; a man said: "Marry her to me if you have no need of her. The Prophet asked: "Do you have anything for her dower?
He replied: "No. "Go and look. He returned: "By Allah, I found nothing. "Go and search, even for a ring of iron.
He returned: "No, by Allah, not even a ring of iron. He owned only an izar (a cloth worn on the lower body) with no cloak. He said: "I offer my izar as her dower. The Prophet replied that this izar would suit neither of them if he wore it, then saw the man turning away, had him called back and asked: "How much of the Quran do you know?
The man named some surahs. The Prophet said: "I make her yours through what you have of the Quran."
The Prophet (peace be upon him) said: "I make her yours through what you have of the Quran."
reported by al-Bukhari (5533)
This hadith is an explicit text (nass). The gift is moreover the word by which the marriage of the Prophet (peace be upon him) himself was concluded, since Allah mentioned the believing woman who gives herself: the marriage of his community is therefore concluded by it, just as by the two terms of marriage. The gift can moreover be taken in a metaphorical sense: it must therefore be validated, as divorce pronounced through indicative formulas is validated. It is finally a word of transfer of ownership that implies no time limit: it resembles the terms of marriage; and the marriage is a contract of exchange, which may be concluded by more than two formulas, like sale.
The Hanafis add: the marriage of the Messenger of Allah (peace be upon him) was concluded by the formula of the gift in the word of Allah "any believing woman who offers herself to the Prophet" (Surah al-Ahzab 50): the marriage of his community is therefore concluded by this word. The proof drawn from this description is strengthened by the coordination with "O Prophet, We have made lawful for you your wives" (Surah al-Ahzab 50): Allah informs that the believing woman who gives herself is lawful for the Prophet at the moment he wishes to marry her, and what is instituted for the Prophet holds for his community, as long as no proof of exclusivity arises.
al-Kasani reports the following objection: the restriction "this is for you alone, to the exclusion of the believers" seems to be precisely that proof of exclusivity. The answer: this restriction aims at the absence of reward, that is, of a dower; the exclusivity concerns the wage, not the word of the gift. Three indications show it. The first: the verse that follows immediately, "We know what We imposed upon them concerning their wives" (Surah al-Ahzab 50), shows that the exclusivity of that woman lay in a marriage without an imposed dower.
The second: "so that no hardship weighs upon you", whereas the hardship cannot come from the formula itself, but from the payment of a counterparty. The third: the verse expresses a grace granted to the Prophet and to his community within the word of the gift, which is not that of marrying off: the exclusivity therefore concerns what came to him without a dower.
The Hanafis also answer the argument from "silence": from this angle, lawfulness through the word of Allah does not contradict lawfulness through other words, and the silence of the text about them cannot be used against them, for every formula made a sign of a legal ruling is the word of Allah, the Lawgiver being Allah Himself, as in "and were it not for a word that had already gone forth from your Lord" (Surah Taha 129); the word is ascribed to Allah in the sense that He, the Lawgiver, made the formula the cause of the ruling being established (Bada'i' as-Sana'i' 2/230). Moreover, a man gave his daughter in gift to 'Ubayd Allah ibn 'Abd al-Haqq with two witnesses, and 'Ali (may Allah be pleased with him) validated that contract (Mukhtasar al-Wiqaya 1/344). Finally, the word of the gift indicates an ownership: it is the cause of the ownership of the benefit through the ownership over the body, as in marriage with a slave woman; and causality is one of the paths of metaphorical meaning (al-Ikhtiyar 3/103; al-Jawhara an-Nayyira 4/292).
Among the Malikis, the marriage is concluded if the formula of the gift comes from the woman's guardian with the dower named: "wahabtu laka ibnati bi-sadaqin qadruhu kadha" (I give you my daughter with a dower of such an amount), or by delegation: "wahabtuha laka tafwidan" (I give her to you, delegating the dower to you). If he does not name a dower, the marriage is not concluded according to the most widespread view; it has also been said that it is valid. And if we said "from the guardian", it is because the gift a woman makes of herself is disputed.
Ibn 'Abd al-Barr writes: the scholars agreed that the marriage is concluded neither by the formula of legalization nor by that of permission; the word of the gift should follow the same logic. Yet Malik's view varied: he said at one point that the marriage is concluded by the gift if they intend the marriage and delegate the dower, and Ibn al-Qasim reported this choice of his (al-Taj wa-l-Iklil 2/489; Mawahib al-Jalil 5/50).
Ibn Taymiyyah: the marriage is concluded by whatever people count as marriage, in any language, formula and act; the same applies to every contract, and a condition between people is what they count as a condition (al-Fatawa al-Kubra 4/529). He adds: the view of most scholars is that the marriage is concluded without the terms of marriage and of marrying off; this is transmitted from Imam Ahmad, and it is the reasoning of his school; the early ones among his companions followed it. Ahmad stated elsewhere that the formula "ja'altu 'itqaki sadaqaki" (I make your manumission your dower) concludes the marriage, although it contains neither marriage nor marrying off. The first of Ahmad's companions, to his knowledge, to restrict the contract to those two terms was Ibn Hamid; the qadi and those who came after him followed him, because of the spread of his books and the great number of his disciples and successors (al-Insaf 8/45; Matalib uli n-nuha 5/47).
Ibn 'Abd al-Hadi (a Hanbali) reports from his shaykh Abu l-'Abbas: the soundest view of the scholars is that the marriage is concluded by any word indicating it; this is the school of the majority, such as Abu Hanifah and Malik, and one of the two positions in the school of Ahmad; their own texts point only in this direction. The other position, the restriction to the two terms, is that of Abu 'Abd Allah Ibn Hamid and his followers. Yet the early companions of Ahmad and most of them did not say this, and Ahmad explicitly stated that the formula "a'taqtu amati wa ja'altu 'itqaha sadaqaha" (I manumitted my slave woman and made her manumission her dower) concludes the marriage. According to his principles, contracts are concluded by whatever indicates their purpose, in word or in act: he does not therefore restrict contracts to specific formulas.
Ibn Taymiyyah further clarifies the meaning of "the word of Allah" in the hadith: some people thought it referred to the formula "I have married you and I marry you", but these are the words of creatures, created words; the word of Allah is not created. His word is what He spoke with: His Law, His authorization and His permission in the matter.
al-Hafiz Ibn Hajar al-'Asqalani concludes: the majority of the scholars, the Hanafis, the Malikis, and one of the two narrations from Ahmad (whose texts point mostly in this direction, the preference there being debated), teach that the marriage is concluded by any word indicating it. Ibn Hamid and his followers chose the other narration, matching the Shafi'is. Ibn 'Aqil, among them, defended the first narration with the hadith "He manumitted Safiyyah and made her manumission her dower": Ahmad explicitly stated that whoever says "I manumitted my slave woman and made her manumission her dower" concludes her marriage by it; those who follow the second narration would require saying "tazawwajtuha" (I married her), an addition beyond the report and beyond the text of Ahmad; and his principles attest that contracts are concluded by whatever indicates their purpose, in word or in act (Fath al-Bari 9/215).
The Hanafis and most Malikis, such as Ibn al-Qassar, qadi 'Abd al-Wahhab, al-Baji and Ibn al-'Arabi, judge that the marriage is valid and is concluded by the word of sale: it is a word implying a perpetual transfer of ownership, with no time limit. The guardian says "bi'tu laka ibnati bi-sadaqin qadruhu kadha" (I sell you my daughter for a dower of such an amount) or "bi'tuka ibnati bi-kadha" (I sell you my daughter for such a price); among the Hanafis the woman may even say "bi'tu nafsi minka" (I sell myself to you). Sale is a transfer of ownership, and the Prophet (peace be upon him) said to the man of the previous account: "I make her yours through what you have of the Quran" (al-Bukhari 5533): an explicit text. The same arguments of metaphorical meaning, absence of a time limit and contract of exchange apply.
Is the marriage also concluded by the word of purchase, if the man says "ishtaraytuki bi-kadha" (I buy you for such a price) and she replies yes? The sound position is that it is concluded so among the Hanafis (Bada'i' as-Sana'i' 2/230; Hashiyat Ibn 'Abidin 3/18).
Among the Hanafis, the indicative formulas (the gift, the sale, the purchase, the dower and the transfer of ownership) require the intention, or an indication from the context. az-Zayla'i does not condition the intention when the dower is named, and as-Sarakhsi not at all. The chosen view requires in any case that the witnesses understand the purpose: if the context does not show that the speaker intends the marriage, the witnesses must be informed of his intention; and if nothing indicates it, informing the witnesses remains necessary even with the intention, since they must understand.
In summary: the indicative formulas of the marriage require the intention together with an indication, or the affirmation of the one who accepts the offer, or the witnesses' understanding of the purpose, or informing them of it (Sharh Fath al-Qadir 3/195; Hashiyat Ibn 'Abidin 3/18).
The Malikis according to the view favored by Ibn Rushd and others, as well as the Shafi'is and the Hanbalis within the school, judge that the marriage is not concluded by the word of sale, but only by the two terms of marriage and what derives from them: sale serves to conclude other contracts such as hire, permission and legalization; it is not explicit in the marriage; yet testimony is a condition, and an indicative formula is known only through the intention, on which the witnesses cannot testify (see above the hadith of Muslim 1218 and the verses mentioning only the two terms).
The same disagreement recurs. The Hanafis and most Malikis validate the marriage by the word of transfer of ownership, as when the guardian says "mallaktuka ibnati" (I have transferred ownership of my daughter to you). The proof is the word of the Prophet (peace be upon him): "I make her yours through what you have of the Quran" (al-Bukhari 5533): an explicit text. Added to this are the possible metaphorical meaning, the absence of a time limit, and the Hanafi foundation: the marriage is concluded by any word through which a perpetual transfer of ownership takes place in this world (Bada'i' as-Sana'i' 2/230; Mukhtasar al-Wiqaya 1/344; al-Ikhtiyar 3/103).
The Malikis according to the view favored by Ibn Rushd, and the Shafi'is and the Hanbalis within the school, reject this formula for the same reasons as sale: a word used for other contracts such as hire, permission and legalization; lack of explicitness in the marriage; the impossibility of testifying about a formula known only through the intention. The hadith "Fear Allah concerning women..." (Muslim 1218), the verses mentioning only the two terms, and the fact that the primary ruling of the marriage is the forming of a couple support their position.
The Hanafis and the Malikis within their school (the view of most of them) teach that the marriage is concluded by the word of the dower: the marriage is concluded by any word of perpetual transfer of ownership in this world; the formula admits a metaphorical reading and must therefore be validated as divorce through indicative formulas is; and it is a word of transfer of ownership with no time limit, resembling the terms of marriage (Bada'i' as-Sana'i' 2/230).
The Malikis according to the view favored by Ibn Rushd, and the Shafi'is and the Hanbalis within the school, reject it: the dower is not explicit in the marriage; yet testimony is a condition, and an indicative formula is known only through the intention. The hadith "Fear Allah concerning women..." (Muslim 1218), the verses where the Quran mentions only the two terms of marriage (Surah an-Nisa 3, Surah an-Nur 32, Surah al-Ahzab 37), and the fact that the primary ruling of the marriage is the forming of a couple, ownership being only a means, serve as arguments.
In summary: these formulas (the gift, the sale, the transfer of ownership, the dower) are indicative formulas that, among the Hanafis, require the intention or an indication, or the affirmation of the one who accepts and the witnesses' understanding of the purpose, or informing them of it (Sharh Fath al-Qadir 3/195; Hashiyat Ibn 'Abidin 3/18).
The marriage is not concluded, in the view of the generality of jurists, either by the formula of legalization (ihlal) or by that of permission (ibaha). Ibn 'Abd al-Barr writes: they agreed on this point (al-Taj wa-l-Iklil 2/489; Mawahib al-Jalil 5/50).
It is also not concluded by the word of hire (ijara) nor by that of bequest (wasiyya) in the view of the generality of jurists. Among the Shafi'is and the Hanbalis the matter is clear: for them the marriage is concluded only by the two terms of marriage. Among the Hanafis, who validate any word of perpetual transfer of ownership in this world, hire, although it occurs during life, is not perpetual, and a bequest takes effect only after death: the marriage is therefore not concluded by them.
al-Kasani writes: the marriage is not concluded by the word of hire according to most of our shaykhs. Their foundation: the marriage is concluded only by a word coined for the transfer of ownership of the body. Thus Ibn Rustam reported from Muhammad: every word that, in the language, expresses a transfer of ownership of the body constitutes a marriage over the free woman.
It is reported from al-Karkhi that he validates hire: Allah named the dower a "wage" ("Give them their wage", Surah an-Nisa 24), and there is no wage except through hire; if hire were not a marriage, the dower would not be a wage. The argument of the majority: hire is a temporary contract, the proof being that making it perpetual annuls it, while the marriage is a perpetual contract, the proof being that limiting it in time annuls it; concluding a contract by a word carrying the prevention of its own conclusion is impossible. Hire moreover transfers a benefit, while the benefits of the private parts follow the rule of the bodies themselves: how could ownership of the body be established through the transfer of a benefit?
The marriage is also not concluded by the word of the loan for use (i'ara): if the loan for use is a permission to benefit, the marriage is not concluded by the word of permission, since there is no transfer of ownership at all in it; if it is a transfer of benefit, the marriage is concluded only by a word coined for the transfer of ownership of the body, and none exists.
The shaykhs debated the word of the loan (qard): some say it does not conclude, since it belongs to the loan for use; others say it concludes, since ownership of the object passes to the borrower, the borrowed object becoming his property.
The disagreement also exists for the word of salam (sale with deferred delivery): some say it does not conclude, since salam over an animal is not valid; others say it concludes, since it transfers ownership of the body, and salam over an animal is concluded among us, to the point that if taking possession attaches to it, the ownership is counted as an ownership marred by corruption; yet not everything that corrupts the sale corrupts the marriage.
The disagreement exists further for the word of exchange of currencies (sarf): some say it does not conclude, since it was coined to establish ownership over dirhams and dinars, which are not determined by specification, while the object of the marriage is determined by specification; others say it concludes, since it establishes ownership of the object in bulk.
As for the bequest, it does not conclude according to most of the Hanafi shaykhs: the bequest is a transfer of ownership postponed to after death, and a marriage postponed to a future moment is not valid. It is nevertheless reported from at-Tahawi that it concludes, since it establishes ownership of the body in bulk; and Abu 'Abd Allah al-Basri reported from al-Karkhi that if the bequest is tied to the present, as in "awsaytu laka bi-ibnati hadhihi al-'an" (I bequeath to you this daughter, now), the marriage is concluded: tied to the present, the word becomes a metaphor for transfer of ownership.
Legalization and permission do not conclude either, since they indicate no ownership at all: consider the one to whom food has been made lawful: he takes it under the rule of the permitter's ownership, to the point of holding the right of interdiction and prevention.
The marriage is also not concluded by the word of mut'a (temporary enjoyment): that word was not coined for transfer of ownership, and the mut'a marriage is an annulled contract.
If the gift is annexed to the slave woman, for example "wahabtu hadhihi l-amata minka" (I give you this slave woman), and the context shows the marriage through the presence of witnesses and the naming of a deferred dower, the question follows the regime of the indicative formulas examined above.
Before these cases, recall the status of the acceptance: the jurists debated whether it is valid through words other than those of marriage, such as the gift, the sale, the dower or the transfer of ownership. The Hanafis and the Malikis (according to their sound position) admit it; the Shafi'is and the Hanbalis admit only the formula of marriage or of marrying off. There remain situations frequent among people, which must be explained.
First situation: an error in the formula of marriage or of marrying off, such as saying "jawwaztuka ibnati" (I permitted, with a j in place of the z). If one said "jawwaztuka ibnati" or "qabiltu tajwizaha" while deliberately playing with the letters, the contract is not valid. But if the error comes from lack of knowledge, or if it is the custom of a people, the sound position of the scholars is that the marriage is valid.
The Hanafis: the marriage is not concluded through distorted words, such as "tajawwaztu" with a j in place of the z instead of "tazawwajtu", as some common people do in certain lands by mistake; the formula is neither literal nor metaphorical for lack of relation to the meaning, it is merely a slip with no effect. But if a people agree to pronounce this error while deliberately wanting to indicate by it the lawfulness of the relationship, with intention and choice, concluding the marriage by it has a visible case: it then amounts to a new assignment of the meaning to the word. This is how shaykh al-Islam Abu l-Su'ud, mufti of the lands of Rum, ruled, for peoples whose usage carries this fault. The mere utterance of the word without aiming at that new assignment, as some ignorant people do, has no effect: using a word for the meaning assigned to it, to it or to another, means seeking its indication and intending it; mere mention is not valid usage, hence no new assignment.
Ibn 'Abidin summarizes the author's statement: if people agree to use this distorted formula in the marriage as a deliberate new assignment, like improvised customary realities or foreign words coined for marriage, the contract is valid through it, since they deliberately ask the word to indicate the intended meaning. Otherwise, the bare mention without this is neither literal, for lack of assignment, nor metaphorical, for lack of relation, and the contract is not concluded: it is only a mistake, as the author ruled following his shaykh Ibn Nujaym and his contemporaries. But the scholar al-Khayr al-Ramli ruled the opposite in the Fatawa al-Khayriyya, contested the evidence cited and objected that the literal-metaphorical debate, based on absence of relation, has no place here, since the author himself admits it is a distortion of one letter: if it comes from a knowledgeable man, the contract is not concluded, which is the view of Zayn ibn Nujaym and his contemporaries. This question moreover finds no early transmission specifically from the shaykhs: it arose from recent fatwas.
The Shafi'is explicitly stated that in a common man, substituting z with j or j with z does no harm, even though they are strict, admitting the marriage only through the two terms. If asked whether the marriage is concluded by the distorted formula in general, the mufti answers "no", since the case of distortion is not raised and its default is absence; but if asked about a common man who distorted without knowing the correct word, intending by it lawfulness through the formula that came in the Law, the contract is valid; even more so if the usage of his people agrees on this fault, as Abu l-Su'ud decided.
The scholars have moreover explicitly disregarded error and distortion in other fields: divorce takes place through distorted words, such as "alayya t-talaq" (divorce falls upon me) pronounced wrongly, or "at-talaq yalzumni la af'al kadha" (divorce obliges me not to do this), although it is a glaring error in the language and in the Law, the word having neither pillar nor meaning, and the man not being qualified to pronounce divorce. Abu l-Su'ud answers that this divorce is neither explicit nor metaphorical when viewed as bare utterance, but through actual usage; yet that usage does not exist in his land. If we disregard this glaring error, we must a fortiori disregard that of the formulas of marriage, whose usage is widespread and turns on the tongues of the people of the villages and towns, to the point that if the correct formula were recited to them, they would struggle to pronounce it: they intend no metaphor, it is a distortion widespread on their tongues.
Some shaykhs even held that the prayer is not annulled by the substitution of a few letters, although the articulation points drift apart, in consideration of the hardship of common people: all the more so in our subject.
In al-Bahr: divorce takes place through these distorted words (such as "talakh", "talakin", "talagh"), yet it is not confirmed unless the man testifies before speaking: "my wife demands divorce from me and I do not grant it, this is why I say it"; with no difference between the scholar and the ignorant, and on this the fatwa stands. No difference then appears between the marriage and the divorce: al-Khayr al-Ramli supported this by the word of qadi Khan: the marriage and manumission do not require knowledge of the meaning, since knowledge of the content of the word is required only because of the intention; in what counts alike in earnest and in jest it is not required. Since divorce takes place despite the distortion, the marriage must likewise produce its effect.
The commentator summarizes: the occurrence of divorce through these words is a precaution concerning the private parts, a shared obligation; yet there is no precaution that consists in breaking the bond once the marital status has been realized by the mere utterance of a distorted, meaningless word; the precaution is rather to keep the marriage until something removing it occurs. Had the scholars not taken into account the intention behind the distorted word, with no new assignment and no relation, they would not have made divorce occur through it, since an error outside the literal and the metaphorical is empty of meaning: they therefore considered the meaning actually intended, not the distortion of the word. Their wording "it occurs unconditionally" indicates that the divorce takes effect even if the man says "I did not intend the divorce"; this is why they tied its confirmation to prior testimony. A fortiori, if a common man says "jawwaztu" with a j or "zawwaztu" with a z in place of the j, intending the meaning of marriage, the contract is valid.
This is supported by adh-Dhakhira: "ja'altu bintika laki bi-alf" (I have assigned my daughter to you for a thousand) is valid, for it conveyed the meaning of marriage, and in contracts consideration goes to meanings rather than to words. Every formula that conveys the meaning of marriage receives its ruling when it uses a word of marriage, of marrying off, or coined for the immediate transfer of the body; and the two contractors and the witnesses understand from "jawwaztu" or "zawwaztu" nothing but marrying off: that is the only intended meaning according to usage. The scholars moreover stated that the speech of every contractor is understood according to his own usage. Divorce therefore takes place through distorted words even from a scholar, even if these words are not customary; and the marriage of the common man through the customary distortion is valid a fortiori.
And Allah knows best.
Note: it follows from what precedes that the contract is valid through the formula "azwajtu" with an initial hamza, contrary to what Abu l-Su'ud said in Hashiyat Miskin from his shaykh: he denied it because he did not find this word in the books of the language, and so counted it as distortion and error (Hashiyat Ibn 'Abidin on ad-Durr al-Mukhtar 3/19-21; Majma' al-Anhar 1/471-472).
Among the Shafi'is, al-Ghazali writes in his fatwas: "zawwajtuka" like "zawwajtu laka" or "ilayka" is valid, since an error in the formula, when it does not destroy the meaning, should be treated like an error of declension. Likewise "jawwaztuka" and its like, or substituting the k with a hamza, as some later scholars ruled (Mughni l-Muhtaj 4/235). al-Qalyubi adds: substituting j with z or the reverse, the k with a hamza, adding a hamza as in "azwajtuka", dropping the hamza in "ankahtuka", the faulty vowel of the speaker's letter or of the addressee's letter, and any other such slip, have no effect, whether the man is a commoner or not, whether it is his language or not, according to the position adopted by our shaykh following al-Ramli. But if a word is known to contradict the intended meaning and the speaker intends it nonetheless, the contract is not valid.
Among the Hanbalis, the offer is valid through "zuwwijta" well vocalized, since the intended meaning is obtained; not through "jawwaztuka". Shaykh Taqi d-Din was asked about a man who could only say "qabiltu tajwizaha" with the j: he answered with validity, citing "jawzati taliq" (my permit from you is divorce), which does trigger divorce. al-Buhuti: if the guardian says to the groom "zawwajtaka muwalliti fulana" with the faulty vowel, out of incapacity or ignorance of the Arabic language, the marriage is valid; it is not valid if it comes from a man mastering Arabic and able to correct it. The commentary on al-Muntaha clarifies that this is the apparent meaning; al-Muwaffaq (Ibn Qudamah) ruled validity without restriction; Ibn Abi l-Fahm paused over the question; both views appear in al-Muntaha.
Likewise if the husband says "qabiltu" with the faulty vowel (Kashshaf al-Qina' 5/38-41; al-Insaf 8/46; Sharh Muntaha al-Iradat 5/119; Matalib uli n-nuha 5/48).
Second question: must the husband say "qabiltu nikahaha" (I accept her marriage), or do "qabiltu" (I accept) or "raditu" (I am content) suffice? The Malikis, the Hanbalis and the Shafi'is according to one view teach that nothing obliges naming the marriage: "qabiltu" suffices, since the acceptance refers to what the guardian offered, as if the word were repeated.
Among the Malikis: if the guardian says "ankahtuka" or "zawwajtuka" and the like, it suffices for the husband to say "qabiltu", "raditu", "ikhtartu" (I chose) and anything indicating acceptance; he is not required to say "qabiltu nikahaha", "qabiltu" suffices (Mawahib al-Jalil 5/52; al-Taj wa-l-Iklil 2/489; Sharh Mukhtasar Khalil 3/173; al-Sharh al-Kabir 3/14).
Among the Hanbalis, the acceptance is valid through: "qabiltu tazwijaha", "qabiltu nikahaha", "qabiltu hadha t-tazwij", "qabiltu hadha n-nikah", "tazawwajtuha", "raditu hadha n-nikah", "qabiltu", "tazawwajtu": all of this is explicit in the reply, and the marriage is concluded by it as by the sale.
If the suitor says to the guardian "a-zawwajta? (do you undertake to marry me?) and the guardian replies "na'am" (yes), the marriage is concluded; likewise if the suitor says to the husband "a-qabilta? and he replies "na'am": the meaning is "yes, I marry you", "yes, I accept this marriage", for the question is implied in the reply. Allah says: "Do you find true what your Lord promised?
They said: yes" (Surah al-An'am 115). Likewise, if a man is told "You owe a thousand dirhams" and he replies "yes", it is an explicit acknowledgement needing no intention and which he cannot retract; and it is in the same way that the thief's hand is cut off, even though the fixed punishments are averted by doubt: the marriage must therefore be concluded by this "yes".
Among the Shafi'is within the school, the marriage is not valid until the husband says "qabiltu nikahaha" or "qabiltu tazwijaha": if the guardian says "zawwajtuka" and he replies "I have accepted" or "I am content" and the like, nothing has occurred, since neither of the two terms of marriage was uttered; and since the marriage is not concluded through indicative formulas, each of the two halves of the contract must mention it, the two agreeing on it.
If the husband says "qabiltu n-nikah" or "qabiltu t-tazwij" or "qabiltuha" (I accept her), the text of al-Umm establishes validity for the first two and invalidity for "qabiltuha", and shaykh Abu Hamid and others followed. Matching words between the guardian and the husband are not required: if the guardian says "zawwajtuka" and the husband "qabiltu nikahaha", the marriage is valid.
The husband's words "tazawwajtu" (I marry) or "nikahtu" are not an acceptance proper: they stand in for it if the pronoun is attached ("tazawwajtuha", I marry her); if he confines himself to "tazawwajtu" or "nikahtu", it does not suffice, even if his speech conveys it.
Among the Shafi'is according to another view, if the husband says only "qabiltu", the marriage is valid, since the acceptance refers to what the guardian offered, as if the word were repeated. If an intermediary says to the guardian "zawwajtaha hadha" (marry her to this one), then says to the husband "qabilta nikahaha" and he replies "qabiltuhu", the marriage is valid; if he replies only "qabiltu", it is not (Rawdat at-Talibin 4/677; an-Najm al-Wahaj 7/51; Mughni l-Muhtaj 4/235; Tuhfat al-Muhtaj 8/545; ad-Dibaj 3/184).
Third question. The offer (ijab) and the acceptance (qabul) are a pillar on which the validity of the marriage depends, with the formulas each school requires. In the majority view, Malikis, Shafi'is and Hanbalis, the offer is what comes from the wife's guardian, and the acceptance what comes from the husband or his agent. Among the Hanafis, the offer is what comes first, whether the husband's speech or that of the wife or her guardian, and the acceptance is what comes after: thus the husband who says "zawwijni" (marry me) or "tazawwajtu bintaka" (I marry your daughter) makes an offer, and if the guardian or the wife replies "qabiltu", the marriage is concluded (Sharh Fath al-Qadir 3/190; al-Bahr ar-Ra'iq 3/87; Hashiyat Ibn 'Abidin 3/9-10).
The majority of the jurists, Hanafis, Malikis and Shafi'is, validate the acceptance preceding the offer: the offer and the acceptance both exist, so the contract is valid as if the offer had come first. If the husband says "zawwijni bintaka" or "ankihni bintaka" and the guardian replies "zawwajtuka iyyaha", "ankahtuka" or "fa'altu" (I have done it), the contract is valid, and the husband need not add "qabiltu nikahaha". It is reported that the man who married the woman who gave herself said to the Prophet (peace be upon him): "zawwijniha ya rasul Allah" (marry her to me, O Messenger of Allah), and the Prophet replied "zawwajtukaha" (I have married her to you), without ordering him afterwards to express an acceptance.
Among the Malikis, it is recommended that the offer precede the acceptance (Mawahib al-Jalil 5/53; Sharh Mukhtasar Khalil 3/173; al-Sharh al-Kabir 3/14).
The Hanbalis require that the offer come first: if the acceptance precedes it, the marriage is not valid according to the explicit narration, whether in the past tense form, as "tazawwajtu bintaka" followed by "zawwajtuka", or in the request form, as "zawwijni bintaka" followed by "zawwajtukaha". The acceptance indeed exists only for an offer: as soon as it exists before, it is no longer an acceptance, lacking its meaning; it is therefore of no effect, as in the interrogative form; and if it cannot follow an offer in the request form, all the more so when it precedes. If the man first uttered the instituted formula, then "qabiltu hadha n-nikah", and then the guardian "zawwajtuka ibnati", the marriage is not valid: since the contract is not concluded with another formula, all the more so in this case. Sale, however, requires no formula of offer and acceptance since it is concluded by gestures, and the khul' requires none either since it can be suspended to conditions (al-Mughni 7/61; Kashshaf al-Qina' 5/42; Sharh Muntaha al-Iradat 5/121; Munar as-Sabil 2/548).
Fourth question: is acceptance of the marriage by mu'atah (consent by gesture, without words) valid? The generality of jurists, Hanafis, Malikis, Shafi'is and Hanbalis, answer no: out of respect for the private parts, given the gravity of their status and the strength of their inviolability; the contract is therefore concluded over them only through speech.
Ibn Nujaym raises the question: does acceptance by act count like acceptance by word, as in sale? In al-Bazzaziyya, the author of al-Bidaya answers, concerning a woman who married herself to a man for a thousand before witnesses: the husband said nothing but handed her the dower during the session: this may constitute an acceptance. The author of al-Muhit denied it: nothing counts as long as he has not said with his tongue "qabiltu", unlike sale which is concluded by gesture; the marriage, given its gravity, is concluded only relying on the witnesses, unlike validating by act the marriage contracted by an intruder (fuduli), where speech has already occurred (al-Bahr ar-Ra'iq 3/87; Hashiyat Ibn 'Abidin 3/12-21; Lisan al-Hukkam 1/316; al-Sharh al-Kabir 3/13).
First case: the one who masters Arabic. The Shafi'is according to one view, and Abu l-Khattab among the Hanbalis, judge that for him the marriage is not concluded in another language: he abandoned the formulas of marriage and of marrying off while capable, as if he had abandoned them for the sale or the transfer of ownership; he must then learn or delegate (al-Bayan 9/235-236; Rawdat at-Talibin 4/677; an-Najm al-Wahaj 7/49-50; Mughni l-Muhtaj 4/236-237; al-Mughni 7/61; Sharh Muntaha al-Iradat 5/120).
The question raised: for the one who masters Arabic, is the marriage concluded in another language? The Hanafis, the Shafi'is according to the soundest view, Ibn Taymiyyah and other Hanbalis judge that the offer and the acceptance are concluded in another language even if the speaker masters Arabic: consideration goes to the meaning; it is not a word whose inimitability is at stake, translation suffices; it is a contract concluded by the Arabic word, therefore by another when he is capable, like sale and the other contracts; Arabic is the language through which the fixed punishment and retaliation are established by confession, so the marriage too; if the marriage is considered from the angle where doubt has no effect, it is valid in every language, like sale; and if the dissolving of this contract is valid in another language, its conclusion is too.
Condition: each of the two contractors understands his own speech and that of the other, whether the languages match or not; otherwise the contract is not valid at all, unless a trustworthy man informs and translates, which is the sound position among them; according to one Shafi'i view it remains invalid. The witnesses must also understand the language of the contract (Hashiyat Ibn 'Abidin 3/23; al-Bayan 9/235-236; Rawdat at-Talibin 4/677; an-Najm al-Wahaj 7/49-50; Mughni l-Muhtaj 4/236-237; al-Mughni 7/60-61; al-Furu' 5/123; Kashshaf al-Qina' 5/39).
Ibn Taymiyyah writes: the marriage is concluded by whatever people count as marriage, in any language, word and act; the same applies to every contract: sale is concluded by what people count as sale, hire by what they count as hire; his disciple Ibn al-Qayyim says the same (al-Fatawa al-Kubra 4/529; see Kashshaf al-Qina' 5/39-40).
The Shafi'is according to one view and the Hanbalis within the school judge, on the contrary, that for the one who masters Arabic the marriage is not concluded in another language, because of the word of the Prophet (peace be upon him): "you have made lawful their private parts by the word of Allah" (Muslim 1218), and the word of Allah is only in Arabic; and because he abandoned the two formulas while capable.
Among the Hanbalis: if one of the two contractors masters Arabic and the other does not, the first pronounces his half, offer or acceptance, in Arabic, and the other in his own tongue. If each ignores the language of the other, a trustworthy man who knows both languages translates between them; several translators are not required. The two witnesses must know the two languages of the contract, in order to be able to bear witness: it bears on the words uttered; if they ignore them, they cannot testify (Kashshaf al-Qina' 5/39-40).
Ibn Qudamah writes: whoever is able to pronounce the formula of the marriage in Arabic, the marriage is not concluded for him in another language; this is one of the two views of ash-Shafi'i; according to Abu Hanifah, the contract is concluded: he used his own term, and it concludes like the Arabic term. Our argument: he abandoned the formula of marriage in Arabic while capable. As for the one who does not master Arabic, his contract is valid in his tongue: he is incapable of doing otherwise, like the mute; his speech must contain the two proper meanings; and he is not obliged to learn the formulas of marriage in Arabic. Abu l-Khattab holds that he must learn: whatever has Arabic as a condition requires learning it when one is capable, like the takbir.
The first view replies: the marriage is not an obligation, hence no obligation to learn its pillars in Arabic, like sale, unlike the takbir (al-Mughni 7/60-61; Sharh Muntaha al-Iradat 5/120).