Islamic Fiqh > Marriage and family > The pillars and conditions of nikah > The formula in the past, present and imperative
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Sixth question: the formula in the past tense. The marriage is pronounced either in the past form: the guardian says "zawwajtuka ibnati" (I married my daughter to you) and the husband replies "qabiltu nikahaha" or only "qabiltu" in the majority view, unlike the Shafi'is; or in the present or imperative. In the past form there is no disagreement: all the jurists admit that the marriage is concluded this way, for this word serves performative utterance in the Law, with no disagreement among the scholars. In the present, the marriage is valid in the majority view of the jurists, Hanafis and Malikis.
The Hanafis distinguish two kinds of words: that of the past and that of the future or the present. The imperative: "zawwijni" (marry me), "zawwijini nafsak" (marry yourself to yourself), "kuni imra'ati" (be my wife), "kuni imra'ata ibni" (be the wife of my son), "kun zawji" (be my husband), "kun zawja binti": this is not an offer, but a word standing in its place, an implicit mandate; if the man then says during the session "zawwajtu" or "qabiltu", or "as-sam' wa-t-ta'a" (hearing and obedience), that is, "I accepted, submitting to your order", the contract takes shape. Others say on the contrary that the word of the imperative is an offer, since the offer is any word conveying the intended meaning, whether the speaker intends its realization or not, and this applies to the imperative.
The present: "atazawwajuki" (I marry you) with the k vocalized, or beginning with the n as in "natazawwajuk" or "nazwijuki min ibni", or with the t as in "tuzwijini nafsaki" (you give me yourself), or "tuzwijuni nafsaka" addressed to a man: the marriage is concluded by these forms, on condition of not intending postponement, that is, a promise, for the form beginning with the t alone (ad-Durr al-Mukhtar with Hashiyat Ibn 'Abidin 3/10-11).
Among the Malikis: the marriage is valid in the past form such as "ankahtu" or "zawwajtu", and in the present such as "azwiju" (I marry), on condition that an indication from the context shows utterance rather than promise, as in the past. ad-Dasuqi reports the objection of an-Nasir al-Laqqani: the matter deserves scrutiny, for contracts attach only to the past; the present has promise as its primary meaning, while the past carries the binding force (Hashiyat ad-Dasuqi on al-Sharh al-Kabir 3/13; Hashiyat as-Sawi 4/428).
If the two forms are mixed, as in "zawwijni" from the husband followed by "zawwajtuka" from the guardian, the marriage is valid: the request is a mandate, and the agent may take charge of both sides of the marriage (al-Ikhtiyar 3/103; al-Fatawa al-Hindiyya 1/270).
The Hanafis and the Shafi'is explicitly stated that the marriage is concluded by the active participle. Among the Hanafis: if he says "ana mutazawwijuk" (I am marrying you), or "ji'tuka khatiban" (I have come seeking your hand) and the father replies "zawwajtuka", the marriage is binding and the suitor can no longer refuse to accept, for lack of bargaining. al-Mu'alla reported from Abu Yusuf from Abu Hanifah: "ji'tuka khatiban ibnataka", "li-tuzwijani ibnataka" or "zawwijni ibnataka", then the father "qad zawwajtuka": the marriage is binding and the suitor cannot decline to accept; it does not resemble sale, which rests on negotiation and haggling. If he says to her "ana atazawwajuki" (I shall marry you) and she replies "qad fa'altu" (I have done it), the contract is valid and binding, for this word equals "tazawwajtuki" according to usage, the situation showing it, like the word of testimony.
If he says "tuzwijini nafsaki" and she accepts, the contract is concluded provided he did not intend postponement. If he says "a-tuzwijuni? (will you give me?) and the other replies "zawwajtuka", the marriage is not concluded: it is an inquiry and a request for promise, not an order and a mandate; if he meant by it confirmation rather than inquiry and haggling, the contract is concluded (al-Ikhtiyar 3/103; al-Bahr ar-Ra'iq 3/89; al-Jawhara an-Nayyira 4/265; Mukhtasar al-Wiqaya 1/343; al-Fatawa al-Hindiyya 1/270; Hashiyat Ibn 'Abidin 3/12).
al-Ramli: the form of the active participle such as "ana muzwijuk" or "ana mutazawwij" gives validity by analogy, like "ana ba'i'uka dari bi-kadha" (I sell you my house for such a price), which is valid according to ar-Rafi'i (Asna l-Matalib 3/119; Nihayat al-Muhtaj 6/245).
In the imperative form, the marriage is concluded among the Hanafis, the Malikis and the Shafi'is. The Hanafis: "tazawwaj ibnati" (marry my daughter) followed by "tazawwajtu", or "zawwij ibnataka minni" (marry your daughter to me) followed by "zawwajtu": the marriage is concluded (Bada'i' as-Sana'i' 5/133; al-Jawhara an-Nayyira 4/265). The Malikis: it is concluded in the imperative as in the past and the present, and the imperative form is even more fitting, for it is coined for utterance (Hashiyat as-Sawi 4/428). The Shafi'is: "tazawwaj ibnati" followed by "tazawwajtuha", or "zawwijni" followed by "zawwajtuka": the marriage is concluded (Rawdat at-Talibin 4/678-679; Asna l-Matalib 3/119; Nihayat al-Muhtaj 6/245).
Among the Malikis, the marriage is concluded by offer and request: if one says to the father of the virgin or the father of the previously married woman, the latter having authorized him to marry her, "zawwijni fulana" (marry me to so-and-so) and he replies "qad fa'altu" or "qad zawwajtuka", then the suitor says "I am not content", the marriage remains binding all the same (Mawahib al-Jalil 5/53).
al-Bukhari reported in his Sahih a chapter stating that if the suitor says to the guardian "marry me to such a woman" and he replies "I have married you to her for such and such", the marriage is valid even if he does not say to the husband "are you content? do you accept?":
A woman came to the Prophet (peace be upon him) and offered herself to him. He said: "I have no need of a woman today. A man said: "O Messenger of Allah, marry her to me. He asked: "What do you have?
He said: "I have nothing. He said: "Give her something, even a ring of iron. He said: "I have nothing. He said: "What do you know of the Quran?
He said: "Such and such surahs. He said: "I make her yours through what you have of the Quran."
reported by al-Bukhari (4847)
Ibn Hajar al-'Asqalani writes: this chapter bears on the following question: does the seeking stand in for the acceptance, so that the contract resembles an acceptance placed before the offer, or must the acceptance be repeated? The compiler inferred from the account of the giving woman that after the word of the Prophet (peace be upon him) "I make her yours through what you have of the Quran", nothing indicates that the man said "I have accepted". al-Muhallab objected: the plainness of the account spared one from pausing over the suitor's acceptance, given the exchange, the request and the reciprocity it contains; whoever stands in the state of that eager man need not express his acceptance, since his eagerness is already known, unlike the one over whom no indication of contentment stands (Fath al-Bari 9/198).
In the interrogative form, the Shafi'is judge: if one says "a-tuzwijuni ibnataka?" (will you marry your daughter to me?) and the guardian replies "zawwajtuka", the marriage is not concluded, unless the suitor adds "tazawwajtu"; likewise if the guardian asks "a-tatazawwaj binti?" or "tazawwajtuha?" and the man replies "tazawwajtu", the marriage is not concluded, unless the guardian adds "zawwajtuka": it is an inquiry (Rawdat at-Talibin 4/679; Asna l-Matalib 3/119).
The Hanafis: an explicit question is settled according to the state of the session; in the commentary of at-Tahawi: if he says "have you given her to me?" and the other replies "I have given her to you", if the session was meant for a promise, it is a promise; if it was meant for the contract, it is a marriage. ar-Rahmati deduces: consideration goes to what appears of their speech, not to their intention: consider that the contract is concluded even in jest, while the jester does not intend the marriage; and if the intention of postponement was validated only in the form beginning with the t, it is because the elided interrogative particle is very common in the language (Sharh Fath al-Qadir 3/191; Hashiyat Ibn 'Abidin 3/11-12).
The Hanbalis return here: the acceptance placed before the offer, in the past form such as "tazawwajtu ibnataka" followed by "zawwajtuka", or in the request form such as "zawwijni bintaka" followed by "zawwajtukaha", is not valid according to the explicit narration (al-Mughni 7/61; Kashshaf al-Qina' 5/42).
Seventh question: must the marriage be free of the option of the session (khiyar al-majlis, the faculty to retract during the sitting) and of the option of a condition (khiyar ash-shart)? First, khiyar al-majlis: the jurists debated its existence in the marriage. If the guardian says "zawwajtuka ibnati" and the husband "qabiltu zawajaha", then one of the two, guardian or husband, retracts during the session, does his retraction have any effect?
The majority of the jurists, Hanafis, Shafi'is and Hanbalis, answer that the option of the session does not apply to the contract of marriage: it is neither a sale nor of its kind; the name of sale does not apply to it; the counterparty is neither a pillar nor a purpose in it; and the need for it is not compelling: the marriage, in general, is concluded only after reflection, deliberation and inquiry by each of the two spouses about the other, unlike the sale.
Ibn Hubayrah writes: they agreed that the option does not apply to contracts whose counterparty is not intended, such as the marriage, the khul' and manumission by contract (al-Ifsah 1/350; see al-Mabsut 5/94-95; an-Nahr al-Fa'iq 3/363; al-Bahr ar-Ra'iq 6/4; Hashiyat Ibn 'Abidin 4/570; al-Bayan 5/28 and 9/237; an-Najm al-Wahaj 4/111; Mughni l-Muhtaj 2/486-487; al-Mughni 7/73; al-Insaf 4/367-368; Kashshaf al-Qina' 5/42).
The Malikis judge that the option of the session applies to the marriage only if it was stipulated, in which case it is applied. ad-Dirdir writes: the marriage becomes binding through the formula of either one, even if the other is not content, even if an indication shows jest in both, like divorce and manumission. ad-Dasuqi comments: its apparent sense suggests that the option of the session is not applied among us in the marriage; yet it is, but on condition of having been stipulated, as our shaykh detailed; what the author of the commentary mentioned, namely the binding character of the marriage even without contentment, is the adopted position, even if an indication shows the will to jest in both; unlike the view of al-Qabsi: if it is known that the marriage was a jest, it does not become binding.
as-Sawi: the marriage becomes binding through the mere offer and acceptance, even if the other is not content and even if an indication shows jest; for the marriage is a binding contract admitting no option except the option of the session, applied among us specifically in the marriage when it is stipulated (Hashiyat ad-Dasuqi 3/14; Hashiyat as-Sawi 4/429; see al-Qawanin al-Fiqhiyya p. 131; Mawahib al-Jalil 5/53).
The jurists agreed that the marriage admits no option of condition: if the guardian says "zawwajtuka ibnati 'ala anni bi-l-khiyar thalathat ayyam" (I marry my daughter to you on condition of having the option for three days), or if the husband says "qabiltu nikahaha 'ala anni bi-l-khiyar thalathat ayyam", this condition of option is not valid by consensus. But the scholars debated: does the condition invalidate the contract too, or is the contract valid with only the condition invalid?
The Shafi'is and the Hanbalis according to one view answer that the marriage and the condition are both invalid: stipulating the option amounts to fixing a term; consider sale, where the option applies: the ruling of the contract, ownership, is postponed past the lapse of the term and the contract becomes as if deferred; likewise here, with the condition of option, the marriage becomes deferred, and a marriage deferred to a future moment is not allowed; fixing a term prevents the validity of the marriage, as in "I marry her for a month".
Imam ash-Shafi'i writes in al-Umm (5/81): when a man marries a woman on condition of having the option in this marriage for a day, less or more, or on condition of having the option without mentioning a term, so that he validates the marriage or annuls it at will, or if he says "on condition that I have the option" meaning the one who holds the option, that is, that he validates it or annuls it as he wishes: the marriage is corrupt. The same applies if the option is for the woman, for both of them, or for a third party by their stipulation: the marriage is invalid in all these cases. If he has not consummated, the contract is dissolved; if he has consummated, she is due the dower of the like for what he has consummated, and no marriage subsists between them; she may be courted with the other suitors, and she observes her waiting period ('iddah) from that intercourse; it would be dearer to me that he wait until she is purified.
ash-Shafi'i explains: I invalidated it because the Prophet (peace be upon him) forbade the mut'a marriage; since the mut'a marriage is dissolved, the prohibition means that marriage is lawful only as an absolute legalization of the wedded wife, without term. If she is so up to a term, she made herself lawful in one state and forbidden in another: the marriage can only be absolute. Since the marriage with option exceeds the proper meaning in several respects, the enjoyment was corrupted in that the contract was not concluded, intercourse remaining lawful without limit until a new choice arises; the knot would then be tied over a marriage in which intercourse would never be lawful: the marriage within the knot would not be established; the prior marriage would not be established in one state and established in another, which is uglier still than the mut'a marriage, which at least was first established for a term, and ceased to be established once the term lapsed.
And he concludes: I know of no opponent, overall, to the fact that the marriage is not lawful with an option as sales are; if the option is therefore not lawful in it, whoever gave that sweeping statement must not validate the marriage with a condition of option (al-Umm 5/81).
al-Mawardi writes: know that the contract of marriage admits neither the option of the session nor the option of three days, for it is concluded immediate, without intending deception over quality; yet the option was coined to remedy deception. If one of the two stipulates either option, two cases arise. If they stipulate it, either of them, in the contract of marriage itself, the marriage is invalid, for it contradicts its binding character.
If it is stipulated in the dower alone, ash-Shafi'i said in al-Umm, as al-Muzani transmits, that the dower is invalid and the marriage licit; but in al-Imla' that the marriage is invalid: his companions divided according to his two texts, and Abu 'Ali Ibn Abi Hurayra reconciled them into two cases: the dower invalid and the marriage licit, since the nullity of the dower does not affect the validity of the marriage; or the marriage invalid through the nullity of the dower; yet the invalidation of the marriage through the nullity of the dower is transmitted from ash-Shafi'i only in this passage, because the option in the counterparty is like the option in the thing exchanged.
The rest of his companions answer: it is not a matter of two opinions but of two situations. The passage where he invalidates the marriage is the one where the option is stipulated in the marriage; the passage where he invalidates the dower and validates the marriage is the one where the option is stipulated in the dower alone, for the dower is a contract that can exist alone, just as the marriage can exist without it: the nullity of the dower therefore does not entail that of the marriage. If the marriage is said to be invalid, there is no dower; if he has consummated, he owes her the dower of the like.
As for the validity of the marriage, Abu Hamid al-Isfara'ini reported from his companions three positions on the dower and the option, found nowhere else, for the text of ash-Shafi'i does not require them: the option invalid and the dower invalid, with the dower of the like, since the option that cannot enter the marriage cannot enter its counterparty; or, against his text, the dower licit and the option established, since the dower is a contract of exchange that can exist alone and then follows the regime of sales; or the option invalid and the dower licit, since the dower follows the marriage and the nullity of the condition does not affect it (al-Hawi al-Kabir 9/509-510).
The Hanafis and the Hanbalis within the school answer: if the option of condition is stipulated in the contract of marriage, the marriage is valid and the condition invalid. The Hanafis: the marriage is licit and the option invalid, according to the word of the Prophet (peace be upon him):
Three things whose jest is earnest: the marriage, the divorce and the manumission.
reported by al-Bukhari and Muslim
Jest and stipulating the option are alike: the jester brings about the fact without accepting its ruling, indeed never accepts it; the one stipulating the option does not accept the binding ruling at a specific moment. Since jest does not prevent the marriage from taking full effect, all the more the stipulation of option: the marriage does not tolerate dissolution after its completion and does not admit the option of condition, which therefore does not prevent its completion, like divorce and manumission for money. Stipulating the option indeed never prevents the conclusion of the fact itself; it only removes consent to its binding character, as in sale.
Now the binding character is part of the necessary validity of the marriage: the condition of option is therefore a corrupt condition; yet the marriage is not invalidated by corrupt conditions, and neither its validity nor its binding character depends on complete consent: consider that complete consent comes only after seeing, as in sale, and that the absence of seeing does not prevent the validity of the marriage, so that there is no option of seeing; unlike deferral to a term, which prevents the immediate conclusion of the fact, and whose like is not valid in sale: that is why the marriage falls through the fixing of a term (al-Mabsut 5/94-95; an-Nahr al-Fa'iq 3/363; al-Bahr ar-Ra'iq 6/4; Hashiyat Ibn 'Abidin 4/570).
Ibn Qudamah classifies: the third category is what invalidates the marriage at its root, such as their stipulating the deferral of the marriage, that is, the mut'a marriage, or his divorcing her at a specific moment, or suspending it to a condition: "zawwajtuka in radiyat ummuha aw fulan" (I marry you if her mother consents or if so-and-so consents), or the option stipulated for both of them or for one of them: these are conditions invalid in themselves and invalidating the marriage; likewise if he makes her dower the marrying of another woman, that is, the shighar marriage.
Abu l-Khattab mentioned, for the one who stipulates the option with "if her mother consents" or the condition "if he brings the dower at such a time, otherwise no marriage between us", two narrations. The first: the marriage is valid and the condition invalid; this is the view of Abu Thawr on the option, reported also from Abu Hanifah, who claimed there was no disagreement on it. Ibn al-Mundhir says: Ahmad and Ishaq declared that in "I marry her on condition of bringing the dower at such and such a time, otherwise no marriage", the condition is invalid and the contract licit; this is the view of 'Ata', of ath-Thawri, of Abu Hanifah and of al-Awza'i, and it is reported from az-Zuhri.
Ibn Mansur reported from Ahmad, in this case, that the contract and the condition are both licit, according to the word of the Prophet (peace be upon him): "The believers abide by their conditions" (reported by Ahmad). The other narration: the contract is invalid at its root, for the marriage is only binding, and this condition allows dissolving it; and because, in saying "if her mother consents" or "if you come to me at such a moment", one has suspended the marriage to a condition, which is not allowed; this is the view of ash-Shafi'i, and something similar is reported from Malik and Abu 'Ubayd.
Chapter: if the option is stipulated in the dower alone, the marriage is not corrupted, for the marriage can exist without mention of a dower, and an unlawful or corrupt dower does not corrupt the marriage; all the more a condition of option in it; this distinguishes it from sale, where the corruption of either counterparty corrupts the other. Three positions on the dower: it is valid and the condition of option invalid, as the condition becomes invalid in the marriage while the marriage remains valid; or it is valid and the option applies to it, for the contract of dower is an autonomous contract following the regime of prices and receiving the option like the sales; or it is invalid, for the woman did not consent to it and is not bound by it, as if she had accepted nothing at all (al-Mughni 7/73).
Ibn Taymiyyah writes: if he stipulates the option in the marriage, three views exist, which are three narrations from Ahmad: it is said contract and condition valid; it is said both invalid; it is said contract valid without the condition. The most apparent is that the condition is valid; if it is said invalid, the contract is no less binding, for the principle of the condition is its fulfillment, and the condition of option is a sound purpose, especially in the marriage. This rests on a principle: does the option in sale have validity as its principle, or invalidity, later admitted as exception? The first is the view of the imams Malik, Ahmad, Ibn Abi Layla, Abu Yusuf and Muhammad; the second that of Abu Hanifah and ash-Shafi'i: that is why these two invalidated the option in most contracts, including the marriage (Majmu' al-Fatawa 29/349-350; al-Insaf 8/166).
Among the Malikis: the marriage is a binding contract admitting no option; as-Sawi recalls it in terms similar to those of the option of the session. But no view of their school was found on whether the marriage falls through this condition or remains valid with the invalidation of the condition alone.
Eighth question: unity of the session. The Hanafis teach that the offer and the acceptance require unity of the session when the two persons are present: the offer and the acceptance within one sitting. If the sittings differ, the marriage is not concluded: both present, one makes the offer and the other leaves the session before the acceptance, or engages in work that breaks the session according to custom: the contract is not concluded, for its conclusion is the linking of one half to the other; the measure is therefore the presence of both in one place. But a strict application of this would close the door of contracts: the session was therefore made the legal link of the two halves despite their real separation, by necessity; and the necessity is removed as soon as the session is one.
If they separate, the two halves separate in reality and in law, and the pillar no longer takes shape.
Thus, if they contract while walking or riding a mount, it does not count; if they are on a moving ship, it counts, for the ship is reckoned as one place, provided both contractors are present.
al-Kasani: if one of the two is absent, the contract is not concluded, even if a woman says before two witnesses "zawwajtu nafsi min fulan" (I marry myself to so-and-so) while he is absent, the news reaches him and he replies "qabiltu"; likewise if a man says before two witnesses "tazawwajtu fulana" while she is absent, the news reaches her and she replies "zawwajtu nafsi minhu": it does not count, even if the acceptance takes place before those same witnesses: this is the view of Abu Hanifah and Muhammad.
Abu Yusuf: the contract is concluded, suspended to the ratification of the absent one. His argument: the speech of a single person can be a contract in the marriage, for in this field one single person can contract from both sides, like the one who owns both sides, or the guardian, or the agent; his speech is therefore a whole contract, not a half, and can bear suspension like the khul', the divorce and manumission for money.
The argument of the other two: this is a half of the contract in reality, not its whole, for he does not own all of it, lacking guardianship; and a half cannot be suspended on an absent one, as in sale; a half does not bear suspension in reality, suspension being conceivable only figuratively, because of the loyalty covering both sides; his speech becomes like two speeches and his person like two persons in law; guardianship being absent, no necessity imposes this figure: no suspension; unlike the khul', which involves on the husband's side an oath, the divorce suspended to the wife's acceptance, so that the contract there is whole, and on the wife's side a counterparty: it does not bear suspension like the sale; likewise the divorce and manumission for money.
If he sends her a messenger and writes her a letter, and she accepts before two witnesses who heard the messenger's words and the reading of the letter, it counts: the session is united in meaning, the messenger's speech counting as the sender's, since he conveys his wording, and the letter counting as the writer's speech. If they heard neither the messenger's words nor the reading of the letter, it does not count according to the two; according to Abu Yusuf, her saying "zawwajtu nafsi" suffices without it: her speech is a half of the contract, and testimony is required over the two halves, for with the two halves it becomes a contract; the husband's speech alone is a contract according to him, and the witnesses are present.
It is on this disagreement that the case of the intruder (fuduli) acting alone from both sides is settled: a man says "zawwajtu fulanan min fulan" while both are absent: the contract is not concluded according to the two, even if the news reaches them and they ratify; according to Abu Yusuf it is concluded and validated by the ratification. If an intruder states the contract and another intruder accepts on behalf of the husband, the marriage is concluded with no disagreement among the companions; if the news reaches them and they ratify, it is valid; and if the first intruder annuls the contract before the ratification of the one who had suspended it, the annulment is valid according to Abu Yusuf and invalid according to Muhammad (Bada'i' as-Sana'i' 2/232-233; al-Bahr ar-Ra'iq 3/89; Hashiyat Ibn 'Abidin 3/14).
Ninth question: must the offer and the acceptance be immediate? The jurists debated: must the offer and the acceptance occur in one session, with an acceptance on the spot, or is a delay allowed between the offer and the acceptance?
The Shafi'is require continuity (muwalat) between the offer and the acceptance and an immediate acceptance: a brief interval does no harm, a long interval does harm, the one showing disdain for the acceptance. If a long time intervenes between the two, the contract is not valid; if it is a brief time, comparable to swallowing saliva or a held breath, it is valid, for one cannot guard against it. As soon as one half of the contract exists from one of the contractors, he must carry it through until the other half exists: if he retracts, the contract falls. Likewise if the guardian makes the offer then becomes insane or loses consciousness, and then the husband accepts; or if the husband requests the marriage then loses his mind before the guardian's offer, and then the guardian offers: nothing is valid.
Likewise if the woman authorized her marriage where her authorization is taken into account, then loses consciousness or becomes insane before the contract: her authorization falls and the contract falls, for the contract is revocable before its completion, and so is the authorization: it dissolves like the mandate and the partnership (al-Bayan 9/236; Rawdat at-Talibin 4/679-680; an-Najm al-Wahaj 7/52).
The Hanafis and the Hanbalis do not require immediacy: the acceptance may follow the offer as long as both remain in the session without engaging in what breaks it by custom, even if the interval lengthens. The Hanbalis: the rule of the session is the rule of the state of the contract; if they separate before the acceptance or engage in what breaks it, the offer falls for disdain; likewise if one becomes insane or loses consciousness before the acceptance; but the offer does not fall if he makes the offer then falls asleep and the acceptance takes place during the session: sleep does not invalidate revocable contracts (al-Insaf 8/49; Kashshaf al-Qina' 5/41; ar-Rawd al-Murbi' 2/280; Bada'i' as-Sana'i' 2/232-233; al-Bahr ar-Ra'iq 3/89; Hashiyat Ibn 'Abidin 3/14).
Ibn Qudamah writes: if the acceptance follows the offer with a delay, the contract is valid as long as both remain in the session without turning away from it otherwise, for the rule of the session is the rule of the state of the contract; proof of it is the taking of possession where it is required and the option in contracts of exchange. If they separate before the acceptance, the offer falls: its meaning no longer exists, disdain having appeared through the separation, and there is no longer an acceptance; likewise if they engage in what breaks it: disdain for the contract appears through the occupation as well.
Abu Talib reported from Ahmad about a man whom people came to see saying: "zawwij fulanan" (marry your daughter to so-and-so). He replied: "qad zawwajtuhu 'ala alf" (I have married him for a thousand). They returned to the suitor and informed him, and he said: "qad qabiltu" (I have accepted). Is this a marriage?
He answered: "Yes. The qadi (Ibn 'Aqil) comments: this is understood as his having delegated the one who concluded the contract during the session. Abu Bakr: the issue of Abu Talib admits two readings; he chose that the acceptance must take place within the session, and that is the sound view, if Allah wills (al-Mughni 7/60-61; al-Kafi 3/29).
Ibn Taymiyyah: Ahmad explicitly stated this in the narration of Abu Talib, about a man whom his people came to see: "marry to so-and-so. "I have married him for a thousand. They returned and informed the suitor, who said: "I have accepted. Is this a marriage?
He answered: yes. Ibn 'Aqil derives from it that the suspended marriage is valid; he spoke well, and this is Abu Bakr's way: it is not a delay of acceptance but a delay of ratification; the issue of Abu Talib and the words of Abu Bakr concern the case where the suitor was not present at the session of the offer, and this is the best reading; if the two left the session of the offer, nothing in the words of Ahmad and Abu Bakr establishes it.
It may be said: if the other contractor is present, his acceptance is taken into account; if he is absent, the acceptance may follow with delay, as we said of the delegation of judgment; and the companions said of the mandate that its acceptance is immediate or deferred, guardianship being a kind of mandate. The qadi in al-Mujarrad and Ibn 'Aqil in al-Fusul, completing the narration of Abu Talib: the suitor says "qabiltu", and it is valid if two witnesses are present. Abu l-'Abbas: this implies that the ratification of the suspended contract, if one says it is concluded, requires two witnesses; it is sound and good (al-Fatawa al-Kubra 4/529-530).
al-Mirdawi: "what breaks it" is understood according to custom; "if they separate, the offer falls" is the school, and on it the companions agree; it is also reported from him that the offer does not fall, and with the absence of the suitor that it does not fall either. Shaykh Taqi d-Din took this narration from the issue of Abu Talib; the qadi saw in it a ruling of validity after leaving the session of the contract, understood as a mandate given to the one who concluded, then a ratification; Ibn 'Aqil refuted it and derived from it the validity of the suspended marriage; and Taqi d-Din: Ibn 'Aqil spoke well, this is Abu Bakr's way: it is not a delay of acceptance but of ratification (al-Insaf 8/50-51; al-Mubdi' 7/20).
Among the Malikis, Ibn Juzayy al-Kalbi al-Gharnati writes: the marriage is a binding contract admitting no option, unlike Abu Thawr; immediacy is required from both sides: if the acceptance follows the offer after a brief delay, it counts; ash-Shafi'i does not admit it in any case, and Abu Hanifah admits it without restriction (al-Qawanin al-Fiqhiyya p. 131; Mawahib al-Jalil 5/53; Manh al-Jalil 3/268).
Preliminary: the formula set to a term. The marriage is not concluded if the guardian says "azwijuka ibnati ghadan" (I marry my daughter to you tomorrow) or "zawwajtuka ibnati idha ja'a ra's ash-shahr" (I married my daughter to you at the start of the month), or if the woman says "tazawwajtuka ghadan" (I marry you tomorrow); likewise if one says, in the state of consecration, "zawwajtuha fulanan fi safar" (I married her to so-and-so in the month of Safar) and the man replies "qabiltuha": the marriage is not valid (al-Bunaya 5/8; Durrar al-Hukkam 1/334; al-Bahja 1/427-428; Sharh Mukhtasar Khalil 3/196; al-Sharh al-Kabir 3/42-43; an-Najm al-Wahaj 7/52; Mughni l-Muhtaj 4/238; Nihayat al-Muhtaj 6/247; al-Insaf 8/47-48; al-Mubdi' 7/21; Kashshaf al-Qina' 5/41; Sharh Muntaha al-Iradat 5/189; Matalib uli n-nuha 5/129).
The suspension (ta'liq) of the marriage bears either on a future matter, or on a present or past matter. If it bears on a future matter, it bears either on the will of Allah, or on the will of another.
On the will of Allah: it is lawful with no disagreement among the jurists when it intends blessing: "zawwajtuka ibnati in sha' Allah" (I marry my daughter to you, if Allah wills) and the husband replies "qabiltu zawajaha in sha' Allah". al-Mirdawi reports from Ibn Shaqulah: we know of no disagreement, for it is an existing condition when Allah wills it, all the pillars and conditions being gathered (al-Insaf 8/47; see al-Mughni 5/127). But if he intended the suspension, or uttered it without a precise intention, the Shafi'is explicitly stated that the contract is not valid; if he intended blessing, or the fact that everything happens by the will of Allah, it is valid (Mughni l-Muhtaj 4/238; an-Najm al-Wahaj 7/52; Hawashi ash-Shirwani on Tuhfat al-Muhtaj 8/547; Nihayat al-Muhtaj 6/247; Hashiyat Qalyubi 3/537).
On the will of another: if the guardian says "idha ja'a fulan fa-qad zawwajtuka ibnati fulana" (if so-and-so comes, I have married my daughter to you) and the man accepts, then so-and-so comes, the marriage is not concluded in the view of the mass of scholars, Hanafis, Malikis, Shafi'is and Hanbalis; likewise "in wada'at zawjati bintan fa-qad zawwajtukaha" (if my wife gives birth to a girl, I have married her to you): this is not valid.
This concerns suspension to a future matter; if it bears on a past matter or on a present matter known at once, it is valid among the Hanbalis, and among the Hanafis for the present matter.
The Hanafis: suspending the marriage to a coming event is not allowed: if one says "idha ja'a fulan fa-qad zawwajtuka binti fulana", he accepts, and the said man comes, the marriage is not concluded, for it is an obligation. Exception: suspension to a will, if the holder of the will annuls it during the session: "tazawwajtuki in shi'ti" (I marry you if you wish) or "in sha'a Zayd" (if Zayd wills), and the holder of the will annuls it during the session: the marriage is lawful, the will being annulled, it becomes a marriage without a will. And since suspension to a coming event is not allowed, the option of condition in it is invalid: "tazawwajtuki 'ala anni bi-l-khiyar" (I marry you on condition of having the option), she accepts: the marriage is valid but without the option; unlike "in radiya abi" (if my father consents), which is not allowed. Unlike suspension to a matter known at once: it is valid and constitutes a realization.
A man asks "zawwijni ibnataka" (marry your daughter to me), the father replies "I married her before to so-and-so", the suitor does not believe him, the father says "if I had not married her before to so-and-so, I have married her to you", the other accepts, and it then appears that he had not married her: this marriage is concluded, for suspension to an existing condition is a realization (Sharh Fath al-Qadir 3/198-199; al-Bahr ar-Ra'iq 6/204; Durrar al-Hukkam 4/77; Hashiyat Ibn 'Abidin 3/53).
Abu l-Hasan at-Tarabulusi writes: know that suspending the marriage to a condition known at once is valid and constitutes a realization: "zawwijni bintaka", the father replies "I married her to so-and-so before", the suitor calls him a liar, the father says "if I had not married her to so-and-so, I have married her to you", the other accepts, and his lie appears: the marriage is concluded, the existing condition having been realized. Consider: if he says to his wife "you are divorced if the sky is above us and the earth below us", she is divorced at once (Mu'in al-Hukkam p. 155).
The Hanbalis: suspending the marriage to a future condition is not valid, as in "in wada'at zawjati jariyatan fa-qad zawwajtukaha" (if my wife gives birth to a slave girl I have married her to you), or "zawwajtuka ma fi batni hadhihi l-mar'a" (I marry to you what is in the womb of this woman), or "zawwajtuka man fi hadhihi d-dar" (I marry to you whoever is in this house), the two not knowing who is in the house: the marriage is not valid.
But if he suspends the marriage to present or past conditions, it is valid: "zawwajtuka hadha l-mawlude in kana untha" (I marry to you this newborn if it is a girl), "zawwajtuka ibnati in kanat 'iddatuha qad inqadat" (I marry my daughter to you if her waiting period has ended), "zawwajtuka binti in kuntu waliyataha" (I marry my daughter to you if I am her guardian), the two knowing it: the marriage is valid, for this is not a suspension in reality, the past and the present admitting none. Likewise suspension by the will of Allah is valid: "zawwajtukaha in sha' Allah" or "qabiltu in sha' Allah". And if the guardian says "zawwajtuka ibnati in shi'ta" (I marry my daughter to you if you wish) and the man replies "qad shi'tu wa qabiltu" (I wish it and I accept), the marriage is valid: this is not a condition in reality, but an insistence and a strengthening; Ibn Rajab said it (al-Insaf 8/47-48; al-Mubdi' 7/21; Kashshaf al-Qina' 5/41; Sharh Muntaha al-Iradat 5/189; Matalib uli n-nuha 5/129).
The Shafi'is require that the marriage be immediate: suspension is therefore not valid, as in "idha tala'ati sh-shamsu fa-qad zawwajtuka binti" (when the sun rises I have married my daughter to you) or "idha ja'a ra's ash-shahri fa-qad zawwajtuka binti" (when the month begins I have married my daughter to you), like the sale and the other exchanges that admit no suspensions; the marriage, with its privilege of precaution, all the more so.
Among them: a man learns of the birth of a child and says to another present: "in kanat untha fa-qad zawwajtukaha" (if it is a girl I have married her to you), the other accepts, and it appears that it is a girl: the school rules the marriage invalid in these cases, even if reality is so, because of the form of suspension and the corruption of the formula. But if he says, after making sure of the reporter's truthfulness or of his probable sincerity: "in sadaqa l-mukhbiru fa-qad zawwajtukaha" (if the reporter tells the truth I have married her to you), the marriage is valid: it is not a suspension but a realization, as in "in kunti zawjati fa-anti taliq" (if you are my wife you are divorced), the "if" then meaning "when". Likewise if a man married to four wives is told of the death of one of them, and he says to a man: "if the reporter tells the truth I marry your daughter", and the man replies "zawwajtukaha": the marriage is valid (an-Najm al-Wahaj 7/52; Kanz ar-Raghibin 3/537; Mughni l-Muhtaj 4/238; Tuhfat al-Muhtaj 8/547; Nihayat al-Muhtaj 6/247; ad-Dibaj 3/185).
Among the Malikis: suspending the marriage is not valid: "in mada shahrun fa-inni atazawwajuki" (if a month passes I marry you) belongs to suspension, and suspension in it is not valid.
at-Tusuli reports in al-Shamil the text of Malik: if he says "in ji'tani bi-khamsin fa-qad zawwajtuka ibnati" (if you bring me fifty I have married my daughter to you), this does not please me: she is not married to him. Likewise "in 'abartu l-wadi aw sa'adtu 'ala qinnat al-jabal fa-qad a'taytuka ibnati" (if I cross the valley or climb the summit of the mountain I have given you my daughter): this too is not valid, all the more than the previous one, for the speaker gains no benefit from crossing the valley or climbing the mountain. But if he says "in faraqta imra'ataka fa-qad zawwajtuka ibnati" (if you divorce your wife I have married my daughter to you), this is lawful and is concluded by the divorce itself; if he says in the present "fa-inni azwijuka" (then I marry you), he is not compelled to marry her; the apparent meaning, according to al-Shamil, is compulsion: it is a promise whose object he brought about by his own act, the divorce of his wife, like "sell me your horse, the price is on me".
In al-Iltizamat, the transmission of the view of Ashhab (no compulsion) rests on the waiting period not being enforced even if it bears on a cause the man entered; the second view (compulsion) rests on its being enforced if the waiting period bears on a cause he entered: this is the most widespread view. In the marriages of al-Mi'yar: the one who says to another "talliqi imra'ataka wa azwijuka ibnati" (divorce your wife and I will marry you my daughter), then she is divorced and he refuses to marry her, is held to one of two duties: marrying her or paying him the dower; it is repeated in the novel cases, and see the marriages of al-Qalshani.
In al-Iltizamat again: a man wanted to leave for the pilgrimage with his mother; his uncle said to him: "give up the journey with your mother, I marry you my daughter and give you ten mithqals." He gave up the journey, then came forward months later to claim the woman; Ibn al-Hajj rules that he is compelled to pay the ten mithqals and to marry his daughter to him, unless he has already concluded her marriage with another, in which case the marriage with him is not lawful: it is a waiting period that a cause accompanies; Ibn Rushd ruled the same. It is understood from this that whoever binds himself to marry someone is compelled to do so, unless he has concluded her marriage to another: then it is not dissolved.
I say: to be pondered together with his answers to al-Quri, concerning a man who says to another: "if you bring me such a thing from such a place, a dreaded place, I give you my daughter": the marriage is not binding, citing al-'Utbiyya about the one whose child fell into a pit and who said to a man: "if you bring him out I marry my daughter to you"; the man brought him out; Ibn al-Qasim rules: this is not allowed and there is no marriage; I grant him, however, a similar wage for bringing him out, alive or dead.
Now here the formula is in the past and the cause was entered, yet he is not compelled: this contradicts, apparently, the case "if you divorce your wife I marry my daughter to you", where compulsion was affirmed through the divorce itself; yet it is known that there is no waiting period in either case, the formula being in the past. In the marriages of al-Mi'yar: the one who says "whoever rides my horse, my daughter belongs to him" is not held to a marriage; and from his words "in ja'a ghadan fa-qad raja'tuki" (if you come tomorrow I have taken you back): there is no taking back. See the marriages of al-'Ilmi about the one who says "if a child is born to you, my daughter belongs to him"; and if one says the marriage is binding in this case, what is the dower? The most apparent: like the marriage by delegation: if he fixes the dower of the like, he is bound, otherwise not (al-Bahja 1/427-428; see Sharh Mukhtasar Khalil 3/196; al-Sharh al-Kabir 3/42-43).
In practice, follow the path shared by all: the guardian pronounces the explicit formula in the past tense ("I marry my daughter to you"), the husband replies ("I accept this marriage"), within one session, without delay and without interruption, before two witnesses who understand the language used, with a trustworthy translator if the languages differ. Avoid the indicative formulas and above all any condition, any term and any option: a future condition prevents the conclusion of the contract, a condition of option is simply annulled, and the marriage itself stands. The formula "if Allah wills" intends blessing and suspends nothing.