intending to be unified inmarriage. Thus, as in any contract in
Islam, there are elements which are considered essential to its
existence, called 'pillars', as well as the possibility of
stipulations of different kinds, legal effects of the contract, etc.
Each of these must be understood correctly in order to ensure that the
marriage has been performed according to the legal conditions and that
the rightful effects of the marriage are guaranteed to each of the
contracting parties.
The Pillars of a Marriage Contract According to the Majority of Scholars
Offer and acceptance are among the pillars. For most scholars,
theoffer must be from the woman's side and the acceptance from theman.
The two parties to the contract: the prospective husband and the
guardian of the woman.
Some also count the following among the pillars, although the majority
of these scholars
The presence of witnesses.
Dowry.
The Wording of the Contract
There are a variety of opinions as to exactly which phrases are
validin the transaction of the marriage contract. However, the best
format is that actually used by the Prophetand his companions. Also,
it is recommended that the contract be executed verbally. However,
due to need or necessity, it may be done through writing or signing.
Among the different possible phraseology, the very clear termssuch as:
"I marry you" is acceptedby all scholars. Anything which indicates a
temporary nature of the contract is forbidden. There is some
difference of opinion concerning the validity of other phrases such
as: "I present to you", "I give to you", "I sell to you", etc.
Does it have to be in Arabic?
According to the majority of scholars, it is not necessary for the
marriage contract to be executed in Arabic, even for those who have
the ability to speak Arabic. The scholars of theHanbali school, who
required the use of forms of the words Nikaahor Zawaaj (marriage),
required that the contract be transacted in Arabic for this reason.
The Different Types of Conditions or Prerequisites
At this point, we need to learn the definition of some general terms
in Islamic Fiqh (Jurisprudence), related to this issue, which come up
in many subject areas, including the one at hand.
Saheeh (Sound): A contract whichfulfils all of the pillars and the
prerequisites, and has full effect in the law.
Baatil (Void): A contract that has failed to fulfil specific pillars
or vital prerequisites. A contract which is Baatil is the opposite of
one which is Saheeh and has no legal effect at all. If a marriage
contract is found to be void, evenif it is only discovered after
consummation, the legal condition will be as if it never happened at
all. The lineage of the father (of a child produced in such a
'marriage') will not be established and there is no waiting period
('Iddah) upon the woman. An example of this would be if a man married
a woman who was married to someone else at the time.
Faasid (Defective): This is a contract which fails to fulfil someof
the prerequisites, but not the pillars.
With respect to marriage, there are four different kinds of conditions
which must be met:
1. Conditions Required for Initiating the Contract
These are the conditions that must be present with respect to the
pillars or fundamentals of themarriage contract.
2. Conditions Required for the Soundness of the Contract
These are conditions which must be fulfilled in order for the marriage
to have its proper legal effect. If these conditions are notmet, the
contract is 'Defective' (Faasid), according to Hanafi Fiqh,and 'Void'
(Baatil) according to the others.
3. Conditions Required for the Execution of the Contract
These are conditions which must be met for the marriage to have actual
practical effect. If these conditions are not met, then the marriage
is 'Suspended' (Mawqoof) according to Hanafi and Maaliki Fiqh; for
example, a minor girl until she reaches puberty.
4. Conditions Required for Makingthe Marriage Binding
If these conditions are not met, then the marriage is non-binding,
meaning that eitherof the two parties or others may have the right to
annul the marriage. If they accept the marriage with such
shortcomings, it becomes binding.
Prerequisites Required for Initiating the Contract
In this category, there are conditions concerning the two who are
getting married, as well as the form in which the contracttakes place.
Concerning the Two Getting Married:
The two people must meet the qualification of legal competence, i.e.,
they must be adult and sane. If they are not, the marriage will be
invalid.
Secondly, the woman cannot be from those categories of women that are
forbidden for a man to marry. For example, suppose a man married a
woman and later discovered that they had been breastfed by the same
woman. In this case, it is as if the marriage never took place
because these two were not allowed to marry each other and the
marriage becomes null and void.
Concerning the Contract:
There is near unanimous agreement on the following conditions relating
to the transaction of the marriage contract:
1. The offer and acceptance must be done in one sitting. In general,
this means that the response must be immediate. Exactly what is
considered a 'sitting' depends on custom and other related factors.
2. The acceptance must correspond to what is being offered. If the
guardian says: "I marry you to Khadeejah", a response of: "I accept
Faatimah as my wife" would not constitutea valid contract. An
exception to this is if the Wali (guardian) mentions a specific dowry
amount and the groom respondswith a higher amount. It is regarded that
there is no reason for dispute here since it is assumed that a higher
dowry willbe acceptable.
3. The Wali cannot rescind the offer. Unlike transactions of selling,
neither party can say: "I have changed my mind" once they have uttered
the offer/acceptance. It is immediately binding. In a sale, they both
continue to have the option to change their mind untilthe 'sitting' is
over and they part.
4. The marriage must be effectiveimmediately. If the Wali says 'I
will marry her to you after one month', there is no marriage andthe
two remain unmarried.
Note that the custom of saying: 'Iaccept' three times, which is common
in some Muslim cultures, has no legal significance. Once the first 'I
accept' has been uttered, everything after that is meaningless -
whether positive or negative.
Adding Stipulations to the Marriage Contract
This is where one party states a stipulation binding on the other
party for specific reasons or goals. The offer/acceptance is tied to
this stipulation by mention. There is a difference ofopinion among
the scholars concerning the validity of conditions of this nature.
Conditions of contracts are two types:
1) Those imposed directly by the Sharee'ah (Islamic Legislation) and
2) Those drawn up by one or more of the parties.
When any contract is entered into, the first type of conditions are
covered automatically, even ifthey are not stated in the contract.
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