fornicate with her or marry her? Would he be her guardian, or would she be her own guardian? The scholars have differed over this. Some say that he should marry her, saying, “I marry myself to you,” and she says, “Yes.” Others say that she is the one who contracts the marriage, saying, “I marry myself to you,” and he says, “I accept.” This latter view is closer to what is correct, because there is presently no legally recognized guardian available. When there is no legally recognized guardian, she has the greater right over herself, and this is a case of necessity.

So, is the marriage contract we have concluded in this manner, out of necessity, better, or is it better that he fornicate with her? The former is unquestionably better.

His statement, “nor may she marry off another woman,” means that if she is not permitted to marry herself off, then, all the more so, she may not marry off someone else. Accordingly, a mother may not marry off her daughter, nor may an elder sister marry off her younger sister, even if someone else appoints her as his agent. Thus, if a father says to the mother, “I am going to travel, and so-and-so has proposed to our daughter. When the time for the marriage comes, marry her to him; you are my agent,” this is not valid. A woman can never conclude a marriage contract, even in such a case, despite the fact that the prospective husband is known to, and approved by, the guardian. This is in order to block the means; otherwise, the underlying reason—that a woman is weak, quick to be swayed by emotion, and deficient in intellect and religion, and the like—does not apply here.

His statement, “The woman’s father takes precedence in marrying her off,” applies, for example, to a woman who has a father and a son who would inherit from her as a residuary heir if she died. The son takes precedence in matters of inheritance, but the woman’s father takes precedence in marrying her off, even over her male descendants. In the case of virgins, it is clear that the father takes precedence, since they have no children; and a brother cannot possibly have greater entitlement than the father, for his relation is through him. As for previously married women, the father takes precedence over the son;