he has two men witness the marriage and instructs them to keep it secret. One opinion holds that this constitutes secret marriage and must be annulled before or after consummation, unless a long time has elapsed since consummation, in which case it is not annulled and the stipulated dower is due. This is the well-known position of the school. Another opinion holds that the marriage is valid and free of defect, and is upheld both before and after consummation. The witnesses are instructed to make the marriage public and forbidden to conceal it. This was the position adopted by Yahyā ibn Yahyā. Success comes from Allah, glorified and exalted is He.
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Marriage is among the binding contracts that become binding upon conclusion. Neither spouse has the option of dissolving it after the contract has been concluded, just as with sale and other binding contracts. Marriage, however, proceeds on a basis of generosity, so it permits a degree of uncertainty that is not permitted in a sale. Examples include marriage in return for a slave whose attributes have not been specified, household furnishings, and similar things that are impermissible in a sale but permissible as a dower. This is also why marriage without a specified dower is permissible. Do you not see that a gift given in expectation of recompense, being based on generosity and kindness rather than bargaining, is permissible without specifying the recompense? An additional sound reason for permitting marriage without a specified dower has already been given, which I have not seen advanced by any of my predecessors.
Mālik—may Allah Most High have mercy on him—said: “The contract most closely resembling sales is marriage.” It resembles sale in some respects but differs from it in most circumstances. Regarding the dower, marriage allows greater latitude than sales; regarding the conclusion of the contract, it is more restrictive. Do you not see that, according to the well-known position of the school, a marriage contracted in jest is treated as serious? It has also been related from Mālik—may Allah have mercy on him—that a marriage contracted in jest remains a jest and is binding only if contracted seriously. This is Abū Zayd’s narration from Ibn al-Qāsim. Moreover, if a man asks another to marry him to his ward for such and such an amount, and the latter replies, “I have done so,” but the suitor then says, “I do not agree,” the marriage is binding upon him according to a single, undisputed position, unlike sales. Nor is an option to rescind permissible in marriage as it is in sales. There are many similar examples.
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Marriage is concluded using the words nikāh (marriage) or tazwīj (giving in marriage). It is not concluded using wording for other contracts, with the exception of a gift: there are two opinions on whether marriage can be concluded using that wording. The first is