then he has performed them in their proper time; for the Almighty says,

“Fasting three days during the pilgrimage…” (Qur’an 2:196),

and there is no disagreement that the first ten days of Dhu’l-Ḥijjah are counted among the days of ḥajj.

They differed, however, about one who fasts those three days during the days of ʿumrah before entering the state of consecration for ḥajj, or who fasts them during the days of Minā. Mālik allowed fasting them in the days of Minā, whereas Abū Ḥanīfah disallowed it, saying, “If he has missed the initial days, a sacrificial animal (hady) remains due from him.” Mālik, on the other hand, prohibited fasting them before beginning the rites of ḥajj, while Abū Ḥanīfah permitted it.

The root of the dispute is whether the legal term “ḥajj” applies to those contested days; and, if it does, whether it is a condition of the expiation that it be offered only after its cause has actually arisen. Whoever said that no expiation is valid until after the liability is incurred held that fasting is not acceptable unless it is done after embarking upon the pilgrimage. Whoever analogised the matter to the expiation for broken oaths held that it is acceptable.

All agree that if he fasts the seven days while back among his family, the requirement is met; they differed, though, about fasting them on the journey home. Mālik said that such fasting is sufficient, whereas al-Shāfiʿī said that it is not.

The reason for the disagreement is the ambiguity in His words, exalted is He,

“when you return” (Qur’an 2:196):

the term “returning” may denote one who has completed his return or one who is still in the very act of returning.

This, then, is the expiation established by revealed text, and it is universally acknowledged.

There is likewise no dispute that anyone whose pilgrimage lapses after he has entered upon it—whether by missing a pillar, making a mistake in timing, acting out of ignorance or forgetfulness, or performing during ḥajj an act that nullifies it—must repeat it if the pilgrimage was obligatory. Whether he must also offer a sacrificial animal is contested, and, if the pilgrimage was voluntary, whether he must repeat it at all is also disputed. The majority hold that he must offer a hady because the deficiency incurred indicates its obligation.

A minority dissented, saying that there is neither sacrifice nor repetition unless the pilgrimage in question was obligatory.

Among the rulings peculiar to the invalidated pilgrimage, according to the majority and unlike other acts of worship, is that the pilgrim who has nullified it continues with it, does not abandon it, and must offer a blood-offering. Another group dissented, assimilating it to the other acts of worship.

The principal evidence of the majority is the plain sense of His words:

“Complete the pilgrimage and the ʿumrah for Allah.” (Qur’an 2:196)

Thus the majority took the verse in its full generality, whereas their opponents restricted it by analogy to other acts of worship when invalidators befall them.

They agree that what invalidates the pilgrimage may arise either from neglecting a commanded act—namely, omitting a pillar whose performance is a condition of validity, though they differ about which acts are pillars—or from committing a prohibited act. Among the latter is sexual intercourse, even though they differ about the point in time at which intercourse becomes nullifying.

Statement on the expiation for intercourse during the pilgrimage

Their consensus that intercourse invalidates the pilgrimage rests on His words, exalted is He,

“Whoever undertakes the pilgrimage during them must abstain from sexual relations, wrongdoing, and dispute during the pilgrimage.” (Qur’an 2:197)

They also agree that whoever has intercourse before standing at ʿArafah has invalidated his pilgrimage, and likewise anyone performing ʿumrah who has intercourse before completing ṭawāf and saʿy.

They differ, however, about the effect of intercourse after standing at ʿArafah but before pelting the Jamrah of al-ʿAqabah, and after the stoning but before the obligatory ṭawāf al-ifāḍah. Mālik said: whoever has intercourse before pelting the Jamrah of al-ʿAqabah