The well-known position.

It has also been said that an unspoken, purely intentional exception is effective only with the particle illā (“except”)—that is, with what the word illā itself signifies—and that it brings no benefit when connected to any other particle. This distinction, however, is weak.

The reason for the disagreement is this: Do binding transactions become effective by intention alone, without any utterance, or is the concurrence of both wording and intention required, as in divorce, manumission, oaths, and the like?

The second issue concerns whether a newly formed intention, arising after the oath has been completed, can validly introduce an exception. One opinion in the school says that it is effective provided it occurs immediately after the oath. A second view stipulates that it must arise before the oath’s wording has been fully pronounced. A third view holds that exceptions are of two kinds: (1) an exception from a specific number, and (2) an exception from a general or absolute statement through specification or qualification. For the first kind, the intention must precede the oath’s utterance; for the second, it suffices that the intention occur after the oath, so long as the exception is verbally linked to it.

Their divergence rests on whether an exception is a factor that prevents the contract from taking effect or a quality that modifies it. If it is a preventive factor, the intention must be present at the very start of the oath; if it is a modifying quality, that is unnecessary. ʿAbd al-Wahhāb denied any requirement that the intention be present at the outset, asserting consensus to that effect and claiming that an exception is a quality of the oath, just like expiation.

SECTION TWO OF PART ONE
On determining which oaths are affected by an exception and which are not

The jurists have differed over the oaths in which attaching the phrase “if Allah wills” takes effect and those in which it does not. Mālik and his associates maintain that the clause of Divine will is effective only in oaths that require expiation—namely, an oath sworn by Allah’s Name, or an unrestricted vow, as will be discussed. Regarding divorce and manumission, the exception may be attached either to the bare formula of divorce or manumission alone, such as saying, “She is divorced, if Allah wills,” or “He is free, if Allah wills”—formulas that, in their view, do not constitute an oath—or else to a divorce or manumission suspended upon a condition, such as saying, “If such-and-such happens, she is divorced, if Allah wills,” or “If such-and-such happens, he is free, if Allah wills.”

For the first category there is unanimous agreement within the school that the clause of Divine will has no effect. As for the second—namely, an oath by divorce—there are two opinions. The sounder of them is that if the exception is directed to the condition upon which the divorce is suspended, it is valid; if it is directed to the divorce itself, it is invalid.

Abū Ḥanīfah and al-Shāfiʿī hold that the exception is operative in all these cases, whether it is attached to wording framed as a condition or to wording framed as a simple assertion.

The root of the disagreement is what we have already mentioned: Is the exception a modifying quality or a preventive factor? If we regard it as a preventive factor and it is coupled with the bare wording of divorce, it has no effect, because the divorce has already taken place—in other words, when a man says to his wife, “She is divorced, if Allah wills,” for a preventive factor can operate only with respect to what has not yet occurred, namely the future. But if we say it is