Chapter Two: The Requisites for the Validity of Marriage

First Pillar: The Manner of Concluding the Marriage Contract

Section One: The Form of Consent by Which the Marriage Is Concluded

This chapter is divided into three pillars:

Pillar One: Understanding how the contract is concluded.
Pillar Two: Knowing the subject-matter to which the contract applies.
Pillar Three: Knowing the conditions that govern the contract.

Pillar One concerns the manner of contracting, and its study embraces several issues: the form of the consent that brings the contract into effect; whose approval renders the contract binding; whether the contract may be concluded with an option of rescission or not; and whether a delay between offer and acceptance on the part of either contracting party affects its validity, or whether immediacy is required.

Section One
Consent in marriage is of two kinds. For men and for women who have previously been married, consent is expressed verbally; for virgins whose permission must be sought, consent is conveyed by silence—that is, by tacit approval—whereas rejection must be voiced. There is no disagreement on this principle except what is reported from the Shāfiʿīs: if the guardian is other than the father or grandfather, a virgin’s permission must be verbal.

The majority hold that her silence suffices on the strength of the ḥadīth of the Prophet—may blessings and peace be upon him—: “A previously married woman has greater right over herself than her guardian, and a virgin is consulted concerning herself, and her consent is her silence.”

The jurists unanimously agree that the marriage contract is valid, where verbal consent is required, if it is concluded with the wording “nikāḥ” (marriage) or “tazwīj” (marrying off). They disagreed, however, about concluding it with the wording of “grant” (hibah), “sale,” or “charity.” Some scholars, among them Mālik and Abū Ḥanīfah, deemed it permissible, whereas al-Shāfiʿī maintained that it is not valid unless the words “nikāḥ” or “tazwīj” are used.

The root of their disagreement is whether marriage is a contract for which, alongside intention, a specific wording is required, or whether its validity does not hinge on any particular wording. Those who likened it to contracts that demand both elements said, “No marriage is concluded except with the words ‘nikāḥ’ or ‘tazwīj.’” Those who regarded specific wording as unnecessary—drawing an analogy with contracts in which wording is not a condition—allowed the marriage to be concluded with any expression, provided the legal intent is understood, that is, provided the wording conveys a meaning akin to the meaning recognized by the Sharīʿah.

Section Two: Whose Acceptance Is Considered for the Bindingness of the Marriage Contract

As for whose approval is required for the validity of the contract, the Sharīʿah presents two categories:

1. Cases in which the consent of the two parties themselves—the husband and the wife—is required, either together with a guardian or without one, according to the view that does not stipulate a guardian for a woman who has authority over her own affairs.

2. Cases in which only the guardians’ consent is considered.

Within each of these two categories there are issues over which the jurists agreed and issues over which they differed. We shall outline their guiding principles and basic rules and say:

As for adult men