Their disagreement here arises from pitting the general wording of the texts against the dictates of analogy. The Prophet—peace and blessings be upon him—said, “The virgin is consulted, and her silence is her consent.” This statement is general, applying to every virgin except the one whose father is alive, whom the consensus—aside from the lone dissent already cited—has excluded. Because every other guardian is likewise assumed to act with insight and in the ward’s best interest, some scholars deemed that they, too, should be placed on the same footing as the father: some extended the ruling to all guardians, while others restricted the extension to the paternal grandfather alone, viewing him as a ‘higher’ father; this is the position of al-Shāfiʿī.

Those who confined the privilege to the father argued that what belongs to him in this respect is not found in anyone else—either because the Law has singled him out, or because the compassion and mercy instilled in him are unmatched by others. This is the view of Mālik—may Allah be pleased with him—and it appears the stronger opinion, Allah knows best, except in cases of necessity.

The Ḥanafīs cited as proof for allowing someone other than the father to arrange the marriage of minors the divine words, “And if you fear that you will not deal justly with the orphans, then marry such women as seem good to you” (Q 4:3), contending that the term ‘orphan’ applies only to one who has not reached puberty.

The second group replied that the word ‘orphan’ can also refer to a pubescent girl, adducing the Prophet’s statement—peace and blessings be upon him—“The orphan girl is to be consulted.” One who is consulted must be capable of granting permission and is therefore an adult. Thus their divergence has an additional cause: the shared use of the word ‘orphan.’

Those who forbid anyone other than the father to contract her marriage also argued from the ḥadīth, “The orphan girl is consulted regarding herself.” They said: a minor girl is, by unanimous agreement, not among those who can be consulted, so the prohibition remains.

The others may reply: That ruling concerns an orphan girl who is qualified to be consulted, whereas the pre-pubescent girl is not addressed by the text.

As to whether a guardian other than the father may marry off a minor boy: Mālik allowed it for the executor (waṣiyy); Abū Ḥanīfah allowed it for all guardians but required that the boy be given the option to confirm or annul the marriage upon reaching puberty, while Mālik imposed no such condition. Al-Shāfiʿī held that no one besides the father may do so.

The root of their disagreement is whether the non-father guardian can be analogically equated with the father. Whoever holds that the discretionary judgment found in the father—by virtue of which he may marry off his minor child—is absent in others, disallows it. Whoever sees that quality present permits it. One who distinguishes between a minor boy and a minor girl does so because, once pubescent, a man holds the right of divorce whereas a woman does not; hence Abū Ḥanīfah granted both of them the option when they come of age.

The Third Issue: May a marriage contract be concluded with an option clause?

Regarding this third issue, the majority maintain that it is not permissible, whereas Abū Thawr deems it permissible.

Their disagreement stems from the fact that marriage occupies a middle ground between sales in which an option is forbidden and sales in which it is allowed. Alternatively, one may say that the default in contracts is the absence of an option unless a textual proof establishes it, and the burden of proof lies on the one claiming the option. Or again, one might say that the basic reason for prohibiting options in sales is the presence of uncertainty (gharar), while marriages involve no such uncertainty: their purpose is honor, not bargaining, and the need for an option and prior inspection is even more acute in marriage than in sales.

The Fourth Issue: A delay between offer and acceptance in the marriage contract

As for a lapse between the acceptance of one party and the offer itself, Mālik allowed it in