That brief lapse was the subject of disagreement—some jurists forbade it, while others permitted it. A typical case is when a guardian marries a woman off without her prior consent; once the contract reaches her, she endorses it. Al-Shāfiʿī prohibited such a delay absolutely, whereas Abū Ḥanīfah and his associates allowed it without qualification. Mālik, for his part, distinguishes between a lengthy interval and a short one.
The crux of the dispute is whether simultaneous acceptance by both contracting parties is itself a condition for the contract’s conclusion, or whether simultaneity is not required. The same divergence appears in the law of sales.
Second Pillar: the conditions governing the marriage contract
This pillar comprises three chapters:
- Guardians
- Witnesses
- The bridal-gift (ṣadāq)
Chapter One: Guardians
The discussion of guardians is explored under four headings:
- Whether guardianship (wilāyah) is a prerequisite for the validity of a marriage.
- The qualifications of the guardian.
- The categories of guardians, the order in which they are entitled to act, and the rulings that attach to that.
- Cases in which guardians obstruct those under their care, and the ruling when a dispute arises between guardian and ward.
First Heading: Is guardianship a condition for a valid marriage?
The scholars have differed: is guardianship one of the conditions for the validity of the marriage contract, or not? Mālik holds that no marriage is valid without a guardian and, in the narration of Ashhab, declares guardianship a condition of validity; al-Shāfiʿī takes the same position. By contrast, Abū Ḥanīfah, Zufar, al-Shaʿbī, and al-Zuhrī maintain that if a woman contracts her own marriage without a guardian, and the groom is her equal, the contract is valid.
Dāwūd al-Ẓāhirī distinguishes between a virgin and a woman who has been previously married, requiring a guardian for the former but not for the latter. A fourth opinion may be inferred from the narration of Ibn al-Qāsim from Mālik: that requiring a guardian is Sunnah rather than obligatory. It is reported from Mālik that he deemed spouses to inherit from one another even when the marriage was concluded without a guardian; that a woman of non-noble lineage may appoint any man she chooses to conclude her marriage; and that he recommended—but did not obligate—that a previously married woman present her guardian to contract on her behalf. Thus, in his view, guardianship is a condition of completeness, not of validity—unlike the Baghdādī Malikis, who regard it as a condition of validity and not merely of completion.
The cause of their disagreement is that no Qur’anic verse or Prophetic Sunnah explicitly—let alone unequivocally—stipulates guardianship as a requirement for marriage. The passages and traditions customarily cited by those who require it admit multiple readings, and the same is true of the evidence advanced by those who do not; the ḥadīths likewise