Issue One
If the stated dowry consists of wine, pork, fruit whose quality is not yet evident, or a stray camel, the jurists differed:
• Abū Ḥanīfah held that the marriage contract remains valid, provided the wife is granted the customary dowry.
• From Mālik two reports are related:
- The contract is void and must be annulled, whether before or after consummation; this is also the view of Abū ʿUbayd.
- If consummation has already taken place, the marriage stands and the wife receives the customary dowry.
The root of their disagreement is whether marriage in this matter should be treated like a sale. Those who liken it to a sale say that an invalid dowry vitiates the marriage just as an invalid price vitiates a sale. Those who deny the analogy point out that mentioning a dowry at all is not a condition for a valid marriage; therefore the contract remains in force and is rectified by substituting the customary dowry. The distinction some make between consummation and non-consummation is weak. On the basis of Mālik’s legal principles one would differentiate between a dowry that is unlawful in essence and one that is unlawful because of some quality, by analogy with sales, though I do not now recall an explicit statement from him on the point.
Issue Two
They also disagreed when a sale is combined with the dowry—such as the wife handing over a slave while the husband pays one thousand dirhams, intending that amount to cover both the dowry and the price of the slave without specifying what portion is which.
• Mālik, Ibn al-Qāsim, and Abū Thawr declared this impermissible.
• Ashhab allowed it, and so did Abū Ḥanīfah.
• ʿAbd Allāh drew a distinction, saying that if what clearly remains as dowry after setting the purchase price is no less than a quarter-dīnār, the transaction is valid.
• Al-Shāfiʿī gave two opinions: in one he ruled it permissible, in another he obliged the customary dowry.
Again, the divergence turns on whether marriage in this context resembles a sale. Those who apply the rules of sales forbid it; those who permit a degree of ambiguity in marriage contracts that would be unacceptable in sales allow it.
Issue Three
The scholars also differed regarding a man who marries a woman on the condition that part of her dowry be a gratuity (ḥibāʾ) given to her father.
• Abū Ḥanīfah and his companions say the condition is binding and the dowry valid.
• Al-Shāfiʿī says the dowry clause is invalid, and the wife is entitled to the customary dowry.
• Mālik says: if the condition is made at the time of marriage, the benefit belongs to the bride; if it is made after the marriage, it belongs to the father.
The dispute once more hinges on whether the marriage contract should be analogized to a sale. Whoever likens it to an agent selling merchandise and stipulating a benefit for himself declares the marriage invalid just as the sale would be; whoever sees marriage as different from sale deems it permissible. Mālik’s distinction arises from the suspicion that, if the condition is inserted into the marriage contract, the father may be depriving his daughter of part of the dowry she deserves, a concern that does not apply once the marriage and dowry have already been settled.
Mālik’s position is also reported from ʿUmar ibn ʿAbd al-ʿAzīz, al-Thawrī, and Abū ʿUbayd.
Abū Dāwūd, al-Nasāʾī, and ʿAbd al-Razzāq transmit—through ʿAmr ibn Shuʿayb, from his father, from his grandfather—that the Messenger of Allah (peace and blessings be upon him) said:
“Any woman who is married on account of a ḥibāʾ granted before the marriage bond is secured, that ḥibāʾ is hers; whatever is given after the bond is secured belongs to the one who receives it. The most worthy thing upon which a man may be honored is his daughter or his sister.”
The ḥadīth of ʿAmr ibn Shuʿayb is, however, subject to scholarly disagreement.