on a basic principle, namely: is a stipulated option to rescind a sale valid in principle, or is it invalid in principle, with a three-day option permitted as an exception?
The first is the position of the leading jurists Mālik, Ahmad, Ibn Abī Laylā, Abū Yūsuf and Muhammad. The second is the position of Abū Hanīfah and al-Shāfi‘ī. For this reason, the latter two deemed an option to rescind invalid in most contracts, including marriage and other contracts. Likewise, there are three positions on making a marriage conditional upon a future event, corresponding to three narrations from Ahmad.
The jurists of the schools of al-Shāfi‘ī and Ahmad distinguish, in marriage, between a stipulation that terminates the contract, such as divorce, and other stipulations, such as stipulating that there will be no dower, no intercourse or no allocation of nights. Within Ahmad’s school, there is disagreement concerning a stipulation excluding the dower and similar stipulations.
The correct view is that, if a stipulation is permissible, it is binding and must be fulfilled. If it is not fulfilled, the right to rescind is established—as when a particular kind of property or currency is stipulated as the dower. The marriage may not be deemed binding despite failure to fulfil the stipulation. Rather, the party who imposed it must be given the choice between allowing the marriage to stand and rescinding it, just as with stipulations in a sale and with defects. There is consensus that a purchase may be returned on account of a defect; according to the majority, the same applies to rescinding a marriage.
A group of Medinan jurists and others said that a marriage to a free woman cannot be rescinded on account of a defect. They maintained that marriage does not admit rescission, and therefore allowed it to be rescinded neither on account of a defect nor on account of a stipulation. Yet they, together with all other Muslims, require a husband who has sworn to abstain from marital relations either to resume those relations or to divorce his wife. They say: