in the merchandise before possession can be taken: it gives grounds for rescission but does not invalidate the contract. This is what the fundamental principles, scriptural texts and analogical reasoning entail.

If a stipulation is invalid and the person who made it was unaware of its invalidity, the contract is not binding upon him. Rather, he may accept it without the stipulation; otherwise, he has the right to rescind. This is the governing principle. As for binding him to a contract to which he did not consent and which the Lawgiver did not oblige him to conclude, this contradicts the fundamental principles of Islamic law and the justice that Allah sent down the Book and sent the messengers to establish.

They have adopted the principle that a marriage to a free woman cannot be rescinded on account of a defect. They say: “Thus, marriage cannot be rescinded because a stipulation goes unfulfilled, since the two belong to the same category.” They also say: “Marriage is valid without specifying a dower, so it is valid when the dower is expressly excluded, and therefore valid with any invalid stipulations.”

That marriage is valid without a specified dower is established by the Book, the Sunnah and scholarly consensus. However, if he believes that no dower is obligatory, the dower due by default is the customary dower of comparable women. As for expressly excluding it, there are two views within the school of Ahmad and elsewhere. The view that the marriage is invalid is that of most of the early generations, as reflected in the school of Mālik and elsewhere. This is the correct view, as indicated by the Book, the Sunnah and the hadith on exchange marriage.

They say: “Thus, the distinction between marriage and sale is established in these two respects: there is no rescission when a valid stipulation goes unfulfilled, and the contract remains valid despite an invalid stipulation.”

The reply is: