And as for “shighār” (exchange marriage), he and many of his followers, such as al-Khallāl and Abū Bakr ʿAbd al-ʿAzīz, explained its prohibition by the absence of a dower and by making the right to marital relations with one woman the dower for the other. This is also the explanation given by Mālik’s followers. Many of his followers, however, offered the same explanation as al-Shāfiʿī’s followers.

An objection remains: when an invalid stipulation is included, the contracting party should therefore be given the choice between accepting the contract without it and rescinding the contract, just as with invalid stipulations in a sale.

The answer is: if we say that marriage can be contracted only through the formulas of giving in marriage or marrying, since these are its explicit expressions, and that it cannot be contracted through indirect expressions—as Abū Hāmid, Judge Abū Yaʿlā and their followers among Ahmad’s adherents maintain, in agreement with al-Shāfiʿī’s followers—and we also say that a sale, unlike marriage, admits a stipulated option to rescind, then the distinction becomes clear. A sale can be concluded on a nonbinding basis, whereas marriage cannot.

Those who deem marriages arranged to make a woman lawful again for her former husband and exchange marriages, or similar arrangements, valid may say: “We do not deem valid what the Prophet, may Allah bless him and grant him peace, prohibited. We do not uphold such a marriage while it remains an exchange marriage, a marriage arranged to permit remarriage to a former husband, or a temporary marriage. Rather, we invalidate the stipulation making the marriage contract itself the dower, and we invalidate the stipulation concerning remarriage to the former husband. The same applies to the stipulation fixing a term, according to those who hold this view. The contract then remains binding, without being an exchange marriage or a marriage arranged to permit remarriage to a former husband.”

For this reason, according to one of their two views, Abū Hanīfa’s followers held that a marriage arranged to make a woman lawful again for her former husband is valid, but does not make her lawful for the man who divorced her three times. This gives effect to the Prophet’s words:

“Allah has cursed the man who marries a woman to make her lawful for her former husband, and the man for whom this is done.”

They uphold the marriage only while invalidating the stipulation concerning remarriage to the former husband. It therefore becomes a binding marriage, and they do not deem her lawful