for her former husband; because if she becomes lawful for him, the marriage will have been intended to make her lawful for him. If, however, the marriage does not make her lawful for him, it will not be intended for that purpose, and thus will not be a marriage arranged to permit remarriage to her former husband. According to this view, a man would marry the woman only out of a genuine desire for marriage, not to make her lawful for her former husband.

If he marries her with that intention, or stipulates that purpose, but both subsequently desire a genuine marriage and abandon the stipulation concerning remarriage to her former husband, must they conclude a new contract, or is retaining the original contract sufficient? There is disagreement on this. It resembles the question of abandoning an invalid stipulation in a sale: does the sale thereby become valid or not? Here, too, intention is involved.

A similar question arises when someone concludes a contract without the permission of a person whose permission is required: is the contract void, or is its validity suspended pending approval? There are two well-known views, both held within Ahmad’s school. The first is that the contract is void and is not held in suspense, as al-Shāfiʿī maintains. The second is that it remains suspended pending approval, as Abū Hanīfa and Mālik maintain.

Thus, if someone concludes a contract with an invalid intention or an invalid stipulation, one might say that the same two views concerning suspension apply. Whoever accepts suspension would make its validity contingent upon removing the invalidating factor; whoever does not would not. Removing an impediment is equivalent to establishing the requisite cause. Making a contract contingent upon the fulfilment of some of its conditions is comparable to making it contingent upon the removal of some of its impediments. . . . (1)

For by deeming him a husband who divorces her, while holding that the marriage binds her, you have bound her to a marriage to which she did not consent. This contradicts the established principles and the scriptural texts. The soundest view in this matter is that the decision rests with her. If she accepts him without that stipulation, he is her husband, and no new contract is needed. If she does not accept him, he is not her husband, just as with a marriage whose validity is suspended pending her approval. The same applies to a marriage