(Series of Answers by the Eminent Scholar Ata Bin Khalil Abu Al-Rashtah, Ameer of Hizb ut-Tahrir, to the questions of his Facebook followers)
Answer to Question
It is Permissible in the Offer and Acceptance of a Marriage Contract for One to be in the Past Tense and the Other in the Future Tense
To: Aseel Mahmoud Abu Al-Khair
Question:
Assalamu Alaikum...
We would like you to clarify a point in the book The Social System in Islam... which states that it is permissible in the offer (Ijab) and acceptance (Qabul) of a marriage contract for one of them to be in the past tense and the other in the future tense...
Answer:
Wa Alaikum Assalam Wa Rahmatullah Wa Barakatuh,
First: You are referring in your question to what was mentioned in the book The Social System in Islam (p. 120):
"Marriage is concluded by a Shar’i offer (Ijab) and acceptance (Qabul). The offer is what is first issued from the speech of one of the two contracting parties, and the acceptance is what is second issued from the speech of the other party. For example, the woman being proposed to says to the suitor, 'I marry myself to you,' and the suitor says, 'I have accepted.' Or the opposite. Just as the offer and acceptance can be directly between the two parties, it is also valid between their proxies (wakils), or between one of them and the proxy of the other. It is a condition for the offer to be in the wordings of tazwij (marrying) or nikah (marriage), while this is not a condition for the acceptance. Rather, the condition for acceptance is the other party's consent to this offer, using any wording that indicates consent and acceptance of the marriage. The offer and acceptance must be in the past tense, such as 'I have married' (zawwajtu) and 'I have accepted' (qabiltu), or one of them in the past tense and the other in the future tense. This is because marriage is a contract ('aqd), so it must use a wording that signifies certainty (thubut), which is the past tense..." End quote.
Second: To ensure the answer is clear, I mention the following points:
- Contracts in Islam must use wordings in the offer and acceptance that signify certainty (thubut) and obligation (luzum) for the two contracting parties:
The wordings that signify this are those in the past tense (maadi). If you say قام فلان it means the act of standing has definitely occurred...
As for the present/future tense (mudari'), it does not signify the complete occurrence of a thing, but rather the beginning of the occurrence now or in the future. This is because the mudari' form signifies the present and the future. If you say يقوم فلان the act of standing has not been completed; either he has started to stand but not finished, or he is preparing to stand but has not stood yet... However, if the prefixes seen or sawfa are added to the mudari', the meaning becomes specifically for the future...
As for the imperative form (amr), it refers to the future. If you say قم يا فلان it is clear that he has not stood yet. Therefore, linguists say about the imperative that it "is purely for the future" (yatamahhadu lil-istiqbal). These forms and their indications are established in books of language...
It was mentioned in the explanation of the Ajurrumiyyah by Professor Abdul Karim Al-Khudair, regarding the text of Ibn Ajurrum (died 723 AH): (Speech is: the composed, meaningful utterance by convention. Its divisions are three: the noun (ism), the verb (fi'l), and the particle (harf) that conveys a meaning.) Then it was mentioned in the explanation: "The noun is a word that indicates a meaning not linked to time. The verb is a word that indicates a meaning or an event linked to time; if the time has passed, it is the past tense (maadi); if it is in the present or future, it is the mudari' (present/future tense); and if it is purely for the future, it is the amr (imperative). The particle is that which its meaning is not clear except with something else..."
Third: Based on the indications of the aforementioned verb forms and applying them to contracts, specifically marriage contracts which are the subject of the question, the following becomes clear:
Since contracts in Islam require certainty and obligation for the contracting parties, and this is available in the past tense as we mentioned, marriage is concluded with an offer and acceptance in the past tense. For example, the father says, "I have married my daughter to you," and the husband says, "I have accepted her marriage"... Thus, the marriage is concluded.
Marriage is not concluded with an offer and acceptance in the present/future tense if accompanied by the prefixes seen or sawfa, because the indication of the mudari' in this case, as we said, is "not now, but rather like a promise for the future." It does not signify certainty and obligation, and thus the marriage is not concluded in this case... If a father says, "I will marry my daughter to you," and the man says, "I will marry her," no marriage is concluded by this.
If the offer and acceptance are in the mudari' form (without seen or sawfa) or in the imperative form... then based on what we mentioned—that the mudari' is used for "the present and future" and the imperative is "purely for the future"—and because the indication of the future does not signify certainty and obligation but is more like a promise to complete the matter in the future, stable and binding contracts like marriage are not concluded with the future tense. Therefore, the mudari' and the imperative require a contextual indicator (qarinah) that diverts the meaning to the present and removes the possibility of the contract being completed in the future, making it happen immediately. This qarinah is for one of the two wordings (the offer or the acceptance) to be in the past tense, such as:
a- The guardian (wali) says to the husband, "I have come to marry my daughter to you" (using mudari'), and the husband replies, "I have accepted her marriage" (using maadi). The marriage is concluded even though the offer was in the mudari', which carries meanings of both present and future... but since the acceptance was in the past tense, the meaning is specified that the completion of the contract is immediate and not a promise for the future.
b- Or the wali says to the husband: "Marry my daughter" (using amr), and the husband says: "I have accepted her marriage" (using maadi)... The marriage is concluded even though the offer was in the imperative form, which linguists call "purely for the future"... but because the acceptance was in the past tense, the meaning is specified that the completion of the contract is immediate and not a promise for the future.
Fourth: This is the meaning of what was mentioned in The Social System: (The offer and acceptance must be in the past tense, such as 'I have married' and 'I have accepted', or one of them in the past tense and the other in the future tense, because marriage is a contract, so it must use a wording that signifies certainty, which is the past tense). That is, if both the offer and acceptance are not in the past tense, and the mudari' or imperative is used in one of them, then the second must be in the past tense. This is because marriage is a contract, so it must use a wording that indicates certainty, which is the past tense.
I hope this is sufficient. Allah is Most Knowing and Most Wise.
Fifth: For further benefit, I mention some of what the jurists (fuqaha) have said on the subject:
- It is mentioned in Al-Hidayah fi Sharh Bidayat al-Mubtadi (p. 185) of Hanafi jurisprudence by Ali al-Farghani Abu al-Hasan Burhan al-Din (died 593 AH) in the chapter of Marriage:
"He said: Marriage is concluded by offer and acceptance with two words expressing the past tense... And it is concluded with two words, one of which expresses the past and the other the future, such as saying 'Marry me' and he says 'I have married you'..."
- It is mentioned in Al-Hawi al-Kabir (9/162) in Shafi'i jurisprudence, which is an explanation of Mukhtasar al-Muzani by Abu al-Hasan Ali, known as al-Mawardi (died 450 AH), regarding the non-conclusion of marriage using the future tense in offer and acceptance:
"Section: As for its contract with the future wording, an example is: the guardian says: 'I (will) marry my daughter to you' and the husband says: 'I (will) marry her.' The contract is not valid with the statement of the guardian nor with the statement of the husband, because the statement of each of them is a promise of a contract and not a contract... and if the husband started and said to the guardian: 'I (will) marry your daughter' and the guardian said: 'I (will) marry her to you,' the contract would not be valid with the statement of either of them, because the statement of each of them is a promise of a contract and not a contract..."
- It is mentioned in Minhaj al-Talibin wa 'Umdat al-Muftin by Abu Zakariyya Muhyiddin Yahya bin Sharaf al-Nawawi (died 676 AH) - (p. 205):
"Marriage is only valid with an offer, which is 'I have married you' or 'I have given you in marriage,' and an acceptance by the husband saying 'I have married' or 'I have wedded' or 'I have accepted her marriage.' It is valid for the husband's wording to precede the guardian's, and it is only valid with the words of tazwij or nikah... If he says 'Marry me' and he replies 'I have married you,' or the guardian says 'Marry her' and he says 'I have married (her),' it is valid." End quote.
I mention some of the explanations of Al-Minhaj:
a- It is mentioned in Mughni al-Muhtaj ila Ma'rifat Alfadh al-Minhaj by Shams al-Din Muhammad al-Khatib al-Shirbini al-Shafi'i (died 977 AH) - (12/99):
" (If) the suitor (says) to the guardian (Marry me) your daughter etc. (and) the guardian (says) to him (I have married you) etc. (or the guardian says) to the suitor (Marry her), i.e., my daughter etc., (and) the suitor (says) (I have married) etc., (the marriage is valid) in both cases."
b- It is mentioned in Nihayat al-Muhtaj ila Sharh al-Minhaj by Shams al-Din bin Hamza Shihab al-Din al-Ramli (died 1004 AH) - (6/213):
" (And if) (the husband says) to the guardian (Marry me your daughter and the guardian says I have married you) my daughter to the end (or) (the guardian says) to the husband (Marry her) i.e., my daughter (and the husband says I have married) her to the end (the marriage is valid) in both cases because of the decisive request indicating consent."
- It is mentioned in the Kuwaiti Encyclopedia of Jurisprudence (41/238):
"The indication of the form on time and its effect on the contract:
- The jurists have gone to the view that marriage is concluded by offer and acceptance in the past tense, such as the guardian saying to the husband: 'I have married my daughter to you' or 'I have given her to you in marriage,' and the husband says: 'I have accepted her marriage...'
And marriage is concluded with an offer in the imperative form, such as the guardian saying to the husband: 'Marry my daughter' and the husband says: 'I have married her' (Nihayat al-Muhtaj)."
- It is mentioned in Al-Fiqh al-Islami wa Adillatuhu by Al-Zuhayli (9/6528):
"In summary: Marriage is not concluded according to the Shafi'is except in the past tense and from the roots of zawaj and nikah. It is concluded according to the Malikis and Hanafis in the past, present/future, and imperative, if the context or the circumstantial indication shows it is for an offer and not for a promise.
According to the majority (jumhur) excluding the Hanbalis, it is not a condition for the offer to precede the acceptance, rather it is recommended, such as the guardian saying: 'I have married her to you.' The Hanbalis said: if the acceptance precedes the offer, it is not valid, whether it is in the past tense: 'I have married,' or in the request form: 'Marry me'."
I have mentioned the previous matters for further benefit, if Allah wills.
Your brother, Ata bin Khalil Abu Al-Rashtah
06 Safar 1440 AH Corresponding to 15/10/2018 CE
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