Terms of concluding a contract (2)
They are the considerations that should be taking into account in the pillars of the marriage contract (which are the two contracting parties and the form). So, if any of these conditions is not available, the contract will be void, and they are as follows:
• The contracting parties must be sane, so insane and minors cannot conclude a marriage contract.
• A woman should not be permanently prohibited to marry the man.
• There should be no violation to the form of marriage such as: the form should be explicit (by the wordings of marriage and words that are derived from it) or by using a figure of speech providing that having the intention of marriage, such as: (gift, possession, charity, and dowry), both contracting parties should listen the words of the other party, offer and acceptance should be done in one session, and a husband and a wife should be known.
Conditions of validity (3)
They are the condition that should be available to make the contract valid and the following procedures are effective, otherwise the contract shall be corrupt. The conditions of validity come after ascertaining the conditions of the contract and after the availability of the conditions set for concluding the contract; these conditions are:
1- Having witnesses at the time of the contract by the testimony of two men or a man and two women who are sane, free, adult, and Muslims. It is valid that the father, the grandfather, the children, and the grand children to witness the marriage as well as the dissolute (4) even though the testimony of those can conclude a marriage contract but their testimony cannot prove marriage at the time of denial; their testimony can benefit in divorcing a wife according to the Shari`ah but not according to the judicial system. Marriage has two cases: The case of concluding marriage in which the testimony of a dissolute, the son, and the father is accepted. The case of affirmation when there is a denial but in this case their testimony shall not be valid because witnesses should have the same conditions of the usual witnesses.
2- Neither of the spouses should be forced.
3- The marriage should not be timed.
The conditions of effectiveness:
They are the conditions which are needed to make the marriage effective and not depending on the permission of anyone after its validity.
1- Both contracting parties should be sane and adult, but if they are not adult or one of them is grown up enough and he or she concluded the contract by himself, the contract is concluded by his statement except if it depends on the permission of the guardian, and if he permitted the contract, it will be valid and effective. (5)
2- Each of the contracting party can conclude the marriage or has a right to conclude the marriage, such as one of the spouses, his representative, or his guardian. If one of the contracting parties is a non-related third party, or a representative but is not authorized to conclude the marriage contract, such as concluding marriage to another woman, or was a guardian but there is another closer guardian, the contract shall be invalid. (6)
Conditions of immanence:
They are the conditions upon which the contract and its continuity depend. In other words, none of the spouses or others has the right to break the contract after its conclusion, validity, and effectiveness; such as:
1- The contracting person for the one who lacks competence (the insane), minor boy, or those who lack competence such as half-insane, and the grown up boy is the father or the grandfather. In this case, the contract will be incumbent and the contracting parties have no choice when reaching puberty or when becoming sane unless the father and the grandfather are known before concluding the contract with bad opinions and bad choice.
2- If the husband is incompetent and one of the woman's guardian refuses the contract, he has the right to nullify it. This is if the guardians keep silent until she begets or becomes pregnant because the right of pregnancy has priority over their right. (7)
3- Both spouses should be free of the defects that nullify the contract. (8)
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1- We mentioned it because some Arabic laws depend on it in the judicial system.
2- See: Bada'i` As-Sana'i` 2/233, Al Fatawa Al Hindiyyah 1/267, Al `Inayah Sharh Al Hidayah 4/316, and Al Fiqh `Ala Al Madhahib Al Arba`ah 4/11.
3- See: Tabyin Al Haqa'iq 2/97, Bada'i` As-Sana'i` 2/239 and 253, Al `Inayah Sharh Al Hidayah 4/320 and 394, Al Mabsut 5/173, and Al Fiqh `Ala Al Madhahib Al Arba`ah 4/13, Rad Al Muhtar 9/231, and the Kuwaiti Islamic Jurisprudence Encyclopedia 41/248.
4- It was previously mentioned in the fourth pillar that the majority of scholars stipulate masculinity and uprightness and the witnesses should not be from the parents and grandparents nor the children and their grand children.
5- Bada'i` As-Sana'i` 2/233,
6- See: Bada'i` As-Sana'i` 2/233 and 249 and Tabyin Al Haqa'iq 2/132.
7- See: Al `Inayah Sharh Al Hidayah 4/441, Bada'i` As-Sana'i` 2/249, and Tabyin Al Haqa'iq 2/128
8- Al Mabsut 5/173.
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