Marriage III: Fuḍuli

Wiqayah

The marriage [contracted by] one fuḍūli (unauthorised person)1 or two fuḍūli will be pending permission. One person may become a representative for both parties in a marriage.2 One fuḍūli cannot [become a representative] from [both] sides.

Key terms

• Fuḍūli is a person who is not pre-authorised by the bride, groom, guardian (wali) or their representative (wakīl) to contract the marriage on their behalf.
• Wakīl is the person authorised by the bride, groom, or their guardian to contract the marriage on their behalf.
• Aṣīl refers to the person marrying specifically the bride or the groom.
• Wali refers to the person given authority to make decisions for or against on behalf of the bride or the groom.

Hidayah

ولو جرى العقد بين الفضوليين أو بين الفضولي والأصيل جاز بالإجماع

If the marriage [contract] was implemented by two fuḍūli (unauthorised persons) or a fuḍūli and an asīl (the person getting married), it is valid [albeit pending approval] in accordance to ijma.

[In the case where one fuḍūli acts on behalf of two people and gets them married without authorisation, Imam Abu Yusuf says that it is valid but pending and Shaykhayn say that it is invalid].

[Imam Abu Yusuf] says, if [one representative] was commanded by both parties,3 [nikah] would be implemented, so in the case of the fuḍūli [the nikah] would be pending [their permission]. This is like the case of khula’, talaq and freeing a slave in exchange for money.4

According to [Imams Abu Hanifah and Muhammad], only one part of the [marriage] contract is present.5 Because in the present condition there is only one part, the same will be case in the absent [condition].6 Part of a contract does not extend beyond the gathering as is in [the case of] sale.7

In contrast to a person authorised8 from both parties9 as his speech is attributed towards both parties. That which was implemented by two fuḍuli was a complete contract.10

Likewise, it is completed in khula’ and its sister [cases] as it is a pledge from his side which is binding.11

• 1The fuḍūli may represent the groom or the bride. (cf. Sharh Wiqayah)
• 2This applies to the following cases. Firstly, the person is both the groom and guardian (wali) such as the cousin takes his cousin sister in marriage. Secondly, the person is both the groom and the authorised representative such as a man takes his client in marriage. Thirdly, the person is the guardian (wali) from both sides such as grandfather gets his grandson in his charge married to his granddaughter in his charge. Fourthly, he is representative from both sides. Fifthly, he is the guardian from one side and the representative from the other side.
• 3From the side of the bride and groom
• 4If the husband in the absence of the wife where to say, “I do khula with my wife in exchange for £1000” or “I give my wife talaq in exchange for £1000”, when the wife finds out, if she accepts, divorce will occur. The same is the case if the master in the absence of the slave said, “I free my slave in exchange for £100”, and then when the finds out accepts offer. The point Imam Abu Yusuf is making with these examples is that an offer was made by the husband or the master but required the approval of the wife or slave. The offer was deemed pending until the wife or slave approved. The case is the same for the action of a fuḍūli in nikah.
• 5Only the offer occurred, and acceptance is absent as a single person cannot make both an offer and acceptance from their own side. Like in a sale, a person cannot be the buyer and the seller.
• 6As there was only the offer when the contract was initiate in the gathering, there will only be an offer without acceptance outside the gathering. An offer without acceptance cannot be accepted after the gathering in a marriage contract.
• 7Offer and acceptance must happen in the same gathering for a marriage or a sale to be valid.
• 8Lit: commanded
• 9Bride and groom
• 10It is as if two separate statements were made by two individuals at the time of the contract. Hence, at the time of the contract, there was both an offer and acceptance.
• 11In the case of two fuḍūli, the offer and acceptance occurred at the time of the contract by two parties, so the contract in essence is valid albeit pending approval. As opposed to the case of one fuḍūli, there is no valid contract so the issue of approval does not even arise.