The Different Types of Shuroot (Conditions or Prerequisites)

At this point, we need to learn the definition of some general terms in Islamic fiqh which come up in many subject areas, including the one at hand.

Sahih (Sound).  A contract which fulfills all of the arkaan and the shuroot and has full effect in the law.

Baatil (Void).  A contract that has failed to fulfill specific arkaan or vital shuroot.  A contract which is baatil is the opposite of one which is sahih and has no legal effect at all.  If a marriage contract is found to be void, even if it is only discovered after consummation, the legal condition will be as if it never happened at all.  The lineage of the father will not be established and there is no waiting period ('iddah) upon the woman.  An example of this would be if a man married a woman who was married to someone else at the time.

Faasid (Defective).  This is a contract which fails to fulfill some of the shuroot, but not the arkaan.  For non-Hanafis, faasid and baatil have the same meaning.  In Hanafi fiqh, a marriage which was faasid has some legal ramifications, especially if it was consummated.

With respect to marriage, there are four different kinds of conditions which must be met:

1. Conditions Required for Initiating the Contract (shuroot al-in'iqaad).   These are the conditions that must be present with respect to the arkaan or fundamentals of the marriage contract.
2. Conditions Required for the Soundness of the Contract (shuroot as-sihha).   These are conditions which must be fulfilled in order for the marriage to have its proper legal effect.  If these conditions are not met, the contract is "defective" (faasid), according to Hanafi fiqh, "void" (baatil) according to the others.
3. Conditions Required for the Execution of the Contract (shuroot an-nifaadh).   These are conditions which must be met for the marriage to have actual practical effect.  If these conditions are not met, then the marriage is "suspended" (mauqoof) according to Hanafi and Maliki fiqh.   For example, a minor girl until she reaches puberty.
4. Conditions Required for Making the Marriage Binding (shuroot al-luzoom).   If these conditions are not met, then the marriage is non-binding meaning that either of the two parties or others may have the right to anull the marriage.   If they accept the marriage with such shortcomings, it becomes binding.

First:  Shuroot Required for Initiating the Contract

In this category, there are conditions concerning the two who are getting married as well as the form in which the contract takes place.

Concerning the Two Getting Married

The two people must meet the qualification of legal competence, i.e, they must be adult and sane.  If they are not, the marriage will be invalid.

Secondly, the woman cannot be from those categories of women that are forbidden for a man to marry.  For example, suppose a man married a woman and later discovered that they had been breastfed by the same woman.  In this case, it is as if the marriage never took place because those two were not qualified or allowed to marry each other and the marriage becomes null and void.

Concerning the Contract

There is near complete agreement on the following conditions relating to the transaction of the marriage contract:

1. The offer and acceptance must be done in one sitting.  In general, this means that the response must be immediate.  Exactly what is considered a "sitting" depends on custom and related factors.
2. The acceptance must correspond to what is being offered.  If the guardian says:   "I marry you to Khadijah", a response of "I accept Fatimah as my wife" would not constitute a valid contract.  An exception to this is if the wali mentions a specific dowry amount and the groom responds with a higher amount.  It is regarded that there is no reason for dispute since it is assumed that a higher dowry will be acceptable.
3. The wali cannot rescind the offer.  Unlike transactions of selling, neither party can say "I have changed my mind" once they have uttered the offer/acceptance.  It is immediately binding.  In a sale, they both continue to have the option to change their mind until the "sitting" is over and they part.
4. The marriage must be effective immediately.  If the wali says "I will marry her to you after one month", there is not marriage and the two remain unmarried.

Note that the custom of saying "I accept" three times common in some Muslim cultures has no legal significance.  Once the first "I accept" has been uttered, everything after that is meaningless - whether positive or negative.

Adding Stipulations to the Marriage Contract

This is where one party states a stipulation binding on the other party for specific reasons or goals.  The offer/acceptance are tied to this stipulation by mention.   There is a difference of opinion among the scholars concerning the validity of conditions of this nature.

Conditions of contracts are two types:  1) those imposed directly by the shari'a and 2) those drawn up by one or more of the parties.  When any contract is entered into, the first type of conditions are covered automatically even if they are not stated in the contract.

Understood Conditions Based on what is Customary

It is a general principle in fiqh that customs can take the status of law.   It becomes understood that people are going to behave in a certain fashion.   Since that is understood, one party has the right to ask it of the other even if it is not stated in the contract.  In the area of marriage, there are some stipulations that are known by custom.  These do not have to be mentioned in the contract to be considered binding.  However, there are some strict conditions that must be met before a customary act is considered something equivalent to a legal stipulation.   These conditions are as follows:

1. The customary practice cannot contravene or contradict anything expressly laid down by the shari'a.  For example, it is custom in some parts of the world for the woman to pay dowry to the man.  In other parts, it is customary to prepare two or three times amount of food that the guests could possibly eat at the walima (wedding feast).  Neither party has the right to demand of the other the fulfillment of such customs.
2. The customary act must be common, well-known and universal and not something practiced only by some portions of the population.
3. The custom must have been in existence and known before the marriage contract took place.

Other conditions Laid Down by the Two Parties

Any condition which contradicts, compromises or nullifies the main goals and purposes of the marriage contract itself are rejected and, even if stated, are of no legal consequence.  For example conditions which state that the woman receives no dowry or that he does not have to support her or that they will not consummate the marriage are all null and void and of no effect whatsoever.

Such conditions must be stipulated and agreed upon at or before the time of the offer/acceptance.  Even those scholars who accept such stipulations do not accept them if they are made after the offer/acceptance.

Sound and Acceptable Stipulations

There are two types of sound and acceptable stipulations:

1. Those embodied in the contract even if they are not stated. This includes conditions known from the shari'a as well as those known from custom as discussed previously.  The Prophet (sas) said:
   
   "Ahaqqu maa aufaitum min ash-shurooti maa istahlaltum bihi al-furooj."
   "The conditions which you have the most duty to fulfill are those by which you have made marital relations lawful."  Bukhari & Muslim
   
   Many scholars understand this hadith to be referring to these kinds of conditions only, that is, those that are covered by the shari'a in the first place.   This is the view of the shafi'i school.  They do no allow any additional stipulations to be added to the marriage contract.
   
2. Those conditions not covered by the essential nature of the contract but which are agreed upon by the contracting parties.  These are those stipulations that do not contradict the general goals of the contract, do not bring harm to anyone and which apply to things which are permissible and within the right of the person to agree - that is something that does not go against the shari'a.  They are laid out in the beginning to avoid any conflict or hardship in the future.

In General, Muslims Must Fulfill Their Agreements

Generally speaking, Muslims must comply with any agreements that they make.  Allah said about the believers:

{...Wa al-moofoona fi 'ahdihim idhaa 'aahadoo...}
{...And those who fulfill their pacts when they make one...}  Al-Baqara:177

{Yaa ayyuhaa alladhina aamanoo aufoo bi al-'uqood...}
{O you who believe fulfill your contracts...} Al-Ma'idah:1

The Prophet (sas) said:

"Al-muslimoona 'alaa shurootihim."
"Muslims are bound by their stipulations."  Abu Daud & Al-Hakim (sahih)

During the time of Umar ibn Al-Khattab, a man married a woman upon the condition that he would not move her from his house.  The time came when he wanted to move her.   They took their dispute to Umar and he said:  "She has the right to her stipulation."  The man said, "In that case, they will certainly end the marriage."  He said, "The rights are broken off due to the stipulations."  This was the view of many of the Companions, Followers and scholars including Saad ibn Abi Waqqas, Mu'awiyah, Amr ibn Al-Aas, Shuraih, Umar ibn Abdul Aziz, Tawoos, Al-Awzaa'i and Ishaq.

There is another opinion which says that external stipulations - those not covered by the nature of the contract itself - carry no weight and need not be met.  This was the opinion of Abu Hanifa, Ash-Shafi'i, Malik, Az-Zuhri, Qatada, Al-Laith, Ath-Thauri, Ibn Al-Mundhir and has been narrated from Ali.

The Proofs of Those Who Say that Such Stipulations are Neither Binding nor Valid

"Kullu shartin laisa fiy kitaabi Allahi fahuwa baatil wa in kaana mi'atu shartin."
"Every stipultion which is not in the book of Allah is void even if it be one hundred stipulations."  Muslim & Bukhari

They also cite the following extension to the hadith mentioned earlier about stipulations:

"Al-Muslimoon 'alaa shurootihim illa shartin ahalla haraaman au harrama halaalan."
"Muslims are bound by their stipulations except for a stipulation which makes the unlawful lawful or makes the lawful unlawful."

However, this version of the hadith with the added sentence is weak and cannot be used as evidence.  As for the hadith mentioned earlier that "The conditions which you have the most duty to fulfill are those by which you have made marital relations lawful.", they claim that this only applies to the conditions which are essential parts of the nature of the contract itself.

Response to Those Arguments

The scholars who permit such stipulations in the marriage contract have responded to the above.  As for the hadith "Every stipulations which is not in the book of Allah...", they say that for a woman's wali to make some conditions to her advantage is something permissible and does not go against the Book of Allah.

Actually, such conditions do not violate the Book of Allah and do not make anything forbidden permissible, etc.  They simply give the woman the right to annul the marriage if the condition is not satisfied.

Also, there remains no real meaning to the hadith "The conditions which you have the most duty to fulfill..." if one says that it only applies to conditions that are already in force due to the nature of the contract anyway.

The Crux of this Difference of Opinion

This discussion boils down to the understanding of two seemingly contradictory hadith:

"Every stipulation which is not in the book of Allah is void even if it be one hundred stipulations."  Muslim & Bukhari

"The conditions which you have the most duty to fulfill are those by which you have made marital relations lawful."  Bukhari & Muslim

It seems clear from the second hadith along with the fatwa of Umar mentioned earlier that there is some room for adding stipulations to a marriage contract.  It also seems clear from the first hadith that there are limits on what can be stipulated.   Specifically, any stipulations which go against the basic goals and principles of the marriage contract and not allowed and, if stated, are null and void.  Thus, the only remaining problem is understanding exactly how this principle applies in practical situations.

For those scholars who don't accept such external stipulations at all, they have no effect, are not binding, and don't affect the validity of the underlying contract.   For those who accept them, they give the woman the option to annul the marriage upon he request if the condition is violated.  We only mention the woman because the man can divorce at any time with or without a particular cause and so has no need of such an option.  Notice that even in the fatwa of Umar, he didn't require the man to fulfill the condition, rather he allowed that she could end the marriage if she so demanded.

Conditions for Which there is Agreement that they are Invalid

Even those who accept these stipulations all agree that certain conditions are not allowed.  Among them are the following:

1. Nikaah Ash-Shighaar.  This is where the two dowries are stolen and "exchanged".  For example a man marries his son to another's daughter in "exchange" for the other marrying his daughter to the first one's son.   Neither woman receives their dowry.
2. Nikaah Al-Mut'a.  Any kind of marriage with a stipulated time limit.
3. Nikaah At-Tahleel.  A woman who has been divorced three times and wishes to return to her first husband marries a man on the condition that he divorce her.   If this is discovered or if this is her intention, the first husband still does not become lawful for her in spite of this marriage.