Is the offer and acceptance required in the marriage contract and other transactions?

The questioner : Sometimes, Shaykh, when we go to finalize the marriage contract, it may be that we have already asked the attendees: Did you request the girl and agree on the mahr or not? They may have already sent a delegation first, and sometimes we are going with the delegation and the request is made in our presence along with the offer and acceptance.

The Shaykh : But the proposal is not made before the proposal or the contract.

The questioner : I usually make the proposal first.

The Shaykh : This is what you answered with, and this is not hidden from you, if Allah wills.

The questioner : If you please, let us benefit from your knowledge. When people gather among us and we go to a delegation for a matter like the one that just happened, after I make the request and mention marriage and advise the young men to marry, then the guardian makes the request, for example the father or the uncle, and says: I would like to be close to you; I am asking for your daughter for my son. Then the guardian of the girl says: I give her to you. After this statement ends, are we now in a state where this is a valid Islamic contract? The guardian says: No, I do not want a valid Islamic contract; this is a gift, this is a proposal. A valid Islamic contract requires me to say explicitly, "I give her to you," and the young man says, "I accept," and the girl agrees. This matter is after the valid Islamic contract is completed. But now, this is a proposal and is not considered a valid Islamic contract. Rather, we are now trying to be certain and be on clear ground so that people do not fall into what is forbidden. Before the valid Islamic contract, they rely on themselves that it is still a proposal and they mix and mingle. I mean: what do you advise us to do?

The Shaykh : May Allah bless you. I have answered this in my previous explanation. I said: The contract—I said earlier—that the language of the situation is more eloquent than the language of speech, as is the case now. The suitor and the one being proposed to, and her guardian, are known, and there is consent among all parties. So this contract has taken place and is established without doubt. But sometimes, if there is no clarity in the language of the situation, it is necessary to express it; it is necessary to express this reality.
The Shaykh : The issue is a disagreement among the jurists regarding contracts in general, including the marriage contract: Is it required in them what is called the opposite of mutual exchange? The offer and acceptance. So here there are two schools of thought among the jurists:
The Shaykh : The Shafi'i school says: The offer and acceptance are necessary for the contract to be valid, and not only the marriage contract, but even the sale contract; any contract by name requires the realization of the offer and acceptance.
The Shaykh : The Hanafi school says: Mutual exchange is sufficient, and this is the truth in which there is no doubt. Because we do not know in the known Sunnah in the authentic books and the reports of the Salaf that the righteous predecessors committed to what is called the offer and acceptance in every contract they made, especially regarding buying and selling. Therefore, the opinion requiring the offer and acceptance necessitates, first, that people fall into some hardship, which they do not need, as Allah said: [Surat al-Hajj:78].
The Shaykh : And secondly, for those who require the offer and acceptance, many of the transactions taking place today would not be valid and would be invalid transactions. For example, in the system of public transport, when a passenger boards the bus and throws the fare into the designated box, this is not valid according to those who say the offer and acceptance are required. And if we widen the circle regarding what we hear in some countries, where a person throws the price of an item into the box and takes it and leaves without any communication with the shop owner, there is no offer and acceptance in this, and thus this purchase is not a valid Islamic purchase.
The Shaykh : If we know that the requirement of the offer and acceptance has not come in the Shari'ah to obligate us, first, and we know that this causes problems in people's transactions with one another, second, and we know that the matter is broader than the offer and acceptance, but I said in some circumstances, if the matter is not clear as we said earlier: the language of the situation is more eloquent than the language of speech, there is no harm in stating and clarifying this reality. As for considering that acceptance which took place, and I mentioned that in the custom of some people it is not considered a contract, what is the contract? The Messenger of Allah (peace and blessings be upon him) said: So if the guardian agreed to this proposal and the two witnesses testified to this reality, what do you say if there are witnesses in the crowd present now? The contract has taken place, whether it was done by offer and acceptance with the tongue and with the phrase "I accept, I am pleased," etc., or if none of that took place. So mutual exchange, as we said earlier regarding the Hanafis, is sufficient for that.
The Shaykh : This is what we believe in before Allah.
Al-Halabi : The al-Fatihah, our Shaykh.

The Shaykh : It is not completed except with this.

The questioner : May Allah bless you, and may He bless upon you, and may He unite you both in goodness. And I advise you to be good to your family, if Allah wills. And then this contract...

The Shaykh : Ask, because you want to record it.

The questioner : You have the right over us and over the Muslims, truly. And may Allah reward all the brothers with good for their attendance and response to this invitation.