Chapter on Conditions and Defects in Marriage
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The Shaykh : He said "Chapter on Conditions and Defects in Marriage" Conditions is the plural of condition, and it means a sign, as Allah the Exalted said: [Muhammad 47:18] meaning its signs. The term condition is interpreted differently in each context; it is interpreted in one way in the chapter on the principles of jurisprudence and in another way in the chapter on jurisprudence.
And his saying "conditions in marriage" there is a difference between conditions of marriage and conditions in marriage, and the difference between them is from two aspects. The first aspect is that the conditions of marriage are established by the Shari'ah, while the conditions in marriage are established by the contracting party. The second aspect is that the conditions of marriage are those upon which its validity depends, while the conditions in marriage are those upon which its binding nature depends, because they are a right of a human being; if he wishes, he may waive them, and if he wishes, he may uphold them. What is the difference, O 'Abd Allah? What is the difference between conditions in marriage and conditions of marriage?
The questioner : ... .
The Shaykh : Yes.
The questioner : The first is that the conditions of marriage are those established by the Shari'ah.
The Shaykh : Yes.
The questioner : The conditions in marriage are those established by the contracting party.
The Shaykh : Okay.
The questioner : Condition... The second aspect is that the conditions of marriage are those upon which the validity of the marriage depends.
The Shaykh : Yes.
The questioner : And the conditions in it are those upon which its binding nature depends.
The Shaykh : Well done. And what does not affect its binding nature is that if the one who stipulated it wished, he could waive it. For example, is the consent of the spouses a condition of marriage or a condition for marriage?
The questioner : A condition for marriage.
The Shaykh : For marriage? Good. Is a stipulated specific mahr a condition of marriage or a condition in it?
The questioner : A condition in marriage.
The Shaykh : That is, if a woman stipulates that her mahr be one thousand riyals, is this a condition of marriage or a condition in marriage? Understood. Good. So the difference is from two aspects. As for his saying "defects in marriage," defects is the plural of defect. So what is a defect in marriage? Is it limited or counted? And does it establish the right of annulment or not? The correct view is that it is limited, not counted. What is reported from the Salaf are specific cases that serve as examples for this. So its limit is what causes aversion between the spouses or defeats the purpose. This is the limit of a defect in marriage: what causes aversion between the spouses or defeats the purpose of marriage. Good. And this is the correct view, and this is a limit, not a count. Some scholars hold that defects are counted. I will give an example: leprosy is a defect in marriage, even if it is the size of a needle's eye. This is a defect if a man enters his wife and finds a whiteness on her arm the size of a needle's eye. This is a defect. Do you understand?
The questioner : Yes.
The Shaykh : Good. And if a man marries a woman and enters her, and she is blind, deaf, mute, dumb, and paralyzed so she cannot move, this is not a defect. Why? Because defects are counted and specified, not limited. And which is greater, the first or the second?
The questioner : The second.
The Shaykh : The second. A woman who is blind, dumb, deaf, and paralyzed... he carries her. In any case, some scholars, may Allah have mercy on them, hold that defects are limited, and others hold that they are counted. The correct view is that they are limited, and they are everything that causes aversion between the spouses or defeats...
The questioner : That is what is meant.
The Shaykh : What? The purpose of marriage. Good. The conditions in marriage are divided into three categories. We ask first: what is considered valid among the conditions in marriage? Is it required that they be concurrent with the contract, or is it permissible for them to be added to the contract, or is it valid for them to be before the contract? Here are three states: sometimes the condition is before the contract, sometimes with it, and sometimes after it. So what is considered valid? What is considered valid is what is in the body of the contract or what they agreed upon before the contract. As for what is after the contract, it is not considered valid. So if a man marries a woman and stipulates in the body of the contract that she be beautiful, and then he enters her and she is ugly, this condition is valid and he has the right to annul the marriage. Good. And if they agreed before the contract that she is beautiful, and at the time of the contract they remained silent and did not mention in the contract that she is beautiful, and then it became clear after entering her that she is ugly, is the previous condition considered valid? The answer is yes, the previous condition is considered valid, provided they did not invalidate it at the time of the contract. And we made it considered valid because the original state is the continuation of what was as it was. But if the contract was completed, and after he said "I have married you my daughter," he said "I accept," and then he said "Look, I stipulate that she be beautiful," is this condition considered valid? No, because the contract was completed and ended, becoming an absolute contract with no condition in it, so it remains absolute. So what is considered valid in conditions? What is in the body of the contract or what they agreed upon before it. And this will benefit you not only in the conditions that are desirable, but even in the conditions from which safety is sought. What is considered valid is the body of the contract or what they agreed upon before it. Conditions are divided into categories: valid conditions, defective conditions that do not invalidate, and defective conditions that invalidate. How many categories are there?
The questioner : Three.
The Shaykh : Three: defective and invalidating, defective and not invalidating, and valid. Good.
Then do they await except that the Hour should come upon them unexpectedly? But already there have come [some of] its indications
فهل ينظرون إلا الساعة أن تأتيَهم بغتة فقد جاء أشراطهاAnd his saying "conditions in marriage" there is a difference between conditions of marriage and conditions in marriage, and the difference between them is from two aspects. The first aspect is that the conditions of marriage are established by the Shari'ah, while the conditions in marriage are established by the contracting party. The second aspect is that the conditions of marriage are those upon which its validity depends, while the conditions in marriage are those upon which its binding nature depends, because they are a right of a human being; if he wishes, he may waive them, and if he wishes, he may uphold them. What is the difference, O 'Abd Allah? What is the difference between conditions in marriage and conditions of marriage?
The questioner : ... .
The Shaykh : Yes.
The questioner : The first is that the conditions of marriage are those established by the Shari'ah.
The Shaykh : Yes.
The questioner : The conditions in marriage are those established by the contracting party.
The Shaykh : Okay.
The questioner : Condition... The second aspect is that the conditions of marriage are those upon which the validity of the marriage depends.
The Shaykh : Yes.
The questioner : And the conditions in it are those upon which its binding nature depends.
The Shaykh : Well done. And what does not affect its binding nature is that if the one who stipulated it wished, he could waive it. For example, is the consent of the spouses a condition of marriage or a condition for marriage?
The questioner : A condition for marriage.
The Shaykh : For marriage? Good. Is a stipulated specific mahr a condition of marriage or a condition in it?
The questioner : A condition in marriage.
The Shaykh : That is, if a woman stipulates that her mahr be one thousand riyals, is this a condition of marriage or a condition in marriage? Understood. Good. So the difference is from two aspects. As for his saying "defects in marriage," defects is the plural of defect. So what is a defect in marriage? Is it limited or counted? And does it establish the right of annulment or not? The correct view is that it is limited, not counted. What is reported from the Salaf are specific cases that serve as examples for this. So its limit is what causes aversion between the spouses or defeats the purpose. This is the limit of a defect in marriage: what causes aversion between the spouses or defeats the purpose of marriage. Good. And this is the correct view, and this is a limit, not a count. Some scholars hold that defects are counted. I will give an example: leprosy is a defect in marriage, even if it is the size of a needle's eye. This is a defect if a man enters his wife and finds a whiteness on her arm the size of a needle's eye. This is a defect. Do you understand?
The questioner : Yes.
The Shaykh : Good. And if a man marries a woman and enters her, and she is blind, deaf, mute, dumb, and paralyzed so she cannot move, this is not a defect. Why? Because defects are counted and specified, not limited. And which is greater, the first or the second?
The questioner : The second.
The Shaykh : The second. A woman who is blind, dumb, deaf, and paralyzed... he carries her. In any case, some scholars, may Allah have mercy on them, hold that defects are limited, and others hold that they are counted. The correct view is that they are limited, and they are everything that causes aversion between the spouses or defeats...
The questioner : That is what is meant.
The Shaykh : What? The purpose of marriage. Good. The conditions in marriage are divided into three categories. We ask first: what is considered valid among the conditions in marriage? Is it required that they be concurrent with the contract, or is it permissible for them to be added to the contract, or is it valid for them to be before the contract? Here are three states: sometimes the condition is before the contract, sometimes with it, and sometimes after it. So what is considered valid? What is considered valid is what is in the body of the contract or what they agreed upon before the contract. As for what is after the contract, it is not considered valid. So if a man marries a woman and stipulates in the body of the contract that she be beautiful, and then he enters her and she is ugly, this condition is valid and he has the right to annul the marriage. Good. And if they agreed before the contract that she is beautiful, and at the time of the contract they remained silent and did not mention in the contract that she is beautiful, and then it became clear after entering her that she is ugly, is the previous condition considered valid? The answer is yes, the previous condition is considered valid, provided they did not invalidate it at the time of the contract. And we made it considered valid because the original state is the continuation of what was as it was. But if the contract was completed, and after he said "I have married you my daughter," he said "I accept," and then he said "Look, I stipulate that she be beautiful," is this condition considered valid? No, because the contract was completed and ended, becoming an absolute contract with no condition in it, so it remains absolute. So what is considered valid in conditions? What is in the body of the contract or what they agreed upon before it. And this will benefit you not only in the conditions that are desirable, but even in the conditions from which safety is sought. What is considered valid is the body of the contract or what they agreed upon before it. Conditions are divided into categories: valid conditions, defective conditions that do not invalidate, and defective conditions that invalidate. How many categories are there?
The questioner : Three.
The Shaykh : Three: defective and invalidating, defective and not invalidating, and valid. Good.