The First Pillar of Mut'a
- :Sachiko Murata
Adopted from the Book : "Temporary Marriage in Islamic Laws" by : "Sachiko Murata"
I. The Formula
Since it is a contract, mut'a requires a declaration and an acceptance. As in permanent marriage, the declaration is the prerequisite of the woman. It must consist of one of three Arabic formulas, the same three which are employed by the Shi'is in permanent marriage. Al-Sayyid al-Murtada1 is said to have added that a slave girl may employ the formula 'I have allowed you' (abahtu-ka) or 'I have considered you lawful' (hallaltu-ka),2 but his words have not been confirmed by others. Al-Shahid al Thani writes: 'To me it seems more correct to limit ourselves to the first three phrases.'3 Apparently there is no disagreement on the point that the woman may not employ expressions like: 'I have given you possession', 'I have given to you as a gift', 'I have rented to you', 'I have lent to you', etc.
The 'acceptance' is made by the man after the woman has made her declaration. His words must demonstrate that he is satisfied with the declaration. For example, he may say: 'I will accept the marriage', or 'I accept the mut'a.' If he should say only: 'I accept' or 'I am satisfied', the contract is valid.
That the declaration should precede the acceptance is not a condition of the contract, since a contract consists of a declaration and an acceptance, in whatever order the two may occur. It is claimed that there is a consensus on this point.4 Al-Muhaqqiq al-Hilli states explicitly that if the man says: 'I have married you', and then the woman says the same thing to him, the contract is sound.5
According to al-'Allama al-Hilli, the formula of the contract must be recited in the perfect tense.6 But the majority of the 'ulama' hold that it is permissible for it to be recited in the imperfect tense, as long as there is the intention of contracting the marriage.7 Many hadith have been related showing that the imperfect tense is acceptable. For example, the Imam Ja'far al-Sadiq was once asked what formula should be recited when a mut'a is contracted. He replied: 'I marry thee in mut'a according to the Book of God and His prophet's sunna without inheritance from me to thee or vice versa, for so many days, for so many dirhams ... .'8
The legal discussions of contracts assert that the persons who make the declaration and acceptance must be 'worthy of the contract' (ahl al 'aqd). In the question of mut'a this means that those who conclude the contract must be the man and woman themselves, or their representatives (wakil), or their fathers. Hence, for example, it is permissible for the father to say: 'I give my daughter in mut'a with her agreement.' If anyone other than the above persons should conclude the contract, it is 'uncommissioned' (fuduli) and therefore invalid.
1. 'Ali ibn al-Husayn al-Musawi (355-436/965-1044), leading Shi'i scholar and author of many works. His brother, al-Sharif al-Radi (d. 406/1015), was also a famous scholar and compiled 'Ali's Nahj al-balagha.
2. Riyad, II, 113; Mukhtasar-i nafi' (an 18th/14th century Persian summary of al-Muhaqqiq al-Hilli's Shara'i' by an unknown author), ed. M.T. Daneshpazhuh, Tehran, 1343/1964,231.
3. Al-Shahid al Thani, Masalik al-ajham (a commentary on Shara'i'), Tehran, 1273/1856-57, I,536.
4. Sharh al-lum'a, v, 110.
5. Shara'i',II, 24.
7. Riyad, II,113.
8. Wasa'il, XIV, 466.
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