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Chapter 13 - Offer and Acceptance in Islamic Marriage

The Discussions of al-Mujāhid al-Ṭabāṭabāʾī (d. 1242/1827) in his Manāhil al-Aḥkām

from Part II - Islamic Jurisprudence (Fiqh) and Related Genres

Published online by Cambridge University Press:  14 November 2024

By
Robert Gleave
Edited by
Omar Anchassi  and
Robert Gleave
Omar Anchassi
Affiliation:
Universität Bern, Switzerland
Robert Gleave
Affiliation:
University of Exeter
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Summary

This chapter explores the reasoning of al-Mujāhid al-Ṭabaṭabāʾī (d. 1242/1827) in his Manāhil al-Aḥkām as it relates to the question of offer and acceptance (ījāb wa-qabūl) in the context of marriage. Ordinarily, as in contracts of sale, offer would precede acceptance, but because of social norms surrounding marriage (and women’s agency), this order is reversed. The author justifies this reversal in terms of past authorities and custom. The passages excerpted in this chapter discuss how and when this reversal of the expected order might be possible, and in the course of the discussion cover many other important issues, such as whether marriage contracts operate in precisely the same way as other contracts, and the composition of the formulae for offer and acceptance.

Keywords

Majority view (mashhūr)Consensus (ijmāʿ)Sale (bayʿ)Offer (ījāb)Acceptance (qabūl)Marriage contract (ʿaqd al-nikāḥ)Guardian (walī)Agent (wakīl).
Type
Chapter
Information
Islamic Law in Context
A Primary Source Reader
 , pp. 141 - 154
Publisher: Cambridge University Press
Print publication year: 2024

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References

Primary Sources

al-Ṭabāṭabāʾī, al-Sayyid al-Mujāhid Muḥammad. al-Manāhil (Qum: Muʾassasa Āl al-Bayt, n.d.), lithograph, 281–2 (Kitāb al-Bayʿ), 529–30 (Kitāb al-Nikāḥ).Google Scholar

Secondary Sources

Arjomand, Said Amir. ‘The Shiʿite Hierocracy and the State in Pre-Modern Iran: 1785–1890’, European Journal of Sociology/Archives Européennes de Sociologie/Europäisches Archiv für Soziologie 22 (1981), 40–78.CrossRefGoogle Scholar
Badareen, Nayel A. ‘Shīʿī Marriage Law in the Pre-Modern Period: Who Decides for Women?’, Islamic Law and Society 23 (2016), 368–91.Google Scholar
Khetia, Vinay. ‘The Guardians of the Islamic Marriage Contract and the Search for Agency in Twelver Shi‘a Jurisprudence’, in Iftā’ and Fatwa in the Muslim World and the West, ed. Ali, Shah Zulfiqar (London and Washington: International Institute of Islamic Thought, 2014), 129–72.Google Scholar
Litvak, Meir. ‘Continuity and Change in the Ulama Population of Najaf and Karbala, 1791–1904: A Socio-Demographic Study’, Iranian Studies 23 (1990), 31–60.CrossRefGoogle Scholar
Litvak, Meir. Shiʻi Scholars of Nineteenth-Century Iraq: The ʻUlamaʼ of Najaf and Karbalaʼ (Cambridge: Cambridge University Press, 1998).Google Scholar
Quraishi, Asifa and Vogel, Frank E. (eds.). The Islamic Marriage Contract: Case Studies in Islamic Family Law (Cambridge, MA: Harvard University Press, 2008).Google Scholar

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