woman contract a man in marriage without his confent, the validity
is fufpended upon the fame cirCumftance.— This is an opinion of our
doctors; becaufe they hold that in a cafe of a contradt entered into by
a Fazoolee, or unauthorized perfon, and to which there exifts any
perfon who has a right to affent, the fame Hands as a complete con-
trad:, the validity of which is fufpended upon that perfon’ si approbation.—
Shafc'i maintains that all acts whatever of a Fazoolee are null;
becaufe the ufe of a contract is for the purpofe o f eftablithing its effeft,
like that offale, .for in fiance, which is ufed for the purpofe of pfla-
blifhing a right of property, and that of marriage, for the purpofe of
eftablithing a right of enjoyment; and a Fazoolee is incapable of
eftablithing the effedt, on account of his want of authority; wherefore
the adl of the Fazoolee is nugatory__T h e argument of our dodtors is,
that the foundation of the contradt, namely, declaration and acceptance,
has proceeded from a competent perfon, (that is, from one who is
fane and adult,) and has reference to its proper fubjedt; neither-can.
any injury be fuftained if the contrad: be executed, inafmuch as there
exifts, in refpedt to it, a perfon who has a right of aflent, and who,
if he think proper, will fignify fuch affent, and give the contrad
force; or, if otherwife, will rejed it: and in reply to what is urged
by Shafei, we obferve that the effed of a contrad is fometimes deferred
to a period fubfequent to the time or date of the contrad; as in a
contrad of fale under a condition o f option, where pofleflion is deferred
until fuch time as the condition of option drops.-'
I f an unauthorized perfon fay to two perfons “ Be ye witnefs
“ that I have married fuch a woman who is abfent;” and afterwards
the woman fhould hear o f it, and confent, yet the marriage is void:
but if, on the unauthorized perfon fpeaking as above, a third perfon
were to fay “ I have married that woman to that man,” and the j
woman on hearing of it fhould confent, the marriage is lawful. And,
in like manner, if a woman fhould fay “ Be ye witnefs that I have
-‘ 4 contracted myfelf to fuch a man who is abfent,” and the man
fhould afterwards hear of it and confent, the marriage would notwith-
ftanding be void; but if, on the woman' thus fpeaking, a byftander
were to fay, “ Be ye witnefs that I give confent on behalf o f fuch a
“ perfon;” and the man, on hearing of it, fhould give his confent,
the marriage is .valid. This is the doctrine of Haneefa. Aboo Yoofaf
atletes that if a woman were- to fay “ I have contradted myfelf to
n fuch a man,” (he being abfent,) and the man, on afterwards receiving
intelligence o f this, were to declare his aflent, the marriage
is valid. In fhort, according to Haneefa and Mohammed, one perfon
is not competent to adt as a Fazoolee in a contrail of marriage, either
on behalf of both parties, or as a Fazoolee on one fide, and a principal
on the other; whereas Aboo-Yoofafho\&s.a contrary opinion. But, if
two unauthorized perfons enter into a contrad! of marriage on behalf of
both parties,— that is to fay, one on the part of the man, and the other
on that of the woman,— or, if the perfons enter into fuch a contrad!,
one as a Fazoolee, and the other as a principal,— it is lawful, with our
dodtors*: (HaneefaMohammed, and Aboo Yoofefl) T h e argument of
Aboo Yoofaf, in the cafe before ftated, is that one perfon may in marriage
Hand as two, and the. declaration of that perfon may be confi-
dered as two declarations * , (whence it is that i f one perfon be au-
thorifed by both parties, the marriage is effedted by his lingle declaration
;) and, in the cafe of an unauthorized! perfon, the only difference
is, that the validity of the contradt remains fufpended upon the ultimate
confent of the parties, as in a cafe o f Khoola, where, i f a man
were to declare that “ he had repudiated his wife by the form of
“ Khoola for fuch a confideration,” (the wife being abfent,) and fhe
were afterwards to receive intelligence of this, and to affent, the
Khoola is lawful; and fo alfo, in a cafe of divorce or of manumidion,
where, if a man were to declare that he had divorced his wife for one
thoufand D ir ms, _ (fhe being abfent,) and intelligence of this reach
her, and fhe confent,— or, if a man declare that “ he has emancipated
t0 fay, “ as the proposal and the acceptance, or, in other words, “ as the
declaration and the confent
“ fuch