Cafes o f the
matrimonial
agent exceeding
or atting
contrary to
his comftiif-
Jion.'
“ fuch an one, his flave, for a recompenfe of one thoufand D ir ms,”
(the flave being abfent,) and the latter, hearing of this, aflent, the
proceeding is lawful.— T o this Haneefa and Mohammed reply that, in
the cafe before recited, the declaration of the unauthorized perfon,
“ I have contracted fuch a woman to fuch a man,” or, “ I have
“ married fuch a woman,” amounts to a contract on one part only,
which is not valid, wherefore the legality of it is not fufpended upon
the confent of the parties, as its completion refls on the reply, which
is not approved, unlefs it proceed from a perfon prefent in the aflemblv
or company where the contract is'made, and during the continuance
of that company; and, like a fale, it is incapable of being protracted
to any period beyond that aflembly; but where a perfon, on the contrary,
aCts on the authority of both parties, the contract is valid,- be-
caufe here his declaration applies equally to both; and where the
contract is entered into by two unauthorized perfons, (aCting for, or,
as it were, reprefenting the refpeCtive parties,) it is complete, as it here
poffefles all the effential properties of a contraCt; and fo alfo in cafes
of Khoola, or of divorce, or manumifiion for a compenfation, (as cited
by Aboo Yoofaf,) becaufe in fuch inftances the declaration Hands as a
conditional vow on the part of the hufband or the mafter, fo as. to be
binding upon him, and from which he cannot with propriety retraCt;
and hence the engagement is completed folely by him.
I f a man commiflion another, as his agent, to procure him a wife,
and the agent fhould contract him to two women, by one declaration*,
his marriage is not valid with either, for, being unlawful with both,
on account of its contradicting the tenor of the commiflion with
which he was charged, and uneftablifhed with either, on account
of unfpecified priority, a feparation from both mult neceffarily
enfue.
* That is to fay, by one contrail.
If
If a perfon commiflion another, as his agent, to contraCt him in
marriage to a woman, and the agent fhould contraCt him to a female
flave the property of fome third perfon, it is valid, (according to
Haneefa,') becaufe here the agent appears to have aCted in ftriCt conformity
with the tenor of kis commiflion, ns the term womanhs, general,
applying equally to the whole lex, to flaves as well as to others;
nor can there be any doubt, fince the cafe fuppofes the flave to be the
property, not of the agent, but of fome third perfon; — neither is
there any impropriety in it, as the cafe fuppofes the authorizer not to
be previo.ufly married to a free woman.— T h e two difciples allege that
a marriage thus made 'by an agent is illegal, unlefs it be contracted
with a woman who is the equal of the conflituent; becaufe, by the
term woman, generally expreffed, is to be underflood fuch as it is cuf-
tomary to wed, and men commonly marry their equals; the term
woman, therefore, thus indefinitely exprefled, means fuch a woman
as it is ufual for fuch a man to marry.— T o this Aboo Haneefa replies,
that in cuflom there is an indefinite latitude, it being common for
men, even of confiderable rank, to marry female flaves, as well as free
women who are their equals; and fuch being the cafe, the agent is
not reflriCled to any particular defcription o f women, as the term
woman mull be taken generally: and even admitting that cuflom does
thus prevail in marriage, it may he replied that cuflom is of tw o different
defcriptions, one applying to words, (as Daba, for inflance,' a
term applying to beafls in general, but which cuflom hath reflriCled
to a horfeg) and the other to allions, (fuch, for inflance, as men
clothing themfelves in new garments on the feflival of Yd-,) now, in
the prefent cafe, cuflom applies to fa lls , and not to terms, and therefore
does not admit the conflruCtion of being reftriclive.— It will
hereafter be fhewn, in treating of Agency, that the two doctors regard
equality, in the prefent eafe, upon another principle, to wit, that a
man not being neceffitated to marry any woman, of courfe his defire of
heing married by an agent relates only to a woman who is his equal.
R C H A P .