Is it correct that saying “I sold you my daughter” playfully or seriously, is not considered to be a marital agreement because the meaning is not correct and what is to be said instead is: “I gave her to you in marriage” or “I married her to you”?
It’s not permissible to joke or play with the wordings of marital agreement; because this is playing with the rulings of Allah.
The affair of the honour of the people is great and jesting in its regard is baneful.
The Most High said:
(وَلَا تَتَّخِذُوٓا۟ ءَايَٰتِ ٱللَّهِ هُزُوًا)
“And treat not the Verses (Laws) of Allah as a jest”
Allah forbade the treating of the verses of Allah as a jest after mentioning marriage, marital anullment and divorce.
As for the (Jester); it’s he who speaks with speech without intending it’s reality and what it necessitates, rather from the angle of playing.
Its opposite is (Serious).
As for the ruling in regards of giving in marriage of he who was jesting; then the majority of the people of knowledge are upon the position that the marriage of the jester takes effect.
Shaykh-Ul-Islām and his student Ibn-Ul-Qayyim said:
“This is what has been preserved/memorised from the companions and the Tabi’īn and it’s the position of the majority.”
Look in “Al-Fatāwa Al-Kubrā” (6/63)
As [The Jester intends the wording without wanting the ruling, and the ruling does not belong to him, whats upon the Mukallif is only to put in the means, as for putting in effect the rulings and what it necessitates, then this is for the legislation. Be it that the Mukalif intends it or didn’t intend it.
The point of benefit and reference is only that he put in the means willingly while his intellect and culpability are still in effect.
If he intends this, either in seriousness or in jest, then the legislation establishes upon it the ruling.
This is contrary to the one who is sleeping, or the ‘mubarsam’ someone who is afflicted with a type of sickness of the chest and head which brings about confusion and problems in the intellect, or the crazy, or someone who’s intellect is not present; for they do not have a sound intent nor are they culpable, the words which they utter is void chatter, on the level of that of a child who does not realise the meaning of the words nor do they intend it.
This is the point of reference in the difference between he who intends saying the words while he knows what it means and doesn’t want its ruling, and he who did not intend to say the wording and didn’t know what it meant.
So the levels which the legislation takes into consideration are four:
➖1) That one intends the ruling and doesn’t utter it.
➖2) That one doesn’t intend the wording nor its ruling.
➖3) That one intends the wording and not the ruling.
➖4) That one intends the wording and the ruling.
The first and the second are void & empty (of rulings).
The third and the fourth are put into effect.
This is what is benefited from all of its texts and rulings]
[Zādl Ma’ād 5/185-186]
[The one who is jesting, joking, is not permitted to jest in regards to words of disbelief or that what relates to contracts/agreements; he is speaking with words while intending to say it, and the meaning is not diverted away through being forced or being that it was an unwanted mistake, or forgetfulnes, or ignorance.
Jest has not been made an excuse which wards away the ruling of Allah and His Messenger (ﷺ), rather the perpetrator is more deserving to be punished.
Have you not seen that Allah excused the one who is forced to say a word of disbelief if his heart was settled and at peace with Ēmān, and He did not grant the one who was joking:
(وَلَئِن سَأَلْتَهُمْ لَيَقُولُنَّ إِنَّمَا كُنَّا نَخُوضُ وَنَلْعَبُ ۚ قُلْ أَبِٱللَّهِ وَءَايَٰتِهِۦ وَرَسُولِهِۦ كُنتُمْ تَسْتَهْزِءُونَ)
“If you ask them (about this), they declare: “We were only talking idly and joking.” Say: “Was it at Allah, and His Ayat (proofs, evidences, verses, lessons, signs, revelations, etc.) and His Messenger (ﷺ) that you were mocking?”
[For if he was jesting or joking, he did not intend the meaning, the legislation (still) necessitated the meaning upon him, similar to he who jested in regards to disbelief and divorce and marriage and taking back of the wife, rather even if a disbeliever were to utter the words of Islām in jest, the outward and apparent rulings would take affect upon him.]
There are those from the people of knowledge that have went towards the position, that the one marrying in jest, did not do so upon intention, thus the contract is not correct due to this, due to not fulfilling the condition of mutual agreement.
The differing in this subject matter is strong.
➖The first position is the stronger position, and Allah knows best.
As for the ruling of granting marriage by using the word sale.
Then know that contracts by way of anything which points to its intent, from statements or actions, are sound.
And this is what the foundations of the legislation point towards.
Anything which the people consider a sale or renting or marriage. As the point of benefit and reference in regards to contracts are the meanings which signify mutual agreement in proposition and acceptance.
And this is the madh-hab of the Mālikiyyah and the Hanafiyyah and it’s been chosen to be more correct by Shaykh-Ul-Islām and Ibn-Ul-Qayyim, may Allah have mercy upon them both.
So the words in regards to marriage are not restricted to:
Given in marriage to you or married her to you (etc).
And in the two Sahihs on the authority of Sahl bin Sa’d, may Allah be pleased with him, the Prophet ﷺ used the words tamlīk (transfering of ownership) as found in his statement:
(اذهب فقد ملكتكها بما معك من القرآن)
“Go, for I have given her to you to own (i.e married her to you) for what you have with you of the Qur’ān”
And in another narration: (أَمْلَكْنَاكَهَا)
And from the likes of this is the wording gift and grant and sell; for the usage of this in marital agreements is sound, as long as it points to what is intended, and mutual agreement is understood by way of it.
Contrary to the usage of the words loan or collateral -for example- because they do not point towards this.
As for if the word (sale) was not customary in the customs of those people to point towards this; then it is not sound in the marital agreement.
With this we conclude in what has preceded two subjects:
1- The ruling of marriage through words besides marry and giving in marriage.
2- The ruling of the marital contract of the jester.
And success is granted by Allah.
Shaykh Abu Hatim Yusuf Al-‘Inaabi Al-Jazaa’iree – may Allah preserve him.
25th, Saffar, 1438H.
Abu ‘Abdirrahman ‘Abdullaah bin Ahmed Ash-Shingaani.