2879. According to the rulings of non-Shi’a scholars, except for a few of them, the presence of a witness is a condition for the validity of a marriage. The Hanafis, Shafi’is and Hanbalis consider it to be necessary at the time of pronouncing the formal expressions of marriage. As for the Malikis, they expand the time frame to the moment before consummation. This condition however is not consequential in the view of the Shi’i scholars.
Hence if a non-Shi’a individual who follows the view of the majority of scholars from amongst them, contracts a marriage without the presence of a witness, the marriage will be void in accordance to his own denomination, and the woman will not become his wife. In this case, a Shi’a man may—according to the principle of ilz¡m—marry that woman.
2880. According to the rulings of non-Shi’a scholars, it is not permissible for a person to marry a lady and her paternal aunt, or a lady and her maternal aunt, and may only marry one of them. Hence if the marriages are contracted simultaneously, both the marriages will be void. If they are not contracted simultaneously, then the second one will be void. However, according to Shi’a scholars, it is permissible to marry both at one time with the permission of the paternal and maternal aunt, respectively.
Hence, if the follower of the non-Shi’a denomination simultaneously marries a lady and her paternal aunt, or marries a lady and her maternal aunt, the marriage contract with both of them is void according to his own denomination. A follower of the Shi’a denomination may marry either one of them based on the principle of ilz¡m. However, if the marriage is not contracted simultaneously, a follower of the Shi’a denomination may marry the second lady.
2881. According to non-Shi’a denominations, in the divorce of a y¡’isah or a non-b¡ligh girl, who has consummated her marriage, it is mandatory upon the divorced lady to observe the ‘iddah. It should be noted that some of the non-Shi’a denominations have made some distinctions in the case of a non-b¡ligh girl. However, in accordance to the Shi’a denomination, it is not necessary for a y¡’isah or a non-b¡ligh girl to observe an ‘iddah.
Therefore, according to non-Shi’a denominations, they are obligated to observe the rules of ‘iddah. However, if a y¡’isah or a non-b¡ligh girl converts to shi’ism, it will not be obligatory on her to observe the ‘iddah. In the event that her divorce is revocable, it is permissible for her to demand her nafaqah (financial support) for the period of her ‘iddah from her ex-husband who is not a Shi’a. It is also permissible for her to marry another person during that period.
Similarly, if a non-Shi’a individual converts to shi’ism, he may marry the sister of his divorced wife who is a y¡’isah or a non-b¡ligh girl, even though she may still be in the period of her ‘iddah in accordance to non-Shi’a denominations. It will not be necessary for him to observe the precepts of ‘iddah in this case.
2882. If a person who belongs to a non-Shi’a denomination divorces his wife without the presence of two just witnesses, or divorces a part of his wife’s body, such as her finger, then such a divorce will be valid according to his denomination. However, according to the Shi’a denomination, such a divorce is not valid. Therefore, a Shi’a individual may marry the divorced lady upon the completion of her ‘iddah in accordance with the principle of ilz¡m.
2883. If a non-Shi’a individual divorces his wife who is in the state of ¦ay¤, or divorces her during the period of purity from ¦ay¤ wherein he has had intercourse with her, then such a divorce will be valid according to his denomination. However, according to the Shi’a denomination, such a divorce is not valid. Therefore, in accordance with the principle of ilz¡m, he may marry the woman upon the completion of her ‘iddah.
2884. According to the Hanafi denomination, and some other non-Shi’a jurisprudents, if a person divorces his wife under duress or compulsion, the divorce will nonetheless be valid. However, according the Shi’a denomination, such a divorce is not valid. Therefore, in accordance with the principle of ilz¡m, a Shi’a individual may marry a lady who has been divorced by her husband who was acting under duress or compulsion, in the event that she follows the Hanafi denomination or those who share the same views as them (in this issue).
2885. If a non-Shi’a individual takes an oath not to perform a particular task, and should he do so, his wife would be divorced, and then goes on to perform that task, his wife will be divorced according to his denomination. However, according to the Shi’a denomination, an oath cannot effect a divorce. However, in accordance with the principle of ilz¡m, it is permissible for a Shi’a individual to marry the lady upon the completion of her ‘iddah.
Similarly, according to non-Shi’a denominations, it is permissible to divorce a lady in writing. However, according to the Shi’a denomination, a divorce cannot be realized in writing. However, in accordance with the principle of ilz¡m, a Shi’a individual may marry a lady who has been divorced in writing upon the completion of her ‘iddah.
2886. According to the legal ruling issued by Abu Hanifah, as narrated by Ibn Quddamah, if a person buys an item without seeing it, based on the description given by the seller, and later sees it, he reserves the option of observation, even if the item matches the description of the seller. However, according to the Shi’a denomination, he does not reserve the option of observation in this case. Therefore, if a Shi’a buys an item from a follower of the Hanafi denomination based on the description provided by the seller, and later sees it, the Shi’a will reserve the right of observation in accordance to the principle of ilz¡m.
2887. In the Hanafi and Shafi’i denominations, as narrated by Ibn Quddamah in the text al-Mughniyy, if a person sustains a loss in a transaction, he does not reserve the option of ghabn . Therefore if a Shi’a buys an item from a person of the Hanafi or Shafi’i denomination, and it transpires that the seller has sustained a loss, then in accordance with the principle of ilz¡m, the Shi’a may nonetheless compel the seller to honor the transaction.
2888. In the Hanafi denomination, the validity of a transaction of salam—the sale of an abstract commodity delivered at a future date in exchange for advance payment—is only valid if the commodity is corporeally present at the time of contract. However, according to the Shi’a denomination, this condition is not consequential in the validity of the transaction. Therefore, if a Shi’a carries out a transaction of salam with a Hanafi individual, and the commodity is not corporeally present, then in accordance with the principle of ilz¡m, he may compel the Hanafi seller to void the transaction. The same applies if the buyer was a Hanafi at the time of contract, but converted to shi’ism later on.
2889. If a non-Shi’a individual passes away, and he leaves behind a non-Shi’a daughter, and he also has a brother, then if his brother is a Shi’a, or converts to shi’ism after the death of his brother, then in accordance with the principle of ilz¡m, he may take the remainder from the estate of the deceased by ta‘sib, even though ta‘sib is not valid according to the Shi’a denomination.
Similarly if a non-shi'a individual passes away and leaves behind a non-shi'a sister, and also a paternal uncle who shares the same mother and father, then if the paternal uncle is a shi'a or converts to shi'ism after the death of his nephew, then in accordance with the principle of ilz¡m, he may claim the amount that is accorded to him by ta‘sib. The same ruling applies in all the other cases of ta‘sib.
2890. According to non-shi'a denominations, the wife of the deceased inherits from his entire estate, including cash, commodities, lands, gardens and other items. However, according to the shi'a denomination, a wife does not inherit the land, neither the corporeal land nor its value. However, if the deceased in a non-shi'a individual and his wife is a shi'a, then in accordance with the principle of ilz¡m, the shi'a lady will inherit the land.
The above was merely a section of the rulings that fall under the principle of ilz¡m. Other cases such as the last will of a person for his inheritors, pronouncing the formal expressions of marriage in the state of ihram, a neighbour’s right to pre-empt a sale, the option of a condition, and the option of ta¥riyah are all subject to the principle of ilz¡m.
