Saleh

The Islamic marriage contract formula is very interesting. It shows the bride's side initiating the transaction and the groom's side bringing it to a closure. Yet, most commonly, the bride's side's initiative is in actuality a response to the groom's initial marriage proposal الخطبة

The legal and ethical import of the traditional formula is the idea of mutual consent, which is the sine qua non of any valid marriage. When we say about a marriage contract that it was concluded with إيجاب وقبول we mean that the condition of mutual consent was fulfilled and that the marriage is therefore valid.

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Note added at 2003-09-17 04:13:30 (GMT)
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On Alaa\'s added notes:

One of the joys of participating in KudoZ is the amount of learning that one can reap just by triggering an expert\'s expostion of fascinating details. That is why KudoZ is so addictive, and that is why having people like Alaa is priceless.

The example we are debating here clearly shows how a translator\'s prior knowledge (or lack of knowledge) of some concepts can affect translation decisions and choices. Unaware of the details that Alaa explained, I would construe the exchange of consent statements as serving no purpose other than the verbalization of consent.

Based on this understanding, I see the Arabic phrase إيجاب وقبول as making the two-part formula of the exchange explicit (although who initiates which part and who responds remain unstated) while making the priniciple of consent implicit. As a translator of a marriage certificate from Arabic to English, I would be inclined to state the traditional Arabic phrase إيجاب وقبول as \"mutual consent,\" thereby making consent explicit and leaving out the two-part formula as irrelevant to an English translation of a marriage certificate.

Stated differently, إيجاب وقبول is the verbal equivalent of a handshake, which cannot happen unless one hand is extended and the other joins. In the end, you either have a handshake or you don\'t, and if you do, then that is the event being captured.

If the phrase إيجاب وقبول occurs in a context where the procedural detail is being discussed, then the translation would have to reflect that detail. I just did not see the importance of it in a marriage certificate.

But with Alaa\'s explanation, I see an interesting point. If the translator is aware of consent and the verbalization of consent as two separate requirements, one being part of the conditions, the other being part of the correct formula, as Alaa has explained, and if the translator construes the phrase إيجاب وقبول as a statement of the verbalization of consent, not of consent per se, then the English phrase \"mutual consent\" would not be an accurate translation of إيجاب وقبول. It may be possible to conceptually separate consent from its verbalization and to still identify إيجاب وقبول as signifying consent by a verbal maneuver. For example, instead of \"by mutual consent,\" one can write \"by exchange of consent statements.\" To me, that would have the value of giving إيجاب وقبول its true significance, i.e., of framing it within the recognized ethics of marriage. This is obviously a bias of mine, and, again, it shows how what we know and what we hold significant do in fact affect our choices as translators.

Regarding the initial proposal by the groom, I only mentioned it to indicate my view that in a consent process, the validity of consent rests not on who initiates the process, but on the presence of certain conditions: the legal competence of the parties, full information being exchanged, the internal disposition (assent), and the externalizing of that assent, whether orally or in writing.

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Note added at 2003-09-17 06:14:15 (GMT)
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Reading Alaa\'s explanation again, I can see that the expression إيجاب وقبول can be taken to signify, in addition to the verbalization of consent, the specific form of verbalization. If taken as such, and if deemed significant enough, it would need to be reflected in the translation.

Looking at marriage documents from various countries, I see that the formula is treated differently. In Jordan, for instance, the expression إيجاب وقبول is not used, but the actual words are stated:

صيغة العقد: في مجلس العقد الشرعي، قال وكيل الزوجة والدها للزوج زوجتك موكلتي ابنتي (الاسم) على كتاب الله وسنة رسوله وعلى المهر المقرر فأجاب الزوج على الفور وأنا قبلت الزواج منها وإني كفؤ لها بإذن الله تعالى

To me, this shows an extraordinary significance attached to the formula itself.

In Kuwait, the certificate is much simpler, describing the marriage as:

صحيحاً نافذاً بإيجاب منها وقبول من الزوج المذكور

In Syria, probably reflecting the secular orientation of the Ba\'th government, the legally binding document is not the contract, but the registration of the marriage in the Civil Register. This registration document makes no mention of consent, verbalization, formulas, dowry, or witnesses. Only names, addresses, nationalities, and dates are mentioned.

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Note added at 2003-09-17 06:54:40 (GMT)
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I believe that jurists chose the word إيجاب in reference to the form of the sentence being what logicians call \"a propostion,\" that is a positive declarative statement, not involving a request, a command, a prohibition, an exclamation, or an interrogation.

عربي term (edited): ����� � ����

Monzer's suggested "offer and acceptance" is also good.

Here is an explanation from a previous answer to kudoz question "http://www.proz.com/kudoz/322155":

الإيجاب و القبول refers to what is called in Family shariah صيغة العقد which in its most basic and minimal form consists of the agent (in this case the father) stating to the groom:
زوجتك ابنتي
and the groom responding
قبلت


Hope this helps.

Alaa Zeineldine




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Note added at 2 hrs 18 mins (2003-09-16 21:57:09 GMT)
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This is a note on Fuad\'s mention of the خطبة as a step in الإيجاب و القبول:

The engagement period does not constitute a contractual commitment or part of the marriage contract in Islam. It provides a period of aquaintance for both parties to ensure their willingness to go ahead with the marriage. In this period the \"khitba\" provides the following protection: 1) no suitor is allowed to propose to that bride-to-be because of the prophet\'s prohibition: لا يخطب أحدكم على خطبة أخيه, and 2) the engagement can be broken with none of the contractual or legal obligations or consequences of a divorce.

The marriage contract itself in Islam has two requirements for validity: 1) meeting a set of conditions شروط العقد, and 2) following a particular form صيغة العقد. The issue of mutual consent that Fuad mentions comes under the conditions, which include mutual consent, the presence of a guardian for the bride, the presence of two witnesses, a dowry offered by the groom, and public disclosure. Of course there are slight variations in the details between different schools. The form of the contract صيغة العقد is simply the procedure of إيجاب و قبول, which takes the form of a couple of words exchanged by the guardian and the groom the witnessing of which provides proof for the record and for public knowledge that the mentioned conditions have been met. There is flexibility in the format of الإيجاب و القبول. What I have provided is the most basic minimal form according the authentic sources of sharia. It is recommended also that more wording is included, such as على سنة الله و رسوله و على الصداق المسمى بيننا. The contract is not invalid if the exchange is made in different words as long as they serve the same effect even if the groom starts the exchange. However, the more authentic sources agree that the bride\'s side begin the proposal. The exact words do not matter if the effect is achieved.

In summary, mutual concent is a concept embodied in the conditions of the contract while الإيجاب و القبول is a process that must be performed and witnessed and it is صيغة العقذ according to the مصطلح.

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Note added at 10 hrs 52 mins (2003-09-17 06:32:02 GMT)
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Thank you Fuad for your note. I think we are narrowing the difference. It is indeed an interesting coincidence that the word synergy is being discussed in a parallel thread at the same time.

I believe that your suggested phrase \"exchange of consent statementS\" would be acceptable in this context. But while I do take liberties in other subjects, I tend to be a literalist with Islamic sharia. Since this has become lengthy anyway, let me add to the topic some definitions from محيط المحيط:
الإِيْجَاب مصدر أوجب. ويُطَلق في الاصطلاح على معانٍ منها طلب الفعل مع المنع عن الترك وهو خلاف الاختيار. ومنها التلفُّظ الذي صدر عن أحد المعاقدين أولاً من أيّ جانبٍ كان. ومنها جعل الشيءِ واجبًا.




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Note added at 15 hrs 3 mins (2003-09-17 10:42:52 GMT)
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The forms that Fuad quotes are indeed interesting, especially the one from Jordan which shows significant attention to the procedure. The exchange quoted even calls out an aspect that is not necessary for the validity of the contract, but is considered by the majority of scholars as a requirement for the success of the marriage therafter, this is the compatibility between the bride and the groom, namely الكفاءة. Islamic scholars contend that in general the husband should match or exceed the social and educational level of the wife, with hard and fast rules as to what constitutes compatibility, but it is left to common sense and custom. Exceptions to this are permitted by the sharia.

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Note added at 15 hrs 4 mins (2003-09-17 10:43:34 GMT)
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I meant with NO hard and fast rules.

not needed.

الإيجاب هو قول المرأة المخطوبة : زوّجتك نفسي على كتاب الله وسنة نبينا محمد الصداق المسمّى بينناو .............الخ
القبول هو قبول الرجل الخاطب بكلمة قبلت
أرجو ان تزوري هذا الموقع

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Note added at 2003-09-20 14:19:07 (GMT)
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وعلى الصداق المسمى بيننا

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Note added at 2003-09-20 14:21:18 (GMT)
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(ايجاب المرأة و قبول الرجل)