Consensus that the Prohibition Benefits the Invalidity of the Contract

প্রশ্ন · Question

Respected scholar Abu Yasin, may Allah ﷻ protect
you, Assalamu Alaykom wa Rahmatullah:
It is mentioned in the book, The Islamic Personality Volume 3 , that:
“Also the Sahaabah may Allah be pleased with them inferred the
corruption and the invalidity of contracts from the prohibition, from
that is Ibn 'Omar's proof of the invalidity of marrying the polytheist
women by the saying of Allah Ta'ala: ِكَاتِ
(وَلََ تَنْكِحُوا الْمُشِّْ Do not
marry polytheist women...” and no one disapproved this of him so it
was a consensus”.
My question is, Barak Allahu feekum, how is the matter a consensus
when the evidence is apparent in the verse?
Wassalamu Alaykom wa Rahmatullah

উত্তর · Answer

Wa Alaykom Assalam Wa Rahmatullah Wa Barakatuhu,
In order to clarify the answer to your question, I will provide the full
text that you are asking about, under the chapter: “Prohibition of
Dispositions and Contracts”:

(The prohibition of dispositions and contracts which benefit their
verdicts like the sale, the marriage and the likes returns to either the
contract itself or to something else. If it returns to other than the
disposition and the contract, like the prohibition of the sale at the
call time of the Jumu'ah prayer; it doesn't invalidate or corrupt the
contract or the disposition. But if the prohibition returns to the
disposition itself or to the contract itself then it does affect them and
make them either inva lid or corrupted. The evidence that the
prohibition affects the dispositions and makes them invalid or
corrupted is the saying of the Messenger ﷺ:
«مرُنا فَهُوَ رَد
َ
مَنْ عَمِلَ عَمَلاً لَيْسَ عَلَيْهِ أ »
“whoever does an action different to our matter it must be rejected”
compiled by Muslim, it means it is invalid and not accepted, and it is
undoubtedly that the prohibited matter is not a commanded matter
nor is it of the deen, so it is rejected, and there is no meaning for it
being rejected except the invalidity and the corruption. Also the
Sahaabah may Allah be pleased with them inferred the corruption
and the invalidity of contracts from the prohibition, from that is Ibn
'Omar's proof of the invalidity o f marrying the polytheist women by
the saying of Allah Ta'ala:
ِكَاتِ
(وَلََ تَنْكِحُوا الْمُشِّْ ...)
Do not marry polytheist women...” [Al Baqarah: 221], and no one
disapproved this of him so it is a consensus, and from that is the
Companion's proof of corruption of the riba contracts, i.e. their
invalidity, by His ﷻ saying:
(...وَذَرُوا مَا بَق ِيَ مِنَ الرربَا ...)
and give up what remains (due to you) from riba (usury)...” [Al
Baqarah: 278], and by the saying of the Messenger ﷺ:
«لا تَبيعُوا الذَّهَبَ بِالذَّهَبِ وَلا الوَرِقَ بِالوَرِقِ »

“Do not sell gold by gold and do not sell silver by silver” compiled by
Muslim. All these are evidences that the prohibition affects the
dispositions and make them invalid or corrupted. This is if the
prohibition is a decisive request for abstention and denotes
forbiddance, but if the prohibition does not denote forbiddance but
denotes dislike; it doesn't affect the dispositions and the contracts,
because the effect comes from the forbiddance, so the forbiddance
of the disposition and the contract makes it invalid or corrupted.)
End.
By looking at this text, it becomes apparent that the meaning of
Ijmaa’ (consensus) in this context is the Ijmaa of Sahaba, may Allah
be pleased with them, that the prohibition contained in the saying of
Allah ﷻ:
ِكَاتِ)
(وَلََ تَنْكِحُوا الْمُشِّْ
Do not marry polytheist women...” states the invalidity of the
marriage contract, i.e. its nullity, Abdullah bin Omar (ra) deduced
from this Verse the invalidity of the marriage contract with polytheist
(mushrik) women, and none of the Sahaba denied this, which proves
that the Sahaba view the prohibition related to contracts and
dispositions in the Shariah texts as mentioned in the Verse above
means the invalidity of the contract or the disposition... and this is
different to the direct implication of the verse, because the verse
indicates a direct prohibition of marrying polytheist women, but the
Sahaba consented on top of this that the prohibition contained in the
Verse proves the corruption of the contract i.e. its invalidity, so this is
the position of the Ijmaa’ (consensus), and it is a matter which the
Ayah does not reveal, but is showed by the Ijmaa’.
To make the picture clearer for you, I will present to you two
matters:

First: a man asks you: is he permitted to marry a Mushrik woman?
You will respond: No it is prohibited, then he asks you: what is the
evidence? You will reply:
ِكَاتِ
(وَلََ تَنْكِحُوا الْمُشِّْ
Do not marry polytheist women...” [Al Baqarah: 221].
Second: A man asks you that he is married to a Mushrik woman, so
should he continue (his marriage) or what should he do? In this
instance, it is not enough to present the Verse, so if you said to him:
ِكَاتِ﴾
﴿وَلََ تَنْكِحُوا الْمُشِّْ Do not marry polytheist women...” [Al Baqarah:
221]. He will tell you that he will not do so in the future, but he is
asking about his current wife... thus your answer will not be
sufficient unless you tell him that the consensus of the Sahaba
agreed that the prohibition contained in the Verse proves the
invalidity of the contract, i.e. you answer him that he should end his
marriage contract with his wife because it is a nullified contract as
the prohibition in the Verse to further the nullity of the contr act by
Ijmaa’.
While you believe here that the answer is not complete without
mentioning the Verse, and you say that a prohibition lies in the
Verse, then you add by saying that the meaning of the prohibition by
Ijmaa’ is the invalidity of the contract, without the Ijmaa stating that
the prohibition benefits that invalidity of the contract, you would
have not been able to answer his question on his previous marriage.
I hope that the matter has been clarified for you.
Your brother,
Abu Yasin