Dummy Husbands of Cairo and Dummy Landowners of London: Legal Subterfuges

that Mamluk Wives and Franciscan Friars Shared in Common

 

 

Introduction

On June 9, 1381, Ulfiyya bt. Jibril from the city of Ramala, a divorcee, married a certain Khidr b. Kamal al-Nabulsi in Jerusalem.  This turned out to be an extremely short marriage, as Khidr repudiated her on the following day.  From their marriage contract we learn that her previous husband, Ali al-Ramli, had divorced her and that, most likely, Ulfiyya’s marriage in Jerusalem was intended to allow her Ramlan husband to take her back.[1] 

Across continental Europe in 1225, a century-and-half prior to Ulfiyya’s marriage, John Iwyn gave, for the salvation of his soul, a piece of land to the community of the city of London.  He imposed a key condition in this sale, which was that the city could own the land as long as it would provide for the poor Franciscan friars.  This account, found in the Prima Fundatio Fratrum Minorum Londoniae, exemplifies an expedient way of giving practical benefits of land ownership to the friars who could yet say that they owned nothing.[2]

 

            The afore-mentioned anecdotes bespeak of a subterfuge, a dummy entity, which exists solely to enable parties to a transaction to create a loophole in an otherwise legally airtight situation.  The only reason Ulfiyya and Khidr were married was to enable Ali to vindicate his repudiation of Ulfiyya, and to have Ulfiyya return to him, her first husband.  The only reason that the city of London came in possession of the land was to enable John Iwyn to provide the friars benefits of land ownership, without actually owning land.  Both Khidr and the city of London were dummy entities, holding wife and land respectively, for the benefit of someone else. 

Ulfiyya underwent with Khidr a tahlil marriage, the roots of which are found in the Qur’anic injunction requiring a divorced woman seeking a lawful return to her first husband to marry another man, consummate marriage with him, and then be divorced by him. [3]  Similarly, the city of London came in possession of John Iwyn’s land ‘to the use of’ the friars, enabling them to not break their vow of poverty based on the Regula Bullata, in which Francis had enjoined his followers to live “in obedience, without property and in chastity.”[4]

            This paper is about the dummy second husband in Islamic tahlil marriages and the dummy landowner in English conveyances.  Part I sets the theological and historical background of tahlil; the contractual nature of an Islamic marriage; and, reasons for popularity of tahlil in Mamluk society.  Part II explains how land conveyance came to meet the needs of the friary and sowed the seeds of the modern-day straw man.

Part III likens the Hanafi approach to the tahlil contract, which does not account for the intent of the contracting parties, to the late medieval model of enfeoffment.  As in the Hanafi tahlil, the enfeoffment served as a valid device for transfer notwithstanding the intention of the feoffer and feoffee.  Part IV discusses the strong suspicion that Hanbalis harbored for tahlil and Ibn Taymiyyah’s attempt at abolishing the institution, and likens his attempt to the decision of common law courts in America to abolish the modern-day straw man.  Finally, Part V discusses the key notion of intent in the Maliki determination of a valid tahlil marriage and the modern day requirement that a trustor and trustee articulate their intention behind the transfer of land.  This section also discusses the divergent results that emphasis on intention yields in the case of the Malikis and in the case of the trustor/trustee. 

 

 

 

 

 

I.

 

Tahlil Marriage

 

Tahlil is a notion in Islamic law referring to a couple’s rights to remarriage in a case in which the husband has irrevocably divorced his wife three times.[5]  As mentioned above, it requires the wife to marry a second husband; to consummate that marriage; and then to be divorced from the second husband.  Only then can the woman return to her first husband, eligible for re-marriage to him.  One of the meanings of tahlil is “to make lawful.”  In a tahlil marriage the second husband, the muhallil, provides the woman with tahlil, i.e. makes her lawful for marriage with the first husband who had thrice divorced her and who is therefore, al-muhallal lahu.  Tahlil is found in three textual sources: first, it is legislated in the Qur’an (2:230); second, it is found in a hadith[6] which stipulates that the man and the woman must “taste the sweet honey of sexual pleasure” during the tahlil marriage;[7] and third, it is found in a hadith in which both the muhallil and the muhallal lahu are cursed.” [8]  Classical discourse dwells on, among other issues, the intent of the woman and her second husband, the muhallil, at the time she is solemnizing her second marriage, and the question of whether the second husband may charge a fee for his services.

Traditional exegetes and theologians suggest that the tahlil rule serves as a deterrent to irrational and hasty triple divorce pronouncement by the husband.[9]   Al-Ghazali, for example, warned husbands against pronouncing triple repudiation, as a man might regret it and would be compelled to have a muhallil marry his former wife.  To contract a muhallil is a denounced act for which the husband would be the cause; besides, his heart [under the circumstances] would be at the mercy of someone else’s wife [that is, the wife of the muhallil], and at the mercy of the divorce which he [the muhalil] grants.[10]

Contemporary scholar, Khaled Abou El Fadl[11]

 

Women as chattel in the Islamic marriage relationship

           

The parallels between Khidr and the city of London as dummy characters in the opening anecdotes of this paper inevitably suggest parallels between Ulfiyya and the piece of land that John Iwyn gave to the city of London.  John Iwyne transferred land from himself to the London to enable John to provide material support to the friars and to enable the friars to not violate their vow of poverty.  In the same manner Ulfiyya was transferred from Ali to Khidr and back to Ali to enable Ali to overcome the divorce he had pronounced and that he sought to undo.  Ulfiyya’s human characteristics are muted as she bounces from husband to husband, emotionless and opinion-less.  A closer look at how historically Islamic law articulated marital relationships helps explain the limited agency that women like Ulfiyya had in their marital affairs.

Islamic law was historically formulated and articulated under many rubrics, paradigms or ‘law schools’ (madhahib, sg. madhhab) of which four major ones have survived in the sunni tradition.  The founders of these schools belonged either to the first generation of scripturalist experts who worked within a century-and-a-half after the Prophet’s death (Abu Hanifa d. 767; Malik ibn. Anas d. 795) or to the second generation that succeeded them (al-Shafi’, d. 820; Ahmad ibn. Hanbal, d. 855).[12]  In regards to laws of marriage and related affairs vis-ą-vis women, all four schools granted agency to the bride’s father prior to marriage; to the husband during marriage; and, for purposes of dissolution of marriage, to the husband again.

At a very basic level marriage in Islam was an agreement in terms of offer and acceptance between two contracting parties. But these parties were not necessarily the bride and groom.[13]  Malik explicitly likens the father’s power to that of a master, stating that no one may compel anyone to marry except the father who could compel his daughter.  For al-Shafi’i, “a woman does not conclude a marriage contract” or, more precisely, “does not tie the marriage knot.” [14] Abu Hanifa (most recognizing of women’s agency in contacting their own marriages) and says that women may contract marriages but again in Muwatta’ Shaybani  we see Shaybani declaring “There is no marriage without a marriage guardian,” [15]where refers to the father.

In the marital contract, the husband acquires milk (ownership, control, dominion including the right to lawful cohabitation) over his wife, in exchange for paying mahr or sadq (dower).  Payment of mahr was the single necessary monetary transfer associated with marriage.  Wealth given from the groom to the bride became legally her sole property.  Dower established the conceptual relationship between marriage and sale.  It is said that in the market the master buys his slave, whereas in marriage, the husband purchases his wife’s productive part.[16]  Jurists disagreed over whether a marriage could be contracted using terms for transferring ownership, giving a gift, purchasing or selling

While the right to contract the marriage belongs to the father, the right to dissolve belongs singly to the husband.  The husband may execute talaq (divorce), literally meaning ‘release,’ by oral pronouncement.  In contrast to marriage, which was a bilateral contract, talaq was a unilateral act. When a husband pronounced triple talaq, he had issued irrevocable divorce.  If he desired to take his wife back, she would have to undergo a tahlil marriage.

 

Divorce Oaths, Tahlil marriage and the Mamluks

Tahlil marriages were especially rampant in the Mamluk Sultanate (1250 – 1517 AD) of Egypt.  The widespread use of tahlil was a function of the widespread practice of divorce oaths which had come to be the most solemn form of oath.  A divorce oath, or an oath on the pain of divorce, was a legal mechanism that made the repudiation of one’s wife contingent on the non-fulfillment of the sworn undertaking. A divorce oath was articulated as such, “May my wife be repudiated if I enter this house.”  Upon such a proclamation, if a man enters the house, divorce immediately followed. Thereafter, if he continued to have sexual relations with his wife he is committing adultery. To make the divorce oath stronger, a man would articulate an irrevocable divorce, “May my wife be repudiated three times if I enter this house.”  By this not only is the man putting his marriage on the line, but he also accepting that he will not be able to remarry his wife until she has married and had sex with another man.  This second marriage, the tahlil marriage, and its consummation would only be arranged with the intention and for the sole purpose of permitting the woman to the first husband.

In a society in which public status was seen to be derived from power over women (and slaves and children) men were expected to use their patriarchal privileges to bolster their commitments in the public sphere.[17] Divorce oaths came to be one of the ways men would strengthen their vows.  They were popular in all classes of societies and were used in all sort of financial, social and familial circumstances.  Members of the military and civilian elite used divorce oaths to cement alliances and express commitments.  Under certain circumstances, men were even compelled to undertake divorce oaths as part of a judicial process.

Oaths could not always be respected and promises had to be broken so there was a high rate of divorce in Mamluk society. As divorce rates increased, so did the use of tahlil marriage to circumvent the effect of breaking the promise.  In elite households, according to Ibn Taymiyyah, the strategy of marrying a slave was common for it protected the honor of the wife and that of the household in general.[18] Elsewhere, the widespread practice of tahlil supported an industry of legal subterfuges intended to circumvent divorce oaths.

II.

The Feoffee to Uses and the modern Strawman

Franciscan friars who came to England during the thirteenth century were subject to the rule of their order which prescribed the most perfect poverty.  The friars were disallowed from owning, individually or collectively, any wealth or property.  Despite this high ideal the friars, who had come to town as missionaries, needed dormitories to sleep in[19] and hospitals and houses to take care of the poor, the sick and the aged.

Topic sentence. Faithful followers wanting to offer their own homes to the friary, and aware of the friars’ vow to not own wealth, devised a strategy to circumvent their vow of poverty:  they would give houses and hospitals to the use of the friars without bringing these properties in the friars’ ownership.[20] If someone desired to convey land to a member of the friary, he simply conveyed the land to a layman ‘to the use of’ or ‘as an inhabitation for’ the friars.[21] Plots of land in London were thus conveyed to the city and its municipal corporations for the benefit of the Franciscans (passive).

Because the ordinary method of conveying land was by feoffment, a person who conveyed land to uses was known as the feoffor, the person to whom he conveyed as the feoffee to uses, and a person for whose benefit the use was created as a cestui que use.

The feoffee to uses would be the owner or legal tenant of the land who was to bear the burdens incumbent on owners and tenants, but he was to hold his right for the benefit of another. No law or equity court would enforce the feoffee to use’s promise that he would permit the cestui que use to receive the rents and profits. He was only morally obligated to do so, and this moral obligation was enforced by threatening him with spiritual punishment.[22]

            The straw man is the modern feoffee to uses.  A straw man is defined as a person who holds a naked title for the benefit of another.  The term straw man originated in the early British halls of justice.  Professional witnesses loitering in such halls signaled their willingness to testify to any matter, for a price, by wearing straw in their shoes. The use of a ‘Man of Straw’ in real estate contracts is a questionable practice, the product of insincerity, and mere sharp commercialism.

We have all heard of a race of men, who used in former days, to ply about our own courts of law, and who, from their manner of making known their occupation, were recognized by the name of Strawshoes.  An advocate or lawyer who wanted convenient witness, knew by these signs where to meet with one, and the colloquy between the parties was brief.  “Don’t you remember?’…said the advocate.  ‘To be sure I do,’ was the instantaneous reply.  ‘Then come into the court and swear it.’ And Strawshoes went into the court and swore it.[23]

 

(compare the feoffee to use and straw man to the muhallilI: landowner desirous of transferring property would cause bare title to vest in a third party, intending the “straw” to hold it for the benefit of one or more beneficiaries[24])


 

III.

Hanafi’s and Enfeoffment

 

In some cases the feoffment might be considered as a ‘gift upon condition,’ and in others a written agreement about the occupation of the land might be enforced as a written covenant. [25]  The lord could not look behind the feoffees to the feoffer who no longer had any rights in the land. It was nothing to the lord that the enfeoffee was allowing another person to enjoy land which by law was his.  Although this practice was quickly stopped by subsequent Act of Parliament, the people had learned that feoffment to uses made the interest of the cestui que use devisable, freely alienable, and free from forfeiture and the incidents of feudal tenure.   By so doing the transferor was able to avoid both the problems of creating a testamentary devise and the burdens of feudal incidents. 

The landholder (the feoffor granted his lands, in fee simple, to a group pf trustees (the feoffees) who thus became the legal holders of the land.  By prior arrangement, however, thr profits of the land would be made over to the by the feoffees to whomsoever the original grantor nominated (the custui que use), and after his death they would grant it to another party.—again, naturally, according to his wishes.  Frequently, the landholder would nominate himself as the first cestui que use.  He thus succeeded in by[assing feudal inheritance law, for technically the land was never actually inherited.  The great advantage of the use was its flexibility: time limits could be set on its operation, and any number of secondary conditions could be attached.  Feudal obligation could be evaded, for since a landholder did not legally hold any land that had been enfeoffed by him at the time of his death, his superior lord had no claim to its wardship, and it would continue to be held by the feoffees.[26]

Marginalization of Ulterior Motive: objective manifestation sufficient: Tahlil Contract represents its own legal category, The husband seeks the service of a validator (muhallil), i.e. a man who would wed his wife for a very short time, then divorce herm thus permitting the anxious husband to validly remarry her.  No consideration of the intentions of the muhallil or any other partner.  Stipulating a fee is reprehensible, but does not invalidate the marriage contract. when consummation of the marriage is lawful even if occurring in situations where the woman would otherwise be ritually off-limits such as menstruating, in a state of post-partem bleeding, or in a state of ritual consectration (ihram).

In the matter of marriage by means of the validator, Abu Yusuf held that if the stipulation of validation (tahlil) is stated in the marriage contract, then the contract is null and void; since the motive is illegitimate and it is mentioned in the contract, it had legal effect and the marriage is voided. But if the stipulation of validation is not stated in the contract, then marriage is legal and the motive does not count because it is not mentioned in the contract.[27]

Shaybani relates from Abu Hanifa that the second marriage can be consummated by a minor husband who has attained the age of majority and is therefore presumed to be sexually mature, even if he has yet not been declared an adult. In support of his position Shaybani cites a Prophetic hadith which indicates that a woman who has been triply repudiates cannot remarry her ex-husband until a second husband “experiences the sweetness of carnal enjoyment of her”; and he also cited two similar traditions from Ali b. Abi Taliban d Ayisha.  These traditions, Shaybani argues, contain no textual indicator that the act of intercourse to which reference is made is such that it would render the partners as muhsan and muhsana (man and woman liable to death by stoning).

Hanafi view of tahlil marriage to a minor (as expressed by Khassaf in his Makharij): a woman who seeks to remarry her ex-husband asks a close relative or a trustworthy person to purchase a minor slave at her expense, and the purchaser gives her the slave in marriage to her. Then, subsequent to consummation of the marriage, the owner of the slave gives him as a gift to the slave’s wife with the result of the marriage dissolved.[28]  According to Kassaf, the advantage of a minor husband is that he does not understand the matter well and therefore, will never disclose it to the ex-husband  or to others.  But the Hanafis accepted this hila because in this case, it is only the woman who seeks tahlil. According to the Hanafis if the second husband marries the women with the intent to make her lawful to her ex-husband without the knowledge of the former spouses, the tahlil is valid.  If, however, the second husband acts with the knowledge and consent of either the former spouses or at the explicit request of one of the ex-spouses, Abu Yusuf and Shaybani held that the woman does not become lawful to her ex-husband, although they disagreed as to whether or not the second marriage itself is valid

The male partner need not be sane.  Intercourse is valid even if the woman is asleep or in a swoon.

IV.

Abolition of the Straw man in (California) common law, the Two-to-Transfer Rule and the Hanbali position

           

Overtime straw men became useful for more than purposes of providing witnesses.  That “two-to-transfer” notion stems from the English common law.  At common law one could not convey land to oneself.   So when a husband desired to convey title to his wife, the unity of person associated with the marital status prevented a direct conveyance. It was necessary to use a third party to convey property to one’s wife. The husband had to convey first to another person who would then convey to the wife.

“(U)nder California law, a transfer of property presupposes participation by at least two parties, namely, a grantor and a grantee. Both are essential to the efficacy of a deed, and they cannot be the same person. A transfer of property requires that title be conveyed by one living person to another.[29] Moreover, the grantor could not make himself the grantee by conveying an estate to himself.”[30]  The Court of Appeal considered the same question and found the strawman to be indispensable. The most familiar technique for unilateral termination is use of an intermediary “strawman” blessed in the case of Burke v. Stevens.[31] If one hold property and wishes to convert it to joint tenancy which required for joint tenants to acquire their interests at the same time (unity of time) and by the same conveyancing instrument (unity of title), then the one can convey the property to a straw man (real or imagined legal fiction) who is the owner but only in name.  So, in order to create a valid joint tenancy where one of the proposed joint tenants already owned an interest in the property, it was first necessary to convey the property to a disinterested third person, a “straw man,” who then conveyed the title to the ultimate grantees as joint tenants.

California became a pioneer in allowing the Creation of a joint tenancy by direct transfer. Under authority of Civil Code section 683, a joint tenancy conveyance may be made from a “sole owner to himself and others,” or from joint owners to themselves and others as specified in the code.[32] Other courts have regarded the straw man requirement “as one of the obsolete ‘subtle and arbitrary distinctions and niceties of the feudal common law,’ and allowed the creation of a valid joint tenancy without the use of a strawman.[33]  The purpose of the amendment was to “avoid the necessity of making a conveyance through a dummy” in the statutorily enumerated situations.[34] Accordingly, in California, it is no longer necessary to use a straw man to create a joint tenancy.[35] “It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.” [36] Need to cite to Riddle v. Harmon?

Common sense as well as legal efficiency dictate that a joint tenant should be able to accomplish directly what he or she could otherwise achieve indirectly by use of elaborate legal fictions.

For the Hanbalis, the whole category of tahlil marriage is suspect and fraught with danger, and thus they try to limit its vaidity

Ibn Taymiyya’s attack on tahlil is accompanied by a sense of urgency and a deep apprehension about the spread of legal subterfuges in his days. Tahlil marriage, in particular, he regarded as the most abominable of the legal devices, denigrating the image of Islam in the mind of commoners, and by the Jews who branded Muslims mamzirim, the Hebrew word for bastard, on account of this practice.  Ibn Taymiyya accused muhallils of contracting simultaneous marriages with more than four women, and of incestuous marriage to a daughter and her mother.  Tahlil marriages were tantamount to adultery because they were often kept secret from the woman’s legal guardian, whose consent is necessary for the validity of the contract.  In some cases, Ibn Taymiyya claims, tahlil caused infanticide, as women killed children born from their disgraceful intercourse with the muhallil.[37]

According to Ibn Taymiyya, when the innovation of the oaths on pain of divorce was introduced, many jurists believed that they were binding upon violation, with no possibility of atonement. People thought that they could remove this immense oppression by using legal subterfuges to allow a wife to return to her husband via tahlil marriage, and some jurists even believed that God rewards those who contract tahlil marriages, for they permit the wife to the husband and remove the cause for corruption. This legal subterfuge was then used to overcome all other forms of binding divorce.  However, all past authorities and men of knowledge have denounced these legal subterfuges and their likes, regarding them as nullifying the wisdom of the divine law and the true essences of the versus of the Qur’an, as nothing less than derision and mockery of the Divine word.  (Rap 100).

Talk about Ibn Taymiyyah’s persecution (from other Rap paper). Outspoken against tahlil and evokes the age of the Prophet in a utilitarian fashion, as a means of defending himself against established consensus. He argues, for example, on the basis of a tradition from Ibn Abbas that the first Muslims considered triple repudiation as only a single, revocable divorce.  The same tradition also attributes the change in law to the second caliph, Umar b. al-Khattab, who wanted to deter Muslim men from taking divorce lightly.  According to Ibn Taymiyya, just as Umar changed the laws of divorce in the interest of the Muslim community, jurists must now revert to the practice of the Prophet in order to combat the evil practice of tahlil. This was radical re-thinking.

By the term ‘man of straw’ we understand one of no substance, one in name only, an irresponsible person having no property to respond in damages, who loans himself out to others to sign contracts as a purchaser knowing he is acting a lie—an office no honorable man should ask another to fill Houtz v. Hellman, 228 (1910)


 

 

V.

Malikis and Statute of uses: Intent absolutely necessary;

 

 

 

Prior to the Statute of Uses (1535) there existed in England a relationship known as trust.  One kind of a trust was the trustee held property for some temporary purpose and with active duties to perform, the trust was called active or special.  Thus if A conveyed land to B for ten years, to take the profits of the land and apply them to the use of C, B was an active or special trustee.[38]   Although the purpose of the Statute of Uses was to abolish uses, imaginative lawyers found holes in the statute. Courts eventually held that the statute did not operate if the feoffee to uses (the trustee) was given active duties to perform (that is, if he had duties beyond simply holding title to the property). statute of uses allowed feoffee to retain land only if he was taking responsibility for the land. 

This interpretation of the statute permitted chancery to reassert its equitable jurisdiction over uses under the new name of “trust.”1 The eventual bills (Statute of Uses) invalidated all uses that did not impose an active duty on trustees, withthe beneficiaries of the use being held as the legal owners of the land, meaning they had to pay tax. The Statute partially led to the Pilgrimage of Grace, and more importantly the development of trusts.  The diverse purposes for which the trust may be used range from a simple estate plan to provide for a surviving spouse and children in accordance with their respective needs, to commercial enterprises such as mutual funds, pensions, and various structured finance transactions. Lawyers have found many uses for the trust, particularly in situations where there are many beneficiaries or owners and it is desirable to avoid fragmented management of the property. The crucial point is that the trust provides managerial intermediation. Because the trustee manages the property on behalf of the beneficiary, the trust “separate[s] the benefits of ownership from the burdens of ownership.”  [39]

But the time and increased legal skill made the straw adaptable to more sophisticated uses. The straw may be employed in a completely legitimate manner, and when he is deemed the trustee of a passive trust, holding bare legal title and nothing else.  Another creative method of terminating a joint tenancy appears in Reiss v. Reiss (1941) 45 Cal.App.2d 740, 114 P.2d 718. There a trust was used. For the purpose of destroying the incident of survivorship, Mrs. Reiss transferred bare legal title to her son, as trustee of a trust for her use and benefit. The son promised to reconvey the property to his mother or to whomever she selected at any time upon her demand. (Id., at p. 746, 114 P.2d 718.) The court upheld this arrangement, stating, “(w)e are of the opinion that the clearly expressed desire of Rosa Reiss to terminate the joint tenancy arrangement was effectively accomplished by the transfer of the legal title to her son for her expressed specific purpose of having the control and the right of disposition of her half of the property.”[40]

For the Malikis, primary condition for validity of the tahlil marriage contract is that the muhallil be free of the stated or unstated intention to divorce the woman; His intention be to marry the woman ‘for the fundamental reason on which marriages are built, which is: perpetuation of association within the marriage’. [41] In addition, purpose of action, consent to action, and awareness of action, as well as public acknowledgement of action must all be part of this legal conduct.  Consummation of marriage must occur within the boundaries of lawful sex i.e., when the woman is ritually lawful for intercourse.  Relative to other schools, the Malikis stand out by paying attention to the mental (not just physical involvement of the woman in the tahlil situation.[42] The woman must not be asleep, nor in a swoon, nor demented. 

Malik held that tahlil is valid unless the second husband or the former husband intended it.  Maliki doctrine is that a tahlil produced by a temporary marriage is valid, unless no stipulation to this effect is made in the contract.  The Malikis rejected the hila of a second marriage with a minor boy, although The act of consummation of the second marriage must make both partners muhsan or muhsana, i.e. liable to death by stoning; thus the second Muslim must be an adult Muslim. [43]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


 

HAVE TOPIC/THESIS SENTENCES FOR EACH PARAGARPH

NEED TO PRESENT A CHART?

 

 

 

 

Not needed:

 

Story from biographer of founder of Mamluk state: in 1263 as Sultan al-Zahir Baybars attempted to secure the surrender of al-Malik al-Mugith, the Ayyubid ruler of Kark, Baybars promised under an oath on pain of triple divorce, not to cause him any harm.  Nonthless, Baybars was ultimately executed upon Baybar’s orders.  .  We are told by the Demascene chronicler Qutb al-Din al –Yunini that his wife, the mother of al-Malik al-Said resorted to tahlil marriage with a slave, who was afterwards murdered. (Rap 91.92)

 

tahlil designed to discourage hasty divorce; to prevent ill-usage of the wife by unlimited alternate divorce and reinstatement without a new marriage; to deter the husband from such a divorce by creating a formidable obstacle to his taking back the wife after she has been divorced the third time.  (Aharon Layish p. 173, 175)

The practice of tahlil was widespread to capture the attention and imagination of European travellers.  During his 1384 visit to Egypt, the Italian merchant Sagili reported that when a husband divorced his wife three times, the qqdi would send three blind men to have intimate relations with her for a whole day, and only after this could the couple remarry. His fellow  traveller Frescobaldi added that some people blinded themselves in order to become eligible for the job.

Among the Mamluks divorce became less of a domestic, familial matter between a husband and wife. 

According to al-Shafi’i “If a man marries a woman by means of a contract un due form while intending to keep her for one day or less or more, I do not nullify the marriage; I nullify the marriage only when its terms are invalid.  Only if the validator’s intention is made formally explicit in the contract does it result in cancelling the marriage, a judgment which is shared by the Hanafi Abu Yusuf:

 



[1] (Rap. 106)

[2] Travers Twiss, History of English Law Before Edward I, Cambrdieg University Press I p. 238

[3] 2:230; also Distinguish between muta and tahlil

[4] R.B. Brooke, The Coming of the Friars  (1975) at 120.

 

I [Francis] advise, warn and urge my brothers in the Lord Jesus Christ, that when they travel through the world, they shall not go to law or dispute or pass judgment on others… The brothers shall take nothing for themselves—neither house nor covenant nor any thing.  As pilgrims and sojourners I this world, serving the Lord in poverty and humility, they shall go confidently for alms…

 

[5] In Islamic law divorce, or talaq, is both revocable and irrevocable.   If revocable, the husband controls the right to return and no new marriage contract was necessary.  One of the occasions on which irrevocable talaq took place was when a husband pronounced three talaqs on successive occasions or at the same time.

 

[6]

[7]

[8] (S&A p. 2)

[9]

[10] Imam Ghazali recommends that a husband should restrict himself to one divorce utterance and not pronounce all three at once because the one utterance after the legal period of waiting indicates the intent, and he can benefit from retracting it should remorse develop during the period of waiting and which he can renew the marriage if he wishes after this period.

 

[11]

[12] (S&A article; p. 1)

 

[13] Ali p. 38

[14] Ali p. 43

[15] Ali p. 43

[16] . (Ali, bottom p. 136).  (Ali, bottom of p. 52)

 

[17] (Rap 89, 90, 106)

[18] Rap 94

[19] F.W. Maitland Equity: A course of Lectures (Cambridge University Press) 

[20] History of English Law

[21] . (Wash LQ).

[22] (Wash U L Q)

[23] 33 Quart. Rev. 344 (1834)

[24] BUL

[25]   (The History of English Law Before the Time of Edward I.  Traver Twiss. Cambridge University Press p. 231, 232 See google books).

[26] Chris Given-Wilson The English Nobility in the Late Middle Ages: The Fourteenth Century

P. 140

[27] Abu Hanifa (Satoe p. 344)

 

[28] Manumission was the equivalent of divorce, Explain.

[29] (Civ.Code, s 1039.)

[30] Clark, supra, at pp. 295-296, 70 Cal.Rptr. at pp. 926, 927, Twelve years ago, in Clark v. Carter (1968) 265 Cal.App.2d 291, 295, 70 Cal.Rptr. 923,

[31] Burke v. Stevens (1968) 264 Cal.App.2d 30, 70 Cal.Rptr. 87. 

 

[32]  (See Bowman, Real Estate Law in California (4th ed. 1975) p. 105.)

[33] 4 A. Powell on Real Property (1979) p. 616, p. 670, citation omitted

[34]  (Appendix to Journal of the Senate, California, Reg.Sess. 1955, Vol. 2, Third Progress Report to the Legislature, March 1955, p. 54.)

[35] (Donovan v. Donovan (1963) 223 Cal.App.2d 691, 697, 36 Cal.Rptr. 225.) 

[36] (Justice Oliver Wendell Holmes, Collected Legal Papers (1920) p. 187.)

[37] Rap 99

[38] Bogert Trust and Trustees § 2

 

[39] Wills Trusts and Estates. Dukeminier, Jesse. Aspen.  Section A. Introduction

[40] (Id., at p. 747, 114 P.2d at p. 722.)

[41] Stowasser 275

[42] S&A 35

[43] Discuss Shafi’I postion in footnote S&A 35