Agency in Marriage Contracts and Fudūli Marriage: An Inquiry within the Framework of Islamic and Ottoman Law
ISTANBUL HUKUK MECMUASI, cilt.84, sa.2, ss.654-679, 2026 (ESCI, TRDizin)
- Yayın Türü: Makale / Tam Makale
- Cilt numarası: 84 Sayı: 2
- Basım Tarihi: 2026
- Doi Numarası: 10.26650/mecmua.2026.84.2.0008
- Dergi Adı: ISTANBUL HUKUK MECMUASI
- Derginin Tarandığı İndeksler: Emerging Sources Citation Index (ESCI), TR DİZİN (ULAKBİM)
- Sayfa Sayıları: ss.654-679
- İstanbul Üniversitesi Adresli: Evet
Özet
Contrary to the requirement of personal attendance prevalent in most modern jurisdictions, Islamic jurisprudence does not regard the physical presence of the contracting parties as a prerequisite for the validity of the marriage contract, thereby permitting its conclusion through agency (proxy). In this context, individuals with legal capacity may manifest their intent through an agent appointed either individually or jointly. Furthermore, "dual representation" wherein a single individual acts as a proxy for both parties, is legally sanctioned. Such transactions executed by an authorized proxy yield legal consequences equivalent to those performed by the principals themselves. Regarding the requirements for validity, the law stipulates that while the principals must possess full legal capacity, the proxy need only possess the power of discernment. From a denominational standpoint, while the Hanafi school affirms the capacity of both men and women to independently appoint a proxy for the marriage contract, the other three Sunni schools subject such appointments to the broader doctrine of guardianship, effectively restricting this right to men.These proxy relationships may be established through oral declaration orwritten instrumentfor evidentiary purposes. Should a proxy exceed their delegated authority, the resulting contract is deemed non-operative and enters a suspended status. Its ultimate validity depends upon the principal's subsequent ratification; absent such consent, the contractis rescinded. Similarly, the institution ofthe fuz & umacr;l & imacr; (unauthorized agent) involves an individual acting on behalf of another without a mandate. Such acts are likewiseconsidered suspended and acquire legal force only upon ratification by the principal; failing ratification, they remain ineffective.