Mutaraka (release from a defective contract, and its effects)

المُتَارَكَة

Mutaraka, in lexicon, is leaving and parting; the jurists did not define it clearly, and most used fasKh (annulment) in its place, while the Hanafis use it for some defective contracts in its lexical sense ¹. Its form is a word such as 'I left it', 'I annulled it', 'I cancelled it'; in a defective marriage it may be expressed by the word of divorce without reducing the number of divorces; an act may take the place of the word, such as a buyer returning a defective purchase to the seller by gift or charity, which releases him from liability ². In a defective marriage after consummation the release must be by word; either spouse may end it, the separation is required, and the waiting period is due after intercourse ³. Once it is complete the contract is undone and the parties are restored as far as possible; if restoration is impossible the price is returned, and the child's descent, the dower and the waiting period stand, as rights that cannot be waived ⁴.