Is the nullification of Hajj by intentional or unintentional sexual intercourse the same?
Chapter on What the Muhrim Must Avoid and What is Permissible for Him
Al-Mughni
Book of Hajj
Primary text
Intentional (Amd) and unintentional (Nisyan) sexual intercourse during Hajj are considered equal in effect. Imam Ahmad explicitly stated this, ruling that coitus voids Hajj because it is an act that cannot be retracted, similar to cutting hair or killing game. This ruling covers intercourse in or outside the vagina provided ejaculation occurs, treating intent and forgetfulness the same. The basis for this is that the act necessitates making up the Hajj (Qada), and thus intent and forgetfulness are equivalent, as seen with missing a required rite (Fawat). Abu Hanifa, Malik, and the old opinion of Al-Shafi'i share this view.
Supporting text
Al-Shafi'i's later opinion holds that unintentional intercourse does not void Hajj, nor incurs penalty, as it is treated like fasting, where the intentional breaker differs from the unintentional one. The counter-argument is that since Hajj requires making up the rite (Qada) due to intercourse, intent and forgetfulness are equal, and the analogy to fasting is rejected because expiation (Kaffarah) in fasting is only due specifically for intercourse, not for other acts that void the fast, distinguishing it from Hajj.