Is annulment (Khayar) established if a defect arises in a spouse after the marriage contract?
Chapter on Marriage of Polytheists
Al-Mughni
Book of Marriage
Primary text
The primary opinion asserts that annulment (Khayar) is established if a defect arises in one of the spouses after the contract. This view is supported by the apparent meaning of the statement of Al-Khirqi. The reasoning is that a defect in marriage establishes the option to annul upon its occurrence, and therefore, it is established even if it arises subsequently, similar to insolvency or the state of being a slave, where the option is established both contemporaneously and subsequently. Furthermore, since marriage is a contract for benefit (manfa'ah), the arising of a defect therein establishes the option, akin to a lease agreement (Ijarah).
Supporting text
A second view posits that the option of annulment is not established. This is the position of Abu Bakr and Ibn Hamid, and is the established doctrine (madhhab) of Malik. The rationale is that this defect arose in the subject matter of the contract after its binding nature took effect, resembling a defect arising in a sold item. However, this analogy is contradicted by the case of defects arising in a lease agreement.