his intellect; and if he wishes while a child, it does not take effect because he is like the insane person. If he understands divorce, it takes effect because he possesses the capacity for wishing, and for this reason, his choice for one of his two parents is valid. If he is mute and wishes by sign, the divorce takes effect, because his sign serves in the place of the speech of one who can speak; for this reason, his divorce takes effect by it. If he was capable of speech at the time of the suspension, then became mute, there are two views regarding it: one is that the divorce takes effect by it, because his divorce in itself takes effect by it, so likewise is the divorce of one who suspended it upon a wish. The second is that it does not take effect by it, because at the time of the suspension, it (74) would not take effect except through speech (75), so it does not take effect by other than it, as if he said in the suspension: "If so-and-so speaks regarding his wish, then she is divorced."
Section: If he restricts the wish to a time, saying: "You are divorced if you wish today," it is restricted to it; if the day passes before her wish, she is not divorced. If he suspended it upon the wish (76) of two people, it does not take effect until both of their wishes are found. The Qadi derived a view that it takes effect by the wish of one of them, just as one commits a breach of oath by the action of some of those whom he swore against, but we have explained the corruption of this. If he said: "You are divorced if you wish and your father wishes," and she said: "I have wished if my father wishes," and her father said: "I have wished," she is not divorced, because she did not wish; for a wish is a hidden (77) matter, and it is not valid to suspend it upon a condition. Likewise, if he said: "You are divorced if you wish," and she said: "I have wished if you wish," and he said: "I have wished," or she said (78): "I have wished if the sun rises," it does not take effect. Ahmad affirmed (79) the meaning of this (80), and it is the position of all the scholars, including al-Shafi'i, Ishaq, Abu Thawr, and the Ashab al-Ra'y. Ibn (81) said...
(74) In B and M: "ka-annahu" (as if it were). (75) In A: "bi-al-taʿlīq" (by suspension). (76) In M: "al-mashīʾa" (the will). (77) In the original and B: "ḥaqīqī" (real). (78) In B: "qāla" (he said). (79) In B and M, an addition: "ʿalayhi" (upon it). (80) In B: "wa-hādhā" (and this). In M: "huwa" (it is). (81) Omitted from A, B, and M.
