# الإنشاء من الطرفين المذكورين وهما بالحالة المعتبرة شرعًا



## elroy

Hello!

This is from a divorce document.  I'm confused by this part:

وحيث صدر هذا الإقرار والإنشاء من الطرفين المذكورين وهما بالحالة المعتبرة شرعًا

Before this, the document describes what the two parties said to each other.  The wife asked for an irrevocable divorce and agreed to waive her marital rights, and then the husband's representative granted her the divorce.

My questions:

What does إنشاء mean in this context?
What is the function of the و in وهما?
What is الحالة المعتبرة شرعًا?

Is it saying "after this statement was delivered and the aforementioned parties' legal relationship (as husband and wife) was verified"?

Thanks!


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## abdulwahid

I think that إنشاء here means initiating

بالحالة المعتبرة شرعا is most likely that they are considered mentally sane adults according to sharia


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## elroy

abdulwahid said:


> I think that إنشاء here means initiating


 Can you elaborate on this?  "Initiating" in what sense?


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## be.010

Hi!

Legally, and in Islamic Law terminology, الإنشاء is a new  legally-binding acknowledgement/statement that is considered a decision or action by itself... Compared to الإقرار, which is acknowledging that something has happened and you are just saying that it has. As far as I know, إقرار is acknowledgment, but I'm not sure how to render the second one in English (maybe it's declaration?)

E.g., In English: Q: "Did you marry John?", then A: "I did" is an acknowledgement إقرار..
Q: "Do you take take John as your lawfully wedded husband... etc.?", then A: "I do" is إنشاء... (declaration?)

Another example: هل تشتري هذه البضاعة بهذا المبلغ؟
Answer: اشتريت is إنشاء.
Where as: هل اشتريت البضاعة التي يدعي المدعي أنك اشتريتها?
نعم لقد اشتريتها، هذا صحيح... etc. is إقرار...

Hope that helps!
Cheers


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## djara

If the context is Tunisian then maybe you could consider the following:
الطلاق الإنشائي هو ذلك الطلاق الذي يطلبه أحد الزوجين بإرادة منفردة ودون أسباب تذكر
(وزارة شؤون المرأة والأسرة  : الأسئلة المتواترة)
We also say طلاق إنشاء


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## be.010

djara said:


> If the context is Tunisian then maybe you could consider the following:
> الطلاق الإنشائي هو ذلك الطلاق الذي يطلبه أحد الزوجين بإرادة منفردة ودون أسباب تذكر
> (وزارة شؤون المرأة والأسرة  : الأسئلة المتواترة)
> We also say طلاق إنشاء


Interesting! I think there is a connection between the two senses, since الإنشاء in divorce is when the husband (normally) says to/about his wife أنت طالق or طلقت امرأتي or أنت حرام علي منذ اليوم, and they are legally divorced by this statement.


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## elroy

Thanks so much!  I don't know if there's a legal term that would work here, but in linguistics we would call this a "performative utterance" (which I don't think would fit here).  I think in English I can just use "statements" for both the إقرار and the إنشاء.  But this is a very useful definition of إنشاء to know!

The document is Jordanian, by the way.

What about بالحالة المعتبرة شرعًا?  Does that refer to their mental sanity or their legal relationship?


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## be.010

elroy said:


> Thanks so much!  I don't know if there's a legal term that would work here, but in linguistics we would call this a "performative utterance" (which I don't think would fit here).  I think in English I can just use "statements" for both the إقرار and the إنشاء.  But this is a very useful definition of إنشاء to know!
> 
> The document is Jordanian, by the way.
> 
> What about بالحالة المعتبرة شرعًا?  Does that refer to their mental sanity or their legal relationship?


Mental sanity is part of it. Also, for example, that the statement/decision/contract was not made out of rage, under threat, or under the effect of alcohol... etc.


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## cherine

If I understand correctly, الحالة المُعْتَبَرة شَرْعًا is الحالة المقبولة أو المُعْتَدّ بها قانونًا. So, maybe: in a legally accepted form/status? or: while in a legally accepted status/conditions?


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## abdulwahid

إنشاء is the opposite of خبر and is explained here:

دراسات أصولية في السنة

If I'm not mistaken خبر is Realis mood and إنشاء  is Irrealis mood (at least it seems to overlap)?


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## elroy

be.010 said:


> Mental sanity is part of it. Also, for example, that the statement/decision/contract was not made out of rage, under threat, or under the effect of alcohol... etc.


  Thanks!  That makes sense.  What is the شرعًا part about?  Is it saying that being in such a state is a requirement of Islamic law?  Could we say something like "as required by Islamic law"?


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## be.010

elroy said:


> Thanks!  That makes sense.  What is the شرعًا part about?  Is it saying that being in such a state is a requirement of Islamic law?  Could we say something like "as required by Islamic law"?


Great! As to شرعا, it means what you said, but in many regulations, including Jordan's civil affairs', it's practically the same as 'legally'.


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## elroy

be.010 said:


> it's practically the same as 'legally'.


 So are you saying "as required by law" would be fine?


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## be.010

elroy said:


> So are you saying "as required by law" would be fine?


Yes. I just found the term "legally competent". Isn't it similar?


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## elroy

Great suggestion!  I just looked it up and it does seem to be similar, but it doesn't seem to include the consensual aspect, so I'm thinking of translating it as

_ consensually and in a state of legal competence_

What do you think?


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## be.010

I didn't get the consensual part in Arabic Does it say e.g. بالتراضي elsewhere?

Edit:
The last part وهما بالحالة المعتبرة شرعا sounds to me like "while they are in a state of legal competence", how does that sound?


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## elroy

be.010 said:


> I didn't get the consensual part in Arabic Does it say e.g. بالتراضي elsewhere?


 I added that because you included "not under threat" in your explanation of the Arabic expression (#8).  "Legal competence" doesn't include that aspect.  Also, earlier in the document it says that they were غير مدهوشين ولا مكرهين.  I think غير مدهوشين = "legally competent" and غير مكرهين = "not coerced."  What do you think? 





be.010 said:


> The last part sounds to me like "while they are in a state of legal competence" does this sound good?


 Normally I would say they were "legally competent" but I used this structure because I needed an adverb.  I think it works grammatically.


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## be.010

elroy said:


> I added that because you included "not under threat" in your explanation of the Arabic expression (#8).  "Legal competence" doesn't include that aspect.  Also, earlier in the document it says that they were غير مدهوشين ولا مكرهين.  I think غير مدهوشين = "legally competent" and غير مكرهين = "not coerced."  What do you think?  Normally I would say they were "legally competent" but I used this structure because I needed an adverb.  I think it works grammatically.


Hmm.. Yes الحالة المعتبرة شرعًا includes also being not coerced, but I think there's a difference between consensual and not being under threat, since consensus is about both parties' approval, right? I'm not sure how to express that in English, though!

As to the second part, I was suggesting and building on your translation, I updated the post above


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## elroy

Oh!  I thought "consensual" was derived from "consent"!  I just did some research and you're right; it's derived from "consensus"!

Not sure what to use instead... maybe "voluntarily" or "volitionally."

"While they were in a state of" is fine but in my translation "in a state of" works:

_and following this statement and this pronouncement of divorce, which were delivered by the aforementioned two parties voluntarily and in a state of legal competence, as required by Islamic law,_

شو رأيك أستاذ؟


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## be.010

elroy said:


> Oh!  I thought "consensual" was derived from "consent"!  I just did some research and you're right; it's derived from "consensus"!
> 
> Not sure what to use instead... maybe "voluntarily" or "volitionally."
> 
> "While they were in a state of" is fine but in my translation "in a state of" is sufficient:
> 
> _and following this statement and this pronouncement of divorce, which were delivered by the aforementioned two parties voluntarily and in a state of legal competence, as required by Islamic law,_
> 
> شو رأيك أستاذ؟


تمام It's great! As far as I know of course, I always feel legal lingo is awkward to deal with


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## analeeh

Consensual can be from consent or consensus. 'Consensual sex' is the most obvious legal example, where I would rephrase it as 'with the consent of both parties'.


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