Tacbir (expressing one's will: speech, deed, writing, gesture, silence)

Tacbir is expression. In jurisprudence will is expressed first by speech, then by deed, writing, gesture and silence. ¹

The root is speech, the clearest sign, since consent is hidden in the heart; so the formula, or offer and acceptance, is a pillar of every contract, whether an exchange, a gift or a surety. ²

This appears in exchange, where the buyer pays the price and takes the goods without spoken offer and acceptance. The majority (Hanafis, Malikis, Hanbalis and some Shafiis) allow it, since the deed shows consent by custom; most Shafiis do not, and some restrict it to trifles. The Malikis make the handing over binding; the Hanafis allow revocation, hire, exchange, gift and present by exchange. ^{2 3}

Contracts are valid by writing, by agreement, except marriage for the majority; the Hanafis allow marriage by writing for the absent. A divorce by writing takes effect when the writing is legible, not in writing on air or water. ^{3 4} The Malikis distinguish: one who writes it resolved to divorce takes effect on finishing; one who writes it hesitating or consulting does not, unless he sends it resolved. ⁴

By agreement the intelligible gesture of the dumb stands for speech in contracts out of necessity. For others than the dumb, most jurists do not count gesture in contracts, and the Malikis treat it as speech, citing the verse «your sign is that you speak not to people for three days but by gesture». ⁴

The silence of a grown sane virgin counts as consent to marriage, on the hadith of Aisha «her consent is her silence», and the hadith «a virgin is asked and her silence is her consent». Laughter and weeping are counted with the signs of the situation; the Hanafis and Shafiis do not count weeping with cries, and the Malikis say it is refusal if known. Mockery-laughter does not count. ⁵

The entry on dream interpretation (ta'bir al-ru'ya) is under «ru'ya», and the exceptions in marriage are in the entry on marriage. ⁵