Issue 4, First Position: Examination of the Condition of the Absence of Corruption (Mafsadah)
Session Two
Issue 4 – First Position: Examination of the Condition of the Absence of Corruption (Mafsadah) – Arguments for the Condition – First Argument: Consensus (Ijmāʿ) and Its Examination – Second Argument: Traditions (Riwāyāt) – First Tradition and Its Examination – Second Tradition
September 15, 2025
Summary of the Previous Session
The discussion in the fourth issue revolved around two subjects: the condition of the absence of corruption (mafsadah) and the condition of the presence of benefit (maṣlaḥah) in the marriage contracted by the father or paternal grandfather—that is, whether the guardianship (walāyah) of the father and paternal grandfather in the matter of marriage is contingent upon the absence of corruption for the ward (mawlā ʿalayh) or not. At the next stage, the question is whether this guardianship is contingent upon the existence of benefit for the ward or not. These are the two positions that we are addressing.
First Position: Examination of the Condition of the Absence of Corruption
In the first position, the discussion concerns the following: if a father contracts a marriage for his daughter and this act entails corruption, is this contract valid or not? In other words, is the validity and effectiveness of his contract contingent upon there being no corruption for the daughter? Corruption (mafsadah) means, for example, marrying the daughter to a person who is insane or who has an unusual illness; such a contract entails corruption for this daughter. If he arranges such a contract, is it effective or not? Thus, the discussion concerns the condition of the absence of corruption (ʿadam al-mafsadah) in the validity and effectiveness of the guardian’s contract. Imam (may God’s mercy be upon him) has stated that the absence of corruption is a condition for the validity and effectiveness of the contract. The majority (mashhūr) have likewise issued this ruling; indeed, it is a matter of unanimous agreement.
Arguments for the Condition of the Absence of Corruption
Several arguments have been mentioned in this position, which we shall examine to determine whether they can establish the intended conclusion.
First Argument: Consensus (Ijmāʿ)
The first argument is consensus; some have claimed consensus on this matter. For example, the late Narāqī states that it is apparently obligatory for the guardian to observe the absence of corruption in marriage, due to the apparent consensus. The author of Miftāḥ al-Karāmah has likewise claimed consensus; Shahīd al-Thānī, in Masālik, did not claim consensus but rather claimed agreement (ittifāq). Some have claimed the absence of disagreement (ʿadam al-khilāf). The absence of disagreement, agreement, and consensus differ from one another. The late Āyatullāh Khūʾī has stated that it is a matter of agreement, and indeed no disagreement has been attributed to anyone regarding it. Thus, there are in fact three types of expressions here: some, such as the author of Miftāḥ al-Karāmah and the late Narāqī, have claimed consensus; some, such as Shahīd al-Thānī, have claimed agreement; some have claimed the absence of disagreement. The absence of disagreement is at a higher level relative to agreement. Naturally, agreement and the absence of disagreement cannot be regarded as constituting an argument; at most, they would serve as corroboration (muʾayyid) for the claim. What can serve as an argument is consensus. Here, a claim of consensus has been made; we must examine whether this argument can establish the condition of the absence of corruption or not.
Examination of the First Argument
This consensus is a transmitted consensus (ijmāʿ manqūl) and therefore lacks authority and cannot be relied upon. Furthermore, establishing such a consensus is not even possible, because some jurists have not addressed this issue at all, and therefore they cannot be counted among those who hold the consensus. For example, Shaykh al-Ṭūsī, in his book al-Khilāf, raised this issue: if a guardian marries off a minor (ṣaghīrah) daughter to someone who is insane, or afflicted with leprosy, or afflicted with vitiligo, this contract is permissible from the standpoint of obligation (taklīf); he then, in another issue, ruled on its validity. However, whether this validity is contingent upon permission—that is, whether we might say that it could be valid on the basis of being an unauthorized transaction (fuḍūlī), meaning it has the capacity for validity, or in other words possesses a contingent validity (ṣiḥḥah shaʾniyyah)—or whether this contract is essentially revocable or not, Shaykh al-Ṭūsī has said nothing regarding this aspect. It is possible that his ruling of validity should be construed as contingent validity; if it is construed as contingent validity and made dependent upon the daughter’s permission after reaching maturity, this would be incompatible with the condition of the absence of corruption. The author of Jawāhir has offered an explanation regarding this statement of Shaykh al-Ṭūsī, stating that Shaykh al-Ṭūsī’s ruling of validity for the contract of an immature daughter by the guardian means that the daughter does not have the option to revoke the contract. This is because the guardian holds the same status as the ward herself; just as if the daughter were sane and of age and she herself consented to become the wife of an insane or leprous person, this contract would be valid (because she had the choice and accepted it, and therefore there is no obstacle to the validity of the contract; no option of revocation is established for her). If her guardian likewise contracts such a marriage on behalf of the daughter, this contract is valid, and the daughter does not have the right to revoke this contract. If we accept this explanation by the author of Jawāhir, we must necessarily conclude that Shaykh al-Ṭūsī does not hold the view of the condition of the absence of corruption. At the very least, this undermines the consensus. In summary, the first argument—namely, the matter of consensus—is a transmitted consensus, which, as stated, has no authority. Even if we were to consider this consensus authoritative, such agreement and ruling does not exist among all jurists; one instance of this is precisely the dissent of Shaykh al-Ṭūsī. This is, of course, based on accepting the explanation offered by the author of Jawāhir. In any case, the very failure to address this issue can itself constitute an obstacle to the consensus. Therefore, the first argument, namely the matter of consensus, is not acceptable.
Second Argument: Traditions (Riwāyāt)
The second argument consists of certain traditions transmitted on this issue. The late Āyatullāh Khūʾī has transmitted three traditions and has accepted their indication of the condition. We shall transmit these traditions in order to examine whether they indicate the condition of the absence of corruption in the guardianship of the father and the paternal grandfather or not.
First Tradition
The first tradition is the tradition of Abū Ḥamzah al-Thumālī; the late Shaykh [al-Ṭūsī] has relied upon this tradition for establishing the condition of the absence of corruption in the validity of the guardian’s sale. The tradition concerns a guardian who wishes to make use of the property of his son and to sell some of the son’s property; the Imam (peace be upon him) said that the father may not take more than the amount needed, and he cited the verse, “And God does not love corruption.” [The text of the tradition]: “From Abū Ḥamzah al-Thumālī, from Abū Jaʿfar (peace be upon him), who said: The Messenger of God (peace be upon him) said to a man, ‘You and your property belong to your father.’ Then Abū Jaʿfar (peace be upon him) said: ‘And I do not like for him [the father] to take from the property of his son except what he needs, that which is indispensable; indeed, God, Mighty and Exalted, does not love corruption.'” Approach to the argument: As may be observed, this tradition is stated in the context of sale; however, the causal explanation (taʿlīl) mentioned at the end of the tradition is general in scope and encompasses marriage as well. The statement “Indeed, God does not love corruption” indicates that corruption is nowhere desirable, and in this respect there is no difference between sale and marriage; just as in the case of the sale of property, corruption can be detrimental, the same holds true in the case of marriage—and indeed marriage may be far more significant than property. The late Āyatullāh Khūʾī has made use of the causal explanation in this tradition and has stated that this tradition indicates the condition of the absence of corruption. Hence, if a guardian marries his daughter to someone who is, for instance, afflicted with leprosy, it becomes akin to an unauthorized (fuḍūlī) transaction.
Examination of the First Tradition
The late Āyatullāh Ḥakīm has raised certain objections to the reliance on this tradition, which we shall now examine.
First Objection
The first objection is that this tradition is extraneous to our present discussion, because the tradition concerns a son who has reached maturity; it states that he may take from the property of his mature son only to the extent of his need and has no right to take more than that. However, we are discussing guardianship over minors; therefore, this tradition cannot be relied upon as an argument.
Examination of the First Objection
This objection is answerable, because: First, it is true that the subject of the tradition is a son who is a child (ibn) and has reached maturity; however, the causal explanation is general: “Indeed, God does not love corruption,” and the argument relies on the causal explanation at the end of the tradition; therefore, the specific subject does not restrict it. Second, it is even possible to say that the subject of the tradition is not necessarily a mature son, because the term ibn (son) is also used for one who has not reached maturity. It is true that specific terms are employed for one who is immature, but the designation ibn is used even for an immature person.
Second Objection
The second objection that the late Āyatullāh Ḥakīm raises here is that the apparent sense of the tradition indicates that the subject matter of the tradition is the father’s use of the son’s property for the father’s own benefit; as if the father wishes to take and sell from the son’s property for his own needs. Hence the Imam (peace be upon him) said that he should not take more than the amount needed. However, here our discussion concerns marriage and the marrying-off of a daughter, whose benefit or harm pertains to the daughter herself; thus, again, this is distant from our present discussion. We are discussing the marriage of a daughter, where the benefit, advantage, harm, and corruption pertain to the daughter herself; whereas the tradition concerns the father’s own financial needs—that is, as if some benefit accrues to the father from that sale. Therefore, this tradition cannot be relied upon as an argument.
Examination of the Second Objection
The answer to this objection is the same answer we gave to the first objection. This statement is correct; however, the arguer’s reliance is on the generality of the causal explanation at the end of the tradition; he has relied upon the concluding phrase, namely “And God does not love corruption.” Therefore, what difference does it make whether the matter pertains to the father or to the daughter, to sale or to marriage? What matters is that any action taken by the guardian and father must not entail corruption for the child, whether mature or immature.
Third Objection
The third objection is that the subject of this tradition is sale, whereas our discussion concerns marriage; how can we generalize a ruling stated in the matter of sale to another matter, including the matter of marriage?
Examination of the Third Objection
The answer to this objection is likewise the same answer we gave to the previous two objections, namely that the generality of the causal explanation removes all these restrictions; just as the generality of the causal explanation eliminates the difference between a mature son and otherwise, and just as the generality of the causal explanation eliminates the difference between the father’s action for his own benefit and otherwise, it likewise requires that there be no difference between sale and marriage. Thus, all of these objections can be resolved with a single answer. Therefore, the tradition of Abū Ḥamzah al-Thumālī requires that any action by the father or paternal grandfather, including marrying off the daughter to someone whose marriage entails corruption, is not permissible; that is, the validity and effectiveness of the guardian’s action is contingent upon the absence of corruption. It is evident that any action, including marriage, must not entail corruption for the daughter.
Second Tradition
The second tradition is the authentic tradition (ṣaḥīḥah) of al-Faḍl ibn ʿAbd al-Malik; we have previously transmitted this tradition on various occasions and in numerous instances. [The text of the tradition]: “From Abū ʿAbd Allāh (peace be upon him), who said: Indeed, when the paternal grandfather marries off the daughter of his son, while her father is alive and the paternal grandfather is one whose conduct is approved (marḍiyyan), it is permissible. We said: What if the father of the girl desires one match and the paternal grandfather desires another, and the two are equal in justice and approval? He said: I prefer that you consent to the statement of the paternal grandfather.” According to this tradition, if the daughter’s father is alive and the paternal grandfather marries her off, and the paternal grandfather’s conduct is approved, it is permissible. Then it continues: if both the father and the paternal grandfather of the girl intend to marry the daughter to different persons, and both have taken action, and the two are equal in justice and consent, whose statement takes precedence here? The Imam (peace be upon him) said: I prefer that the daughter consent to the statement of the paternal grandfather. Approach to the argument: The approach to this argument, as stated by the late Āyatullāh Khūʾī, is that the correspondence between the ruling and its subject matter (tanāsub al-ḥukm wa al-mawḍūʿ) requires that what is meant by the paternal grandfather’s conduct being approved is that those matters pertaining to the daughter be approved. His statement is as follows: the apparent sense of this qualification, in light of the correspondence between the ruling and its subject matter, is the requirement that he [the paternal grandfather] be one whose conduct is approved with respect to the actions issued toward the daughter. The apparent sense is that the contract is valid only when the paternal grandfather’s conduct is approved. The approval of the paternal grandfather’s conduct pertains to the daughter—that is, it must be to the daughter’s benefit and not to her detriment. If this is the case, the contract is effective and valid; otherwise, it will not be valid. Otherwise, if his being one whose conduct is approved were to be construed with reference to his other dealings in general, this would be extraneous to his guardianship over the daughter; this is evident. Thus, Āyatullāh Khūʾī regards the indication of this tradition toward the condition of the absence of corruption as conclusive. However, there are objections to relying on this tradition, which we must examine.