Issue 4, First Position: Examination of the Condition of the Absence of Corruption (Mafsadah)
Session Four
Issue 4 – First Position: Examination of the Condition of the Absence of Corruption (Mafsadah) – Arguments for the Condition – Fourth Argument: The Principle of “No Harm” (Lā Ḍarar) – Examination of the Fourth Argument – Objection – Response – Corroboration: The Presumption of Invalidity (Aṣālat al-Fasād) – Examination of the Possibility That the Marriage Is Invalid Even on the Supposition of Permission – The Basis for the Possibility of Invalidity
September 21, 2025
Fourth Argument: The Principle of “No Harm”
The discussion concerned the arguments for the condition of the absence of corruption in the establishment of the guardianship of the father and paternal grandfather with respect to the daughter’s marriage; several arguments were examined. The first argument was consensus, the second argument was traditions, and the third argument was the restriction of unqualified statements, all of which have been examined. The fourth argument is the argument of the negation of harm (nafy al-ḍarar). According to the well-known position, the principle of “no harm” (lā ḍarar) negates any ruling that entails harm within the Sacred Law, and it governs (ḥākim) over all the evidences. That is, by virtue of the principle of “no harm,” if a ruling in the Sacred Law results in harm to another, that ruling is negated. This principle governs all the evidences for primary rulings (aḥkām awwaliyyah); one of these primary rulings is the establishment of guardianship for the father and the paternal grandfather. By virtue of certain traditions, the father and paternal grandfather have guardianship over the daughter; this is a constitutive ruling (ḥukm waḑʿī)—guardianship is among the constitutive rulings. Now, if the guardianship of the father and paternal grandfather were such that it resulted in corruption and harm to the daughter, by virtue of the principle of “no harm,” it is negated. In other words, the guardianship of the father and paternal grandfather is restricted to a case in which there is no corruption; guardianship is not established in an unqualified manner such that it would encompass even a case involving harm and corruption to the daughter. Therefore, since the unqualified scope of the evidences for the guardianship of the father and paternal grandfather, insofar as it would encompass the supposition of corruption, results in harm to the daughter, the principle of “no harm” eliminates and negates it. Hence, with the assistance of this principle, we can establish the absence of corruption as a condition and say that the guardianship of the father and paternal grandfather is contingent upon the absence of corruption; or, in other words, the marriage of the daughter by the father and paternal grandfather is valid and effective only when there is no corruption and harm for the daughter. When we say there should be no corruption, this means that, in the presence of corruption, that contract is not valid, and this amounts to the absence of guardianship of the two over her. This argument has been mentioned by the author of Jawāhir; the late Āyatullāh Ḥakīm has likewise invoked this argument in Mustamsak.
Examination of the Fourth Argument
Objection
An objection has been raised regarding this argument as well, namely that the principle of “no harm,” in cases where there is harm in a contract or transaction, at most removes the bindingness (luzūm) of the contract. For example, suppose someone enters into a transaction involving deception (ghabn); by virtue of “no harm,” the bindingness of this transaction is removed, and the person has the option of rescission (khiyār al-faskh) and may dissolve the transaction, but the contract itself is not problematic in essence. “No harm” is operative only to the extent necessary to prevent harm, and here its effect extends to removing the bindingness of the contract, but it has no bearing on the contract itself. To say that “no harm” invalidates the contract is problematic. Yet you, relying on “no harm,” are invalidating the contract of the father and paternal grandfather in the supposition of corruption; when you say that this contract is not effective in the case of corruption, this means that this contract is not valid [in its essence].
Response
The response to this objection is that, with respect to financial transactions and contracts, “no harm” negates bindingness. This is because, in financial contracts, the contract itself is not problematic and there is no harm in it; rather, its bindingness—that is, the parties being obligated to fulfill it and not having the option to dissolve the transaction—is what constitutes the harm. Where there is deception, where there is harm, where the sold item or the price is defective, if a ruling of bindingness were issued, it would entail harm. Hence “no harm” removes the bindingness; but in a case such as marriage, the contract itself, when it involves corruption, is harmful in essence. A daughter whose father has married her to an unemployed addict—here the harm and the problem lie in the contract itself; therefore “no harm” is directed at the contract itself and prevents its effectiveness and validity, negating the validity in essence. Objection raised: If “no harm,” in a marriage contract that involves corruption, prevents the validity and effectiveness of this contract, the necessary consequence is that it would not become valid even with subsequent permission (ijāzah). In other words, on this very issue, both the Imam and the late Sayyid [al-Ṭabāṭabāʾī] have stated that if the contract involves corruption, it becomes an unauthorized transaction (fuḑūlī). The statement of the late Sayyid is: “Otherwise, the contract is unauthorized, like that of a stranger.” The Imam has likewise stated that this contract becomes valid through subsequent permission. The question is: if the contract is not effective because of the corruption, this means its dissolution [from the outset]; how, then, can subsequent permission rectify it? If the contract is not concluded, how can it then become valid through subsequent permission?
Response given: If the contract involves harm and corruption, it does not possess actual validity (ṣiḥḥah fiʿliyyah); that is, it cannot result in the establishment of marital relations, it is not effective, and the effects of marriage are not applied to it. However, it possesses contingent validity (ṣiḥḥah shaʾniyyah); in all instances of an unauthorized transaction, contingent validity exists—meaning that, as it were, all the elements and pillars of the contract have been realized, and only one element remains unrealized, namely the consent, permission, and authorization of one of the parties to the transaction. When that party grants permission, this validity becomes actual; it possesses the capacity for validity, but its validity is not actual. If the marriage contract involves corruption, it is not effective and valid, because the absence of corruption is a condition in the guardianship of the father. However, this same contract, which is not effective and whose validity has not become actual, has the capacity that, with the daughter’s permission, its validity becomes actual. What is meant by saying that an unauthorized contract is held in abeyance pending the permission of the principal party (aṣīl)? It means a contract in which all the conditions and elements of the contract are realized except for authorization, permission, and consent. Indeed, as long as she has not granted permission, this contract has not been concluded; but its form and conditions—everything about it—is complete; a mold, as it were, has been formed which, if permission is granted, then attains actuality.
Question:
Professor: Every unauthorized contract is of this nature. … The supposition here is that, in this case, there is no guardianship; we say: if a guardian marries off his daughter to someone in a manner that results in corruption for that daughter, did he have the guardianship to do this or not? We say that in this instance he did not have guardianship; when we say this is conditional upon the absence of corruption, it means that he did not have the right to do this. In the previous session, I likewise stated that some hold that this contract is valid and complete, because they say that the guardian holds the same standing as the ward (al-walī nāzil manzilat al-mawlā ʿalayh); just as if she herself had undertaken this action, the contract would be complete, so too the guardian, having been assigned this standing in place of the ward, if he contracts a marriage—even one involving corruption—it is valid and complete. Some have stated this; however, we have rejected this. We said that it is the majority position, indeed a matter of unanimous agreement, that it is not the case that the guardian may do whatever he wishes—for example, marrying off the daughter to someone whose marriage not only lacks benefit but entails corruption; we say that the limit of this guardianship extends only this far, and beyond that, he has no guardianship. Therefore, by means of “no harm” as well, we can establish the authority of the absence of corruption and its being a condition for the validity and effectiveness of the contract—or, in other words, for the establishment of guardianship in the marriage of the daughter.
Corroboration: The Presumption of Invalidity
These four arguments can be corroborated by one further support; though, given the existence of these arguments, we have no need of a presumption (aṣl), the presumption of invalidity (aṣālat al-fasād) in the matter of transactions likewise corroborates the condition. If we were to suppose that none of the four arguments could establish the conditionality of the absence of corruption in guardianship, we would be in doubt as to whether a contract that the paternal grandfather and father have undertaken for the daughter, and which involves corruption, is valid and effective or not. The presumption of invalidity requires that this contract be invalid; hence it is conditional upon the absence of corruption.
Examination of the Possibility That the Marriage Is Invalid Even on the Supposition of Permission
This concludes the discussion of the first position. Before proceeding to the second position, there is an additional remark in the statement of the late [Sayyid]; he has stated: “Or, otherwise, the contract is unauthorized, like that of a stranger, and it is possible that it is not valid even with permission.” This statement does not appear in Taḥrīr but does appear in al-ʿUrwah. What he means is that this contract does not become valid even with the daughter’s subsequent permission; that is, it does not even possess contingent validity. Thus far, it has been established that the absence of corruption is certainly a condition for actual validity; that is, so long as corruption exists, this contract does not have actual validity, and for it to attain actual validity, the daughter, after reaching maturity, must grant permission for this contract—that is, it becomes an unauthorized contract. If she does not grant permission, this contract is not valid; but if she grants permission, this contract is valid. The late Sayyid has raised a possibility, namely that this contract does not become valid even with subsequent permission. Several of the annotators have raised objections to him; the Imam (may God’s mercy be upon him) and the late Āyatullāh Khūʾī have annotations here. The Imam’s statement was: “However, it is weak”—this possibility is weak. The late Muḥaqqiq Nāʾīnī, Muḥaqqiq ʿIrāqī, and the late Āyatullāh Khūʾī have all raised objections to the Sayyid, stating that this possibility—that the contract would not be valid even after permission—is a weak and improbable possibility. The question is: first, why has the late Sayyid mentioned this possibility, and what is the basis for it? In other words, what is the basis for the Sayyid’s statement; and second, what is the basis for the objectors’ position against the late Sayyid? Why have some said that this possibility is weak?
The Basis for the Possibility of Invalidity
The basis for the possibility of invalidity is this: regarding the unauthorized contract, a discussion has been raised as to whether the existence of one capable of granting permission (mujīz) at the time of the contract, and that person’s eligibility (ahliyyah) to grant permission and ratification at the moment the contract is issued, is necessary or not. For example, when someone sells another person’s property (a usurper sells another’s house), and at the time of the contract the owner had the eligibility to grant permission—only he either was unaware of it or was not informed, and no permission was given; there was no authorization or consent—but at that juncture he possessed the eligibility for this matter. Here, this contract has the capacity to admit subsequent permission; the validity of the unauthorized contract is conditional upon the other party having had, at the time of the contract, the eligibility to grant permission. But if there is no eligibility for permission—as in our present case, where the daughter was not of age at the time of the contract so as to be able to grant permission—the contract does not become valid even with subsequent permission. At one time, the daughter is of age and her father marries her off to someone; at that very time and at the moment of the contract, the daughter possessed the competence and eligibility for permission. But when she is not of age, she cannot grant permission for this contract. Therefore, in this case, the contract is void. Thus, the basis for the possibility of invalidity, in the case where the contract of the paternal grandfather or guardian involves corruption, is that the daughter, at the time of the contract, did not have the eligibility for permission; hence the late Sayyid has raised the possibility that this contract is void and that subsequent permission cannot assist this contract either. Thus it has become clear why the late Sayyid raised this possibility. The late Āyatullāh Khūʾī has raised an objection to this possibility and its basis, and on this basis has stated: “However, it is improbable”—this possibility is improbable. He states that the validity of an unauthorized contract following the attachment of permission is regarded, at times, as a matter in accordance with the general rule (qāʿidah), and at other times, as the import of specific traditions; that is, at one point we say that the general rule requires that the unauthorized contract be valid following the attachment of permission; at another point we say that, according to the general rule, the unauthorized contract is not rectified by the attachment of permission, but because we have specific traditions indicating its validity, it is ruled valid. Therefore, the rectification of the unauthorized contract by subsequent permission can have two possible bases: either we say this is in accordance with the general rule, and the general rule requires that it become valid by subsequent permission, because everything about this contract is complete and it has only one deficiency, namely the owner’s consent—when consent is obtained, the contract is valid and complete; or we say that, according to the general rule, the unauthorized contract is not valid even with subsequent permission, but because traditions have been transmitted indicating the validity of the unauthorized contract upon the owner’s permission, we accept this on the basis of submission to the textual evidence (taʿabbud). Thus, this is, at one time, in accordance with the general rule, and at another time, derived from the traditions and accepted on the basis of submission to the textual evidence. The late Āyatullāh Khūʾī states that what the late Sayyid has stated is correct only in one case, namely if we regard the validity of the unauthorized contract, on the supposition of the attachment of permission, as a matter of submission to the textual evidence, not in accordance with the general rule. That is, if we say that the validity is not in accordance with the general rule, but rather, because of the traditions, we have become committed to the validity of the unauthorized contract following the attachment of permission—then we must restrict ourselves to the extent stated in the traditions; generally, if a tradition runs contrary to the general rule, we must confine ourselves to the certain minimum (qadr al-mutayaqqan) and cannot extend beyond that. Here, the general rule requires that the unauthorized contract not be valid. But traditions have been transmitted indicating its validity. Yet to what extent can we depart from the general rule? Is this unqualified, or must we confine ourselves to a certain scope? He states that the certain minimum derived from the traditions is the validity of the unauthorized contract, on the supposition of the attachment of permission, in a case where one capable of granting permission exists and possesses the eligibility for permission. But where there is no one capable of granting permission and no eligibility for permission exists, we cannot rule the unauthorized contract valid. Therefore, the reason the late Sayyid raised the possibility of invalidity even on the supposition of the attachment of permission is this basis, which entails such a requirement. That basis is that the one who is to grant permission to the contract afterward must, at the time of the contract, have been one whose disposition is legally operative (jāʾiz al-taṣarruf) and must have possessed the eligibility for permission; otherwise, his permission is not valid. And here, since the daughter does not have a legally operative disposition and does not possess the eligibility for permission, she cannot grant permission afterward either. Is this position correct or not? Why is this possibility weak? We shall explain this, God willing. Therefore, we have two matters here: first, what is the argument for this possibility stated by the Sayyid; second, what is the argument for its weakness? We have stated the argument for this possibility; but why is it weak and improbable? We shall explain this, God willing, in the next session.