Issue 5, Explanation of the Issue, The Statement of the Sayyid

Session Eleven

Issue 5 – Explanation of the Issue – The Statement of the Sayyid – Differences Between the Wording of al-ʿUrwah and Taḥrīr – Two Possible Meanings of “Option” (Khiyār) – First Possibility – Second Possibility – The Meaning of “Option” in This Issue – Two Positions in the Issue

October 6, 2025

Issue Five

Issue 5: “If the contract is concluded by the father or the paternal grandfather on behalf of a minor boy or minor girl, with the observance of what must be observed, neither of them has an option [of rescission] after reaching maturity; rather, it is binding upon them.”

Explanation of the Issue

Issue five concerns the bindingness, or lack thereof, of a contract concluded by the paternal grandfather or father on behalf of a minor boy or minor girl. After the previous issues examined the basic establishment of the guardianship of the paternal grandfather and father over the daughter and son, and after the conditions for the effectiveness and validity of the paternal grandfather’s or father’s marrying-off of a minor boy or minor girl were stated, the discussion now turns to whether a contract concluded by a legitimate guardian, with the requisite conditions satisfied, is binding—meaning that the minor boy and minor girl have no option of rescission after reaching maturity and this contract is definitive and final—or whether they have an option of rescission and may dissolve a contract that was concluded on their behalf by the paternal grandfather or father during their minority. The Imam (may God’s mercy be upon him), in the fifth issue, states: if the contract is concluded by the father or paternal grandfather on behalf of a minor boy or minor girl, with the observance of what must be observed, the minor boy and minor girl have no option; after reaching maturity, they have no right to rescind this contract. Rather, this contract is binding upon the minor boy and minor girl.

The Statement of the Sayyid

The late Sayyid, in the fourth issue of al-ʿUrwah, has likewise stated this same matter: “The minor girl has no option if the father or paternal grandfather marries her off, after she reaches maturity and competence (rushd); rather, it is binding upon her.” If the father or paternal grandfather marries off the minor girl, after she reaches maturity and competence, she has no option; rather, that contract is binding upon her. “And likewise the minor boy, according to the stronger view.” Likewise, the minor boy too has no option, according to the stronger view. “And the position holding that he has the option of rescission or ratification is weak.” In opposition to the position of bindingness of the contract, there is a position holding that the minor boy has the discretion to either rescind or ratify this contract; the late Sayyid, however, states that this position is weak. “And likewise, the insane person has no option after recovering from his insanity.” The insane person too, after emerging from the state of insanity, has no option of rescission or ratification.

Differences Between the Wording of Taḥrīr and al-ʿUrwah

The difference between the wording of al-ʿUrwah and that of Taḥrīr lies in several respects:

1. One difference is that the late Sayyid has differentiated between the minor boy and the minor girl; with respect to the minor boy he has stated “according to the stronger view,” but he has not stated this with respect to the minor girl. That is, as it were, the matter of the absence of the option with respect to the minor girl is not disputed; but with respect to the minor boy, there is, as it were, dispute, even though the position holding to the option is weak.
2. The late Sayyid, alongside maturity, has also mentioned competence (rushd); he has stated “after she reaches maturity and competence,” whereas in the text of Taḥrīr only this appears: “neither of them has an option after reaching maturity,” with no reference to competence at all.
3. The late Sayyid, in al-ʿUrwah, has also addressed the ruling regarding the insane person, but in the fifth issue of Taḥrīr there is no reference to the ruling regarding the insane person. From the standpoint of the ruling itself, the view of the Imam (may God’s mercy be upon him) and that of the late Sayyid are identical; both negate the option for the minor boy and minor girl after reaching maturity. They have stated that if the father or paternal grandfather marries off the minor boy or minor girl to another, provided that the requisite conditions are satisfied, neither of them has an option.
4. Another point present in the text of Taḥrīr and absent from the text of al-ʿUrwah is the phrase “with the observance of what must be observed.” Perhaps this is not mentioned by the late Sayyid because it is self-evident; it means: if the father or paternal grandfather marries off the minor boy or minor girl with the requisite conditions satisfied… This phrase, “with the observance of what must be observed,” is not present in the text of al-ʿUrwah; its basis is clear and it is taken as a settled matter.

Two Possible Meanings of “Option”

Before we enter into the discussion, we must note an important point to which there is a faint indication in the statement of the late Sayyid. That point is: what is the meaning of this “option” (khiyār) that is raised with respect to the minor boy and minor girl? Two possibilities exist here, and the late Sayyid, in the text of al-ʿUrwah, has alluded to one possibility: “And the position holding that he has the option of rescission or ratification is weak.” The option for the minor boy and minor girl can be conceived in two ways:

First Possibility

At times, “option” means the right of rescission (faskh) or ratification (imḑāʾ). When we speak of rescission, we mean the rescission of a contract that is actually valid (ṣiḥḥah fiʿliyyah)—that is, a contract that has been definitively, actually, and validly concluded; it is not held in abeyance or contingent upon anything. This is like the option that arises in a sale on account of a defect (khiyār al-ʿayb): someone concludes a sale contract and purchases something, but the price or the item sold is defective; this contract is valid and actual and is not contingent upon anything; however, because the price or the item sold is defective, the other party has the right to ratify this transaction—that is, to forgo his option and accept this contract—and likewise has the right to rescind it. In any case, this is one possibility: that the marrying-off which the guardian has concluded on behalf of the minor girl or minor boy is a complete, valid, actual contract, and the minor girl, after reaching maturity, has the discretion to dissolve that contract which was validly and actually concluded, saying: my father did this, but I do not accept it.

Second Possibility

The second possible meaning of “option” is the option of rejection (radd) and permission (ijāzah). What is meant by the option of rejection and permission is the very same discretion that the principal party (aṣīl) has in an unauthorized transaction (fuḑūlī); suppose, for example, that a usurper sells another’s property; here, because he has sold property belonging to another, this transaction is unauthorized and is contingent upon the owner’s permission; it is not, at present, an actually complete and valid contract, but rather is held in abeyance—as it were, nothing has yet occurred—until the principal party clarifies the status of this transaction and contract. If he says, “I grant permission for this sale,” then, either from the time of the contract or from the time of permission, it becomes actual and complete; and if he rejects it, then, necessarily, it is as though no contract had occurred at all. Here too, it is possible that what is meant by “option” is the option of rejection and permission—that is, the contract which the father or paternal grandfather has concluded is held in abeyance and contingent until the time of maturity. If the minor girl grants permission, then this contract becomes actual; if she rejects it, this contract is voided. Thus, we have two types of option: the option of rescission and ratification, and the option of rejection and permission. Predominantly, in the terminology of later jurists, “option” is used in the first sense; when they say that someone has an option, they mean that he has the right of rescission or ratification. This usage of the term “option,” with respect to the holder of the option, is common and customary in this sense. But the one who, with respect to an unauthorized contract, has the right of rejection or permission, in fact also “has the option”—that is, he has the discretion to render this contract definitive or to reject it; he can grant permission or reject it. The use of the term “option” in the statements of earlier jurists and in the traditions occurs in both senses—that is, in the broader sense. At times they have said “he has the option,” meaning the option of rescission, in a case where the contract is not unauthorized; at times they have also said “he has the option” in a case where the contract is unauthorized. As you know, an unauthorized contract differs from a contract concerning a defective price: there, the owner himself concluded the transaction, but his price was defective; whereas in an unauthorized contract, someone other than the owner has undertaken the action, and the owner did not do so. Thus, each of these involves a different kind of discretion; the discretion that arises in a transaction involving a defective item differs from the discretion that arises on behalf of another. One is called the option of rescission and ratification, and the other is called the option of rejection and permission. The terminology of “option” in the usage of later jurists tends predominantly toward the first meaning; but in the usage of earlier jurists and in the traditions, it is broader and is used in both senses. Now the question is: here, where we speak of the establishment of an option for the minor boy or minor girl and say that, after reaching maturity, he or she has an option, is the first meaning intended, or the second, or the broader sense? Here, where we ask whether the minor boy or minor girl has an option after reaching maturity or not, this pertains to the first meaning—that is, the option of rescission and ratification, or the option in [the matter of] rescission and ratification. This is because, on the authority of the evidences, the basic guardianship of the father and paternal grandfather has been established—that is, he has the right to marry off his daughter or son to another, of course with the observance of benefit. If the paternal grandfather or father has married off the minor boy or minor girl to another and has also observed benefit, this contract is valid and effective; it is no longer held in abeyance pending the permission of the daughter or son—that is, this contract is not unauthorized. When does this contract become unauthorized? As we stated in the fourth issue, this contract becomes unauthorized when, for example, the condition of the absence of corruption or the condition of benefit has not been observed; at that point it becomes unauthorized. In the fourth issue, the Imam stated precisely this: that if the father or paternal grandfather does this [observes the conditions], this contract is valid and effective; otherwise it becomes an unauthorized contract, like that of a stranger. Therefore, take note that these are, in essence, two separate matters; when we ask whether the minor boy and minor girl have an option after reaching maturity or not, this does not mean that the contract which the guardian concluded on their behalf is an unauthorized contract; because the guardian had the right [to do so] and this action was legitimate for him, and therefore he concluded this contract. Rather, the discussion here concerns whether this actually valid and complete contract continues indefinitely, or whether, if they reach maturity, they have the right to dissolve it. Here, the late Sayyid’s statement, “And the position holding that he has the option of rescission or ratification is weak,” does not mean that, if this option were established, the contract previously concluded would have been an unauthorized contract; there is a difference between an actual, valid contract that carries an option, and an unauthorized contract that carries an option—because the option in the latter means the discretion of rejection and permission, whereas in the former it means rescission and ratification. Take care to note that these differ from one another. We have particularly noted this point lest it be confused with the fourth issue, where it likewise stated, “otherwise it becomes unauthorized.” These are two separate domains and two separate matters. Particular attention to this point is necessary in general when examining the evidences. For example, when we examine the traditions, we see, in these traditions, when the matter of “option” is raised, what is meant by it. If the contract is unauthorized, the basic validity of the contract is contingent upon the view of the one holding the option. But if it is not unauthorized, the basic validity of the contract is not contingent upon the view of the one holding the option; rather, its continuation is contingent upon the view of the one holding the option. The option in the first sense is determinative with respect to continuation, whereas the option in the second sense is determinative with respect to the basic existence of the contract. Now, in keeping with the traditions, in which both meanings have been intended by the term “option,” in the statements of the jurists too, at times, “option” exists in a sense broader than the meaning of the option of rescission and ratification. It has thus become established from all that we have stated that the discussion here is whether the minor boy and minor girl, after reaching maturity, have the discretion to preserve and maintain that actually valid contract which has been concluded, or to terminate it. If he or she rescinds it, this means that it no longer continues; but up until now it has existed.

Two Positions in the Issue

Now that this meaning has become clear, in this issue discussion has taken place both with respect to the minor girl and with respect to the minor boy; thus there are two subjects here. Therefore we must pursue the discussion in two positions: one concerning the minor girl, and the other concerning the minor boy. The first position concerns the establishment of the option of rescission for a minor girl who has been given in marriage to another by the paternal grandfather or father, where this marriage carried benefit for her as well; “with the observance of what must be observed”—these matters are taken as settled; the marriage was concluded by one who had the right to do so, and the conditions were observed, and benefit was present as well. Does this girl, after reaching maturity, have the right to dissolve this marriage or not? The second position concerns the minor boy; does the minor boy have such a right or not? Here too, the supposition is that everything that is authoritative for the validity of the guardian’s marrying-off is present. With respect to the minor girl, it has been claimed that there is no disagreement regarding the absence of an option for her; there is no disagreement whatsoever that the minor girl has no such option and has no right to dissolve this contract. Several arguments have been advanced for this matter; in opposition, however, certain evidences also indicate the establishment of the option. The primary evidences here are traditions. From a certain set of traditions, it is concluded that the option is established for the minor girl; another set of traditions states that the option is not established for the minor girl. Despite the indication of certain traditions toward the option, it has been claimed that this matter is a matter of consensus, namely that the minor girl has no option of rescission. We must examine these evidences and determine whether the girl, after reaching maturity, has such a discretion or not.