Issue 5, First Position: Examination of the Establishment of the Option for a Minor Girl
Session Fourteen
Issue 5 – First Position: Examination of the Establishment of the Option for a Minor Girl – Arguments for the Non-Establishment of the Option – Second Argument: Traditions – Third Category of Traditions – Second, Third, and Fourth Traditions
October 13, 2025
Summary of the Previous Session
The discussion concerns the arguments for the non-establishment of the option, or in other words the bindingness of the marriage contract that the paternal grandfather or father has concluded on behalf of the minor girl; up to this point, consensus and two categories of traditions have been examined. The third category of traditions consists of specific traditions; there are several traditions in this category. We transmitted the first tradition in the previous session. As we stated, the tradition of Ismāʿīl ibn Buzayʿ indicates the bindingness of this marriage.
Second Tradition
The second tradition is the tradition of ʿAlī ibn Yaqṭīn: “From ʿAlī ibn Yaqṭīn, who said: I asked Abū al-Ḥasan (peace be upon him): Is the girl married off while she is three years old, or is the boy married off while he is three years old, and what is the lowest limit of that age at which they may be married off? Then, if the girl reaches maturity and is not satisfied, what is her status? He (peace be upon him) said: There is no harm in that if her father or guardian was satisfied.” According to this tradition, ʿAlī ibn Yaqṭīn states: I asked the Imam (peace be upon him) whether a girl, while three years old, or a boy, while three years old, can be married off to another. In general, what is the lowest age limit at which the marrying-off of a child is valid? He then continues, saying: if the girl reaches the age of maturity and is not satisfied with this marriage, what then is her status with respect to this marriage? The Imam (peace be upon him) said: if her father or guardian was satisfied, there is no problem in it. ʿAlī ibn Yaqṭīn has, in effect, asked the Imam (peace be upon him) two questions in this tradition: first, what is the minimum age at which the marrying-off of a girl or boy by the guardian is valid, permissible, and effective? Second, if a girl who has been married off to another at such an age is, after reaching maturity, not satisfied with this marriage, what is the ruling? These are the two questions raised in this tradition. The Imam (peace be upon him) has answered with a single sentence, stating: “There is no harm in that if her father or guardian was satisfied”; this is, in fact, the answer to both questions. On this basis, the answer to the first question is that, provided the guardian’s satisfaction exists, there is, as it were, no age restriction. He asked about the marrying-off of a three-year-old boy and girl, and then, in general, about the lowest age at which marrying-off is permissible; the Imam (peace be upon him) stated, “There is no harm in that if her father or guardian was satisfied.” That is, there is, as it were, no age restriction. Indeed, from this statement it becomes clear that the capacity for consummation (ṣalāḥiyyat al-istimtāʿ) has no bearing whatsoever; the apparent unqualified scope of this statement of the Imam (peace be upon him) is that even below this age there is no obstacle. The second question was: if the girl reaches the age of maturity and is not satisfied, what is the ruling? The Imam (peace be upon him) said, “There is no harm in that if her father or guardian was satisfied”; the apparent sense of this statement is that this marriage is valid and complete, even if the girl, after reaching maturity, is not satisfied with this marriage. This is the answer that has settled the status of both questions of the narrator.
Approach to the Argument
Our supporting evidence is the second question: if the girl is not satisfied, what is the ruling? Is the contract binding—meaning that no need exists for the daughter’s satisfaction and confirmation—or is this contract revocable (jāʾiz)? This [latter possibility] would entail that, if the girl reaches the age of maturity and does not confirm it, this contract is rescinded—that is, the daughter has the right to rescind this contract. But the Imam (peace be upon him), in his answer, has, as it were, regarded only the satisfaction of the father and guardian as the condition for the validity, completeness, and bindingness of the contract. Therefore, the tradition, by this statement, indicates bindingness. Question [posed in the session]: Professor’s response: The qualification “if her father or guardian was satisfied” is not compatible with the possibility that “there is no harm” refers to the daughter’s action. This would be contrary to the apparent sense; it states, “Then, if the girl reaches maturity and is not satisfied, what is her status?” The Imam (peace be upon him), in his answer, states, “There is no harm in that if her father or guardian was satisfied.” He asks: what is the status of this girl? What is the state of her marriage? The Imam (peace be upon him) states: that marrying-off has no problem; it does not mean there is no harm in the daughter’s action, nor that there is no harm in her being able to object. This wording and this sentence carry the apparent sense that this does no damage to the contract and the validity of the marriage. … She was a minor and was unaware as to whether she was satisfied or not. … He emphasizes and states, “There is no harm in that if her father or guardian was satisfied”—that is, the only thing that has bearing on the validity and completeness of this marrying-off is their satisfaction. Therefore, he is in the position of negating any bearing of the daughter’s satisfaction; he says that everything turns on the satisfaction of the father and guardian; the moment they are satisfied, it is complete. The apparent sense of the sentence is that it does not intend to repeat an obvious and clear matter that is taken as a presupposition of the issue; rather, it intends to say that everything that bears upon the validity of the marriage and marrying-off rests upon their satisfaction, and the daughter’s satisfaction has no bearing whatsoever.
Third Tradition
The third tradition of the third category is from ʿAbd Allāh ibn al-Ṣalt: “From ʿAbd Allāh ibn al-Ṣalt, who said: I asked Abū al-Ḥasan (peace be upon him) about the minor girl whom her father marries off—does she have any say when she reaches maturity? He (peace be upon him) said: No.” He states: I asked about a minor girl whom her father has married off to another; does she have discretion, when she reaches maturity, to express her view on this matter? The Imam (peace be upon him) said: No. The indication of this tradition toward the bindingness of this contract is clearer and more evident than that of the two previous traditions. It continues: “And I asked him about the virgin (bikr), when she reaches the status of [mature] women—does she have any say alongside her father? He (peace be upon him) said: No, she has no say alongside her father so long as she has not been previously married (tuthayyab).” He states: I asked about a virgin girl who has reached the status of women and has reached maturity; does the virgin, when she reaches the age of maturity, have any right or discretion regarding this marriage in the presence of her father? The Imam (peace be upon him) said: in the presence of her father, she has no right or discretion whatsoever until she has lost her virginal status; if she loses her virginal status, then she has discretion and a say. Question [posed in the session]: Professor’s response: The matter is whether a virgin, in general, has discretion or not; the Imam (peace be upon him) states that, in general, a virgin has no discretion unless she ceases to be a virgin. That is, suppose a girl has married; at first she was a virgin and had no discretion; suppose her husband dies, or she is divorced; once she is no longer counted as a virgin, does she still lack discretion? Here the Imam (peace be upon him) states that she has discretion. … That is, without needing to consult her father, she can decide for herself, and her father’s permission and consent have no bearing on the validity and effectiveness of her contract.
Approach to the Argument
This tradition, in fact, has two parts. One is the opening of the tradition, according to which the marrying-off of the minor girl is valid, effective, and binding—that is, after reaching maturity, she has no right whatsoever. The Imam (peace be upon him) has explicitly said “no”—that is, even if she reaches maturity, she has no discretion. The second part concerns the marrying-off of a virgin by the father; here too it states that even a mature virgin “has no say in the presence of her father”; her discretion rests with her father, and she herself has no discretion. We can invoke the latter part of the tradition as well, though not by way of explicit and corresponding indication (dalālah manṭūqiyyah wa muṭābaqiyyah), but rather by way of implicit indication (dalālah mafhūmiyyah), known by the name of priority (awlawiyyah). That is, we can also invoke the latter part of the tradition and say that, since the contract of a virgin without her father’s permission is not valid, and the virgin has no right to dissolve it, then, all the more so, the minor girl has no right to dissolve a contract. That is, we proceed by way of priority, which is the same as the concurring implication (mafhūm muwāfiq). Thus, in the third tradition, there are, in fact, two pieces of supporting evidence and two clauses and positions in the tradition that can be invoked.
Fourth Tradition
The fourth tradition is the tradition of Abū ʿUbaydah al-Ḥadhdhāʾ; it is a relatively long tradition, according to which the narrator states: “I asked Abū Jaʿfar (peace be upon him) about a boy and a girl whom their two guardians had married to each other, while both were not yet of age. He said: The marriage is valid, and whichever of them reaches maturity has the option [of rescission]. And if they both die before reaching maturity, there is no inheritance between them and no dower, unless they had both reached maturity and consented. I said: What if one of them reaches maturity before the other? He said: That is binding upon him if he consents. I said: What if the man who reached maturity before the girl, and consented to the marriage, then died before the girl reached maturity—does she inherit from him? He said: Yes; her share of the inheritance is set aside until she reaches maturity, whereupon she swears by God that nothing prompted her to take the inheritance except her consent to the marriage.” The opening of the tradition concerns the marrying-off of a minor boy and minor girl by the guardian; the question concerns the marrying-off of both by the guardian. The Imam (peace be upon him) said: the marriage is valid, and after reaching maturity, each has the option [of rescission]—whichever of them reaches maturity has the option [of rescission]. What does this mean here? How does this tradition indicate the non-establishment of the option? What is meant by “option” in this tradition is not the meaning we previously stated; because we said that “option” has two meanings: one, the option of rescission and ratification of the contract, which is the very meaning opposite to bindingness—that is, a contract has been concluded and possesses actual validity, but the holder is entitled to either rescind or ratify the contract. The second meaning of “option” is the right of rejection and permission, which pertains to an unauthorized contract (fuḑūlī)—that is, as in all instances of unauthorized transactions, this person can either reject or grant permission to this contract. We have previously explained the difference between these two; the difference between “option” meaning the right of rescission and ratification, and “option” meaning the right of rejection and permission, was previously explained. In one, there is actual validity; but in an unauthorized contract, if a ruling of validity is given, it is a contingent and potential validity (ṣiḥḥah shaʾniyyah wa taʾahhuliyyah) and has not attained actuality. Now, why is “option” here meant in the sense of the option in an unauthorized contract—that is, the right of rejection and permission, not the meaning of “option” intended in our present discussion? This is because the tradition contains the following statement, where the Imam (peace be upon him) said: “And if they both die before reaching maturity, there is no inheritance between them and no dower”—that is, if they pass away before reaching maturity, there is neither dower nor inheritance. This indicates that this contract has not attained actual validity; because, had it attained actual validity, they would have inherited from one another, whereas here it has been explicitly stated, “there is no inheritance between them and no dower.” This is an indicator and evidence that what is meant by their right regarding the confirmation or non-confirmation of the contract pertains to an unauthorized contract—that is, the right of rejection or permission. If permission is granted, then its validity becomes actual; up until now it possessed only a contingent capacity for being qualified as valid, but now it attains actual validity. Question [posed in the session]: Professor’s response: We have not yet entered into the conflicting traditions.
Approach to the Argument
The matter that must be attended to here is precisely this, which has given rise to this doubt: how does this tradition indicate bindingness? Because this tradition has been presented as one of the traditions of the third category. On the one hand, it states “he has the option [of rescission]” (lahu al-khiyār); but in the latter part of the tradition there is a matter that indicates the bindingness of the contract. In the latter part of the tradition, the dower has been placed upon the father. At the end of the tradition it states as follows: “I said: What if the girl died and had not yet reached maturity—does the husband who had reached maturity inherit from her? He said: No, because she has the option [of rescission] when she reaches maturity. I said: What if it was her father who married her off before she reached maturity? He said: The father’s marrying her off is binding upon her, and it is binding upon the boy, and the dower is upon the father, owed to the girl.” In a particular case, the dower has been placed upon the father. It is said that the very statement, “the father’s marrying her off is binding upon her, and it is binding upon the boy, and the dower is upon the father, owed to the girl,” indicates that the father’s marrying-off is binding, and that neither the boy nor the girl can rescind this contract. Therefore, the indication of the tradition toward bindingness is derived from this sentence of the tradition, where it states, “the father’s marrying her off is binding upon her, and it is binding upon the boy,” which, ultimately, also places the dower upon the father. Now, if this contract were not binding, why would it state that the dower is upon the father? Therefore, one part of this tradition indicates the bindingness of the contract. Objection raised: There is room for this objection: how, at the beginning of the tradition, is the guardian’s contract treated as unauthorized—as we have interpreted, stating that the option in “whichever of them reaches maturity has the option [of rescission]” pertains to an unauthorized contract—while at the end it states, “and the dower is upon the father, owed to the girl”? It appears there is an inconsistency between these two; the opening of the tradition indicates non-bindingness, in the sense we have stated, while the closing of the tradition indicates bindingness. Response given: to resolve this apparent inconsistency, a reconciliation has been proposed, and it has been said that this is reconcilable, in this manner: the term “guardian” (walī), which appears in the opening of the tradition, pertains specifically to the father; but in the closing, where the matter of the father is mentioned, it pertains to a different meaning, namely the negation of [guardianship for] anyone other than the father. This is because “guardian,” in its customary sense, encompasses the paternal uncle, the maternal uncle, and relatives; in the closing, where mention is made of the father, the intent is, in fact, to negate [guardianship for] anyone other than these. It has thus become established from all that we have stated that the tradition of Abū ʿUbaydah al-Ḥadhdhāʾ likewise indicates bindingness. This, however, is open to objection; the mere fact that the dower has been placed upon the father does not, by itself, convey this matter [conclusively].
Discussion for the Next Session
One further tradition remains, and likewise one further argument remains, which, God willing, we shall present, and then we shall turn to the conflicting traditions.