Issue 5, Second Position: Examination of the Establishment of the Option for a Minor Boy

Session Twenty-One

Issue 5 – Second Position: Examination of the Establishment of the Option for a Minor Boy – Arguments for the Positions – Arguments for the First Position – First Argument: General Traditions – Second Argument: General Unqualified Statements – Third Argument: Specific Traditions – First Tradition – Second Tradition – Examination of the First and Second Traditions

November 8, 2025

Arguments for the Positions

The discussion concerns the bindingness or non-bindingness of the marriage that has been concluded by the father or paternal grandfather on behalf of a minor boy. We have stated that two positions exist on this matter; these positions were briefly mentioned, and now we must examine the arguments for them.

Arguments for the First Position

The first position, which is the position of the bindingness of the marrying-off and that the boy, after reaching maturity, has no option and cannot dissolve the contract concluded by the father or paternal grandfather, is the well-known position (mashhūr), and some have even claimed consensus on it. This position may well have become predominant from the time of Muḥaqqiq al-Ḥillī onward, and many jurists, especially after Muḥaqqiq al-Ḥillī, have held to bindingness. Several arguments have been mentioned for this position.

First Argument: General Traditions

1. Traditions that indicate mutual inheritance (tawārith). We have previously mentioned these traditions with respect to the minor girl as well; the approach to the argument from those traditions for the bindingness of such a contract was likewise set forth, and we shall not repeat it here. Among these are the authentic tradition of Muḥammad ibn Muslim and the tradition of ʿUbayd ibn Zurārah, which indicate mutual inheritance after reaching maturity—for example, if the man passes away before reaching maturity, this girl inherits after reaching maturity. These traditions indicate the bindingness of such a contract.
2. Traditions that indicate the invalidity of a divorce undertaken by the father on behalf of a minor boy; such as the tradition of al-Ḥalabī, which we previously read. According to these traditions, if a minor boy is married off by the father or paternal grandfather to another, the father cannot divorce the boy [on his behalf]; therefore, the invalidity of a divorce undertaken by the father indicates the bindingness of the contract.
3. Traditions that indicate the validity of the marrying-off, with no further ruling attached to it—such as mutual inheritance after maturity or the invalidity of divorce. These traditions deem the marrying-off valid in a general manner—that is, if the father or paternal grandfather marries off the minor boy to another, this is valid. We have previously read these traditions; the traditions in this area are numerous and may well reach the threshold of profusion (istifāḑah); therefore we can say that some of these traditions certainly issued from the Infallible Imam (peace be upon him). It appears that the traditions that, in a general manner, convey the validity of the father’s marrying-off do not indicate bindingness. This is because the claim is the non-establishment of the option; one who holds to this position wishes to say that the boy, after reaching maturity, has no option and that this contract is binding; he must be bound by the contract concluded by his father on his behalf. But the tradition indicates the validity of the marrying-off; the validity of the marrying-off is not logically entailed by the absence of the boy’s option but is broader; therefore the argument is broader than the claim. These traditions indicate the validity of the marrying-off; the claim is the bindingness of the marrying-off; the validity of the marrying-off is compatible both with the supposition of the bindingness of the marrying-off and with the supposition of the permissibility of rescission; it is not contradictory to say that the contract which the father concludes on behalf of the minor boy is valid, yet also revocable—that is, the boy can dissolve that contract after reaching maturity. Therefore, these traditions cannot establish the bindingness of the marriage contract in this position.

Second Argument: General Unqualified Statements

The fourth argument is the general unqualified statements (ʿumūmāt) that indicate the bindingness of contracts, whether marriage or otherwise; in other words, the requirement of the primary general rule (aṣl awwalī) in the matter of contracts is the absence of the option. By “general unqualified statements” is meant something like “Fulfill your contracts” (awfū bi-l-ʿuqūd), which indicates the bindingness of every contract; marriage too is counted among these contracts. Therefore, according to the verse “Fulfill your contracts,” the contract that the father and paternal grandfather have concluded on behalf of the minor boy must be fulfilled. The meaning of the obligation to fulfill is that this contract cannot be rescinded and that the option has no bearing upon this contract. Therefore, the boy, after reaching maturity, has no right to dissolve this contract; because “Fulfill your contracts” requires that the boy remain bound by the contract that his father has concluded. Thus, the fourth argument is the primary general rule in the matter of contracts, or the general unqualified statements derived from it, namely that every contract must be fulfilled, and marriage too is counted among these contracts. Objection raised: these general unqualified statements do not encompass our present case, because “Fulfill your contracts” means “fulfill your own contracts” (awfū bi-ʿuqūdikum); when it says to fulfill contracts, it means to fulfill your own contracts. The contract that has been concluded on behalf of this child by the father before reaching maturity is not counted as the boy’s own contract but as the father’s contract; the address “Fulfill your contracts” is not directed at the boy but at the father or paternal grandfather; therefore they cannot dissolve the contract, but the boy, after reaching maturity, can dissolve this contract, because this contract is not his, such that it would fall within the scope of “Fulfill your contracts.” Response given: when the father or paternal grandfather marries off the minor boy to another, this is on the basis of his guardianship over him; this is neither agency (wakālah), nor is it like the act of an unauthorized person (fuḑūlī); rather, the father, on the basis of having this discretion, marries off the minor boy to another. Therefore, the guardian’s contract is the very same contract of the ward; and for this very reason, “Fulfill your contracts,” which encompasses the guardian, necessarily encompasses the ward as well, because this contract is counted as his. When the guardian, by virtue of his guardianship, executes the contract, his contract is, as it were, the very contract of the ward; if “Fulfill your contracts” encompasses every contract that someone has concluded, it encompasses the contract of the guardian, and the contract of the guardian is the very contract of the ward. He has arranged this matter on the ward’s behalf, for him, and with the discretion that he possesses. Therefore, to say that “Fulfill your contracts” does not encompass the ward and does not include the minor boy is not correct. Up to this point, we have mentioned four arguments that are presented as general arguments; some of these arguments indicate bindingness, and some do not.

Third Argument: Specific Traditions

Alongside these, we have certain specific traditions (riwāyāt khāṣṣah) that indicate the bindingness of such a contract. These traditions are numerous, and we shall transmit some of them to determine whether they indicate this matter or not. Among these traditions are the tradition of ʿUbayd ibn Zurārah and that of al-Faḑl ibn ʿAbd al-Malik; these traditions have been transmitted and invoked by the late Āyatullāh Khūʾī.

First Tradition

The tradition of ʿUbayd ibn Zurārah: “From ʿUbayd ibn Zurārah, who said: I asked Abū ʿAbd Allāh (peace be upon him) about a man who marries off his son while he is a minor. He said: If his son has property, the dower is upon him; and if the son has no property, the father is the guarantor of the dower, whether he undertook to guarantee it or not.”

Second Tradition

The tradition of al-Faḑl ibn ʿAbd al-Malik: “From al-Faḑl ibn ʿAbd al-Malik, who said: I asked Abū ʿAbd Allāh (peace be upon him) about a man who marries off his son while he is a minor. He said: There is no problem in it. I said: Is the father’s divorce [on his behalf] valid? He said: No. I said: Upon whom is the dower? He said: Upon the father, if he has guaranteed it for them; and if he has not guaranteed it, it is upon the boy, unless the boy has no property, in which case the father is the guarantor of it, even if he had not [previously] guaranteed it. And he said: When a man marries off his son, that is a matter for his son [to bear]; but if he marries off his daughter, it is valid [upon her].” According to the tradition of [ʿUbayd ibn] Zurārah, the dower is upon the minor boy—that is, with respect to the contract that has been concluded, this dower is incumbent upon the minor, or, in the wording of the tradition, upon the boy (ghulām). If this boy has no property, or if the father has guaranteed the dower, it is upon the father. The unqualified scope present in this tradition indicates the obligatory nature of the dower, even if the contract is rescinded; the necessary consequence of this ruling is that this rescission would have no effect. The very statement that the dower is upon the boy, and that, if he has no property, it falls upon the father, indicates bindingness by way of logical entailment (bi-l-iltizām); because, if it were not binding, the dower would not have been placed upon the father. The very fact that it has been placed upon the father makes clear that this contract is binding. We have a similar case in the tradition of al-Faḑl ibn ʿAbd al-Malik. These are traditions that the late Āyatullāh Khūʾī has invoked, and certain other jurists have likewise accepted them.

Examination of the First and Second Traditions

Do these traditions indicate bindingness or not? Several objections have been raised against these specific traditions. One objection is that these traditions, in this respect, are not in the position of stating [the full intended meaning] (fī maqām al-bayān); for us to invoke these traditions as an argument, we must first establish their unqualified scope; and the unqualified scope is, in turn, contingent upon these traditions being in the position of stating [the full meaning] in this respect—that is, with respect to bindingness or non-bindingness. However, these traditions, in this respect, are not in the position of stating [the full meaning]; rather, they merely state upon whom this dower falls. Since they are not in the position of stating [the full meaning] in this respect, they have no unqualified scope; and since they lack unqualified scope, they cannot be used as an argument indicating the bindingness of this marriage.

Discussion for the Next Session

Certain other traditions have also been invoked here as specific traditions that indicate bindingness. God willing, we shall examine these traditions in the next session.