Issue 5, Second Position: Examination of the Establishment of the Option for a Minor Boy
Session Twenty-Two
Issue 5 – Second Position: Examination of the Establishment of the Option for a Minor Boy – Arguments for the Positions – Arguments for the First Position – Fifth Argument: Specific Traditions – Third Tradition – Examination of the First and Second Traditions – Objection – Response of Muḥaqqiq Khūʾī and Its Examination – Fourth Tradition – Summary of the Specific Traditions (Fifth Argument)
November 9, 2025
Summary of the Previous Session
The discussion concerns the arguments for the bindingness of the marriage contract that has been concluded by the father or paternal grandfather on behalf of a minor boy; several arguments have been invoked to establish the bindingness of this marriage. In the previous session, certain arguments were mentioned; these arguments consisted of certain general unqualified statements and general rules, as well as traditions that, in a general manner, contain matters from which we can derive bindingness. A further argument was specific traditions; however, there are certain considerations regarding some of the arguments mentioned in the previous session, which we shall also state.
Third Tradition
A further tradition is the tradition of Abū ʿUbaydah al-Ḥadhdhāʾ; according to this tradition, the dower is obligatory upon the father with respect to the girl (jāriyah); the opening of the tradition was: “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.” What appears in the opening of the tradition indicates revocability; therefore, we have previously stated that there might appear to be an inconsistency between the opening and the closing of this tradition. This is because, in the closing of the tradition, it states: “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.” According to this part of the tradition, this marriage is binding; because it states that the marrying-off undertaken by the father is effective both for the daughter and for the boy, and the dower is also upon the father. The very fact that the dower has been placed upon the father indicates bindingness. The objection was raised that there appears to be an inconsistency between the opening and the closing of the tradition; in the opening of the tradition, mention is made of the establishment of the option, but the closing of the tradition has the apparent sense of bindingness and the absence of the option. We stated that, to resolve this problem, “guardian” in the opening of the tradition has been construed as referring to a customary guardian; by customary guardian is meant the brother, the maternal uncle, the paternal uncle, and those who, in the view of common usage, have discretion with respect to a girl or boy. Therefore, the establishment of the option in the opening of the tradition pertains to those who have guardianship according to common usage, not according to the Sacred Law. When someone did not have guardianship according to the Sacred Law, and nevertheless married off this girl or boy, these two have the discretion of rescission; because they [the customary guardians] were acting without authorization (fuḑūl), and this boy and girl have the discretion of rejecting or ratifying this contract. Therefore, the opening of the tradition is not relevant to our present case. But the closing of the tradition, which raises the matter of the dower and deems it to be upon the father, indicates bindingness—that is, the contract that the father concludes on behalf of the son is binding. If it were not binding, the dower would not have been placed upon the father. Thus, this tradition is among the specific traditions that indicate bindingness; in the previous session we read two traditions from among the specific traditions; this tradition becomes the third.
Examination of the First and Second Traditions
The authentic 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.” The approach to the argument from this tradition is evident; in this tradition, a distinction is drawn between the case where this minor boy has property and the case where he has no property. It states: if this boy, whose father has married him off to another, has property, the dower is incumbent upon him; but if he has no property, the dower is upon the father, whether the father has undertaken to guarantee it or not. The very fact that a distinction has been drawn in the matter of the dower between these two cases indicates the validity and bindingness of the marriage. 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 this tradition, the Imam (peace be upon him) has stated that if the father marries off his son to another, there is no problem in it. The approach to the argument from this tradition is that the unqualified scope of the ruling of validity requires that, even after the boy reaches maturity, he should have no discretion to dissolve this contract. If the Imam (peace be upon him) had had in view the boy’s discretion after reaching maturity, he would not have stated, in an unqualified manner, “there is no problem.” Therefore, the unqualified scope of “there is no problem,” in the Imam’s (peace be upon him) answer to the narrator’s question, requires that this contract be valid and effective both before and after maturity, and that the contract is not contingent upon the boy’s permission and confirmation after maturity.
Objection
The main objection to both traditions is that, although the ruling of validity is unqualified, this unqualified scope is not adequate with respect to the aspect of our present discussion. The aspect of our present discussion is whether this boy, after reaching maturity, has the discretion to rescind this contract or not. This must be verified—namely, that the Imam (peace be upon him), in this respect, was in the position of stating [the full intended meaning] (fī maqām al-bayān)—so that we might, by invoking the unqualified scope of the Imam’s (peace be upon him) statement, establish bindingness. It is clear that the tradition, in this respect, is not in the position of stating [the full meaning]; therefore, establishing bindingness by means of these two traditions is problematic. Yes, these two traditions establish the basic validity [of the contract]; but validity is not logically entailed by bindingness.
Response of Muḥaqqiq Khūʾī
The late Āyatullāh Khūʾī has raised this matter in the form of an objection and a response. He states: if someone claims that validity does not conflict with non-bindingness, but is rather compatible with the establishment of the option as well, on the grounds that the subject matter of this option is a contract that is ruled valid (because an invalid contract has no meaning with respect to an option), therefore this tradition does not indicate bindingness, because validity is compatible with revocability as well. The response is that the subject of the option is the very validity [of the contract]. Pay close attention! We wish to determine whether this response of the late Āyatullāh Khūʾī is correct or not. Attend carefully to the course of the discussion; first, we set forth these two traditions and the approach to the argument from them for bindingness; the objection to this argument was also set forth. The objection was that these two traditions indicate the validity of the contract, and validity is broader than [encompassing both] bindingness and revocability. He states: the subject of the option is the very fact of validity; but bindingness is not derived from validity itself, but rather from the unqualified scope of validity. Therefore, let no one say that validity does not conflict with the non-establishment of the option of [rejecting] bindingness. Thus, as it were, the late Āyatullāh Khūʾī states that we have two things: one is validity itself, and the other is the unqualified scope of validity. Validity itself is broader than [encompassing both] the bindingness and the revocability of the contract—that is, if it is said somewhere that a contract is valid, this contract can be either binding or revocable—that is, the option can be established with respect to it. But we have not invoked the basic fact of validity, such that you might raise this objection against us; we have invoked the unqualified scope of validity. The unqualified scope of validity means that this contract is valid in every respect, even after maturity; even if the boy wishes to rescind it, he cannot do so; this contract is valid in every respect. Therefore, with the assistance of the unqualified scope of validity, we derive bindingness from these two traditions.
Examination of the Response of Muḥaqqiq Khūʾī
This response of Āyatullāh Khūʾī is open to objection; he states that we derive bindingness from the unqualified scope of validity. The objection is the very same one we previously stated: that there is no unqualified scope here; because the most important condition for unqualified scope and the premises of wisdom (muqaddimāt al-ḥikmah) is that the speaker be in the position of stating [the full meaning]. Here, in order to invoke the unqualified scope of validity, we must verify that the Imam (peace be upon him), in this respect as well, was in the position of stating [the full meaning]—namely, that this contract is valid even after reaching maturity; whereas we cannot verify this. Therefore, the ruling of validity in these two traditions has no unqualified scope; what is stated in these two traditions is the basic fact of validity. The basic fact of validity, too, is broader than [encompassing both] bindingness and revocability—that is, here it merely wishes to say that this contract is valid; now, whether the option is established for this boy or not is a separate matter, which is not derived from this tradition. Up to this point, we have read three traditions from among the specific traditions: the tradition of Abū ʿUbaydah al-Ḥadhdhāʾ, the tradition of ʿUbayd ibn Zurārah, and the tradition of al-Faḑl ibn ʿAbd al-Malik. Of these three traditions, with respect to the first tradition, we can say that bindingness is derived from it; but the tradition of al-Faḑl ibn ʿAbd al-Malik and the tradition of ʿUbayd ibn Zurārah do not indicate bindingness. A further tradition is the tradition of al-Ḥalabī, which is referred to as an authentic tradition (ṣaḥīḥah): “From al-Ḥalabī, who said: I said to Abū ʿAbd Allāh (peace be upon him): a boy who is ten years old, and his father marries him off during his minority—is his divorce [of his wife] valid while he is ten years old?” He states: I said to Imam al-Ṣādiq (peace be upon him): there is a ten-year-old boy whom his father has married off to another; is his divorce valid while he is ten years old? “He (peace be upon him) said: As for his marrying-off, it is valid; but as for his divorce, his wife should be kept for him until he reaches maturity.” In the previous session, we referred to this tradition and stated that some traditions indicate the validity of the father’s marrying-off and attach a further consequence to it, namely the matter of divorce—that is, that the father cannot divorce this wife [on the son’s behalf]; this itself indicates bindingness. To say that this tradition belongs among the specific traditions may perhaps not be entirely correct; this tradition is itself an independent argument. The four arguments that we mentioned in the previous session were: one, traditions indicating inheritance and mutual inheritance; one, traditions indicating the invalidity of divorce; one, traditions indicating the validity of the father’s marrying-off, which, in an unqualified manner and without any reference to the matter of divorce or mutual inheritance, indicate bindingness; and one, the general unqualified statements and general rules. The fifth argument was specific traditions. That some have included the authentic tradition of al-Ḥalabī among the specific traditions does not appear to be correct; the authentic tradition of al-Ḥalabī is not counted among the specific traditions.
Fourth Tradition
The fourth of the specific traditions is a tradition transmitted in Daʿāʾim al-Islām: “From ʿAlī (peace be upon him), who said: The marrying-off [conducted] by fathers is binding upon sons and daughters when they are minors, and they have no option when they grow up.” The indication of this tradition is clear and evident; it states that, if fathers marry off their daughter or son, this is effective; the marrying-off by fathers is binding upon sons and daughters when they are minors—that is, while they are children and below the age of maturity, fathers can marry them off to another. It then explicitly states: “and they have no option when they grow up”—if they grow up, they have no discretion. This very clearly indicates bindingness. Therefore, the status of this tradition, with respect to its indication, is clear. However, the problem is that the chain of transmission of the tradition is not authoritative and has a weakness in its chain. The traditions of Daʿāʾim al-Islām generally have this problem; therefore, bindingness cannot be derived from this particular argument.
Summary of the Specific Traditions (Fifth Argument)
Among the specific traditions, only one tradition (the tradition of Abū ʿUbaydah al-Ḥadhdhāʾ) indicates bindingness; the other traditions do not indicate bindingness. This itself may well be the reason why, for establishing bindingness with respect to the marriage of a minor boy by the father, most or the majority of jurists have not relied upon the traditions. Perhaps only the author of Madārik has relied upon the traditions; otherwise, most jurists, especially among the intermediate and earlier generations, have not invoked the traditions to establish the bindingness of the contract of a minor boy. Rather, they have primarily relied upon the general rules and unqualified statements, and have not raised the traditions. You have observed that, in some instances, these traditions have not received attention, and some of them indeed do not carry the indication.
Discussion for the Next Session
A sixth argument remains; however, before we state the sixth argument, as I have mentioned, there are certain considerations regarding the previous arguments which we must state.