Issue 6, Second Supposition, Second Position: The Invalidity of Both the Contract and the Dower

Session Twenty-Nine

Issue 6 – Second Supposition – Second Position: The Invalidity of Both the Contract and the Dower – Arguments for the Second Position – First, Second, Third, and Fourth Arguments – An Objection and Its Response

December 1, 2025

Summary of the Previous Session

The discussion concerns a contract that the guardian has concluded on behalf of a minor boy or minor girl for less than the customary dower, or more than it. We stated that three positions exist on this matter; the first position, which was examined in the previous session, was the position of the validity of the contract and its bindingness, and the effectiveness of the dower. The conclusion was that the arguments advanced for this position are not adequate; seven arguments were stated for this position, and all of them were subjected to objection.

Second Position: The Invalidity of Both the Contract and the Dower

The second position is the position of the invalidity of both the contract and the dower—that is, neither is the contract valid, nor is the dower effective. This position has been accepted by the late Sayyid in al-ʿUrwah, and some of the eminent scholars, including the late Āyatullāh Khūʾī and others, have held to it. We have read the statement of the late Sayyid in al-ʿUrwah, who stated: “The stronger of the two is the second”; “the second” refers to the invalidity of both the contract and the dower together. The late Āyatullāh Khūʾī has likewise stated: “And hence the correct view is what the author [of al-ʿUrwah] (may his secret be sanctified) has chosen, namely the ruling of the invalidity of both together, in agreement with many of our colleagues”; he attributes to many of the [Imāmī] scholars the holding that both the contract and the dower are invalid.

Arguments for the Second Position

Altogether, three arguments have been mentioned for the position of the invalidity of both the contract and the dower.

First Argument

The first argument is that the contract and the dower are not two separate matters, but rather are constituted through a single performative utterance (inshāʾ)—that is, when the contracting party performatively utters the marriage contract, the marriage or marrying-off is qualified by a specific amount called the dower. In fact, the object sought (maṭlūb) in this single contract is one, not multiple; it is not the case that we have two distinct objects sought, as those who hold to the validity of the contract and the invalidity of the dower have argued from this very angle. We shall later state their argument; they say that the matter here is one of multiplicity of objects sought (taʿaddud al-maṭlūb)—one object sought is the basic marrying-off, and the other object sought is the dower. Now, here, the dower has a problem, but the other object sought has no problem. The late Āyatullāh Khūʾī, following certain other jurists, argues that what has been performatively constituted in this marriage is not an unqualified marrying-off, but rather a marrying-off qualified by the condition of the dower; when the dower encounters a problem, the qualified [marrying-off] likewise encounters a problem—when the qualifying condition (qayd) is negated, the qualified thing (muqayyad) is negated as well. The problem with the dower is that it is less than the customary dower, and this results in harm to the ward; the ward has sustained loss, and since the dower is a qualifying condition for the marrying-off, and the object sought in it is a single matter, therefore, with the problem that arises in connection with the dower, the contract itself likewise encounters a problem. This is because this marriage contract is qualified by this dower; the performative constitution of this marriage with this dower is regarded as a single object sought. Therefore, the unity of the performative act, or the unity of the object sought, in this position, requires that, if the dower is subject to objection, the contract itself likewise becomes problematic. This is because the marrying-off was undertaken with this dower; this marriage has been performatively constituted with this amount of dower. These are one thing, not two things. When a defect arises in one aspect, it is as though a problem has arisen in the whole.

Second Argument

Let us grant that this matter is one of multiplicity of objects sought, not unity of object sought—that is, let us say that it is true that a single marriage has been performatively constituted, but that this marriage possesses two objects sought. One object sought is the marriage itself, and the other object sought is the dower. If the dower encounters a problem, there is no reason for us to regard the contract as having a problem as well; this is like the sale of that which can be owned together with that which cannot be owned (bayʿ mā yumlak wa mā lā yumlak). If someone sells two things together, one of which is capable of ownership, like all permissible things, and the other of which is not capable of ownership (either from the perspective of common usage or the Sacred Law)—for example, he purchases wine and vinegar together; here, wine cannot, according to the Sacred Law, be owned, and is “that which cannot be owned,” but vinegar has the capacity for ownership. It is true that these have been transacted in a single sale, but, from the perspective of common usage and rational agents, they are counted as two distinct objects sought; one object sought is the wine, and the other object sought is the vinegar. If one object sought has a problem, there is no reason for the other object sought to have a problem as well; in technical terms, this single performative utterance is, in effect, equivalent to multiple performative utterances. If we accept that our present case, too, belongs to this category of multiplicity of objects sought—that is, if we set aside the first argument and descend to the position that this is, in effect, equivalent to multiple performative utterances, as it were one performative utterance with respect to the basic marrying-off and another performative utterance with respect to the dower—there remains a further problem, namely that, if we say that both the contract and the dower are invalid (as the late Sayyid and the late Āyatullāh Khūʾī have stated), there is here no correspondence (taṭābuq) between the offer (ījāb) and the acceptance (qabūl); because the husband, before the contract, had discussed the matter and had ascertained a specific dower, and accepted the contract with a specific dower. Therefore, the offer, with respect to the marrying-off, is not devoid of the dower; the dower and the marrying-off are jointly the object of the offer. He says: “I have married off my client for the known dower”; therefore the offer pertains to the marrying-off with this dower. If the acceptance were to pertain only to the dower, with the contract remaining valid, this would necessarily entail that there be no correspondence between the offer and the acceptance. Thus, the second argument, in fact, wishes to say that one cannot rule the invalidity of the dower together with the validity of the contract; because, if the dower is invalid and the contract is valid, this entails an untenable consequence (tālī fāsid), namely that there would be no correspondence between the offer and the acceptance, and since the absence of correspondence between the offer and acceptance is unacceptable, this position too is unacceptable—that is, the position of the invalidity of the dower together with the validity of the contract. Therefore, the second argument is, as it were, a hypothetical syllogism (qiyās istithnāʾī): if we were to say that the contract is valid without the dower, this would necessarily entail the absence of correspondence between the offer and the acceptance; but the consequent is invalid—that is, the absence of correspondence between the offer and acceptance is invalid; therefore, the antecedent is likewise [invalid]; the antecedent here is the position of the validity of the contract and the invalidity of the dower.

Third Argument

The third argument, too, is advanced on the supposition of accepting multiplicity of object sought and multiplicity of performative utterance. The first argument was advanced on the supposition that this matter is one of unity of object sought—that is, that the marrying-off and the dower together constitute a single object sought, because the marrying-off has been performatively constituted as qualified by this very dower; therefore, with the problem that arises in connection with the dower (the qualifying condition), the basic contract (the qualified thing) likewise becomes problematic. The second and third arguments, on the supposition of descending from the first argument and accepting the basis that our present case belongs to the category of multiplicity of object sought—that is, that the contract itself is one object sought and the dower is another object sought; this marrying-off, although outwardly a single performative utterance, is, in effect, equivalent to multiple performative utterances. Thus, the third argument is also advanced on this supposition. This too is a hypothetical syllogism; it states that if we were to hold to the invalidity of the dower and say that, because the stipulated dower (mahr al-musammā) is less than the customary dower, it is invalid, and that recourse must be had to the customary dower, this, in one case, results in harm to the husband, and in the other case, results in harm to the wife; but harm to the husband and to the wife is not correct; therefore, the position holding the dower invalid without [invalidating] the contract is not correct. Thus, in fact, these arguments are directed at negating the subsequent position—that is, the position of the validity of the contract and the invalidity of the dower; this very position to which the Imam (may God’s mercy be upon him), in the text of Taḥrīr, has held. The late Shaykh al-Anṣārī, too, has held this same position, contrary to the author of al-ʿUrwah. The view of the Imam here differs from the view of the author of al-ʿUrwah; the Imam stated: “the stronger view is the validity of the contract and its bindingness, and the invalidity of the dower,” whereas the late Sayyid regards both as invalid. This argument, too, is, in fact, directed at negating this position. If we say that the dower is invalid and the contract is valid, this entails harm to the husband, in a case where the daughter has been married off for less than the customary dower. For example, her dower ought to have been one million tomans, but it is now five hundred thousand tomans; we stated that the invalidity of the dower means that the stipulated dower is not effective and recourse must be had to the customary dower—that is, this five hundred thousand tomans becomes one million tomans. This increase of the dower from the stipulated amount to the customary amount results in harm to the husband; the husband had accepted this woman with this dower; now, if her dower becomes one million tomans, this person sustains a loss and harm to the extent of five hundred thousand tomans, and this harm is not acceptable. The same applies on the side of the wife; suppose a father has married off his son for a dower greater than the customary dower—for example, the customary dower for such a girl was one million tomans, but this man has set a dower of two million tomans for his son. If we say that this dower is invalid and recourse must be had to the customary dower, and this two million tomans becomes one million tomans, this results in harm to the wife. However, harm—whether to the husband or to the wife—is negated [by the principle of “no harm”]. The result is that the position of the validity of the contract together with the invalidity of the dower is not acceptable.

Fourth Argument

A fourth argument can also be advanced here, which, of course, is operative in the case of doubt—that is, if we doubt whether this contract is valid or not, the presumption of invalidity (aṣālat al-fasād) requires that this contract be ruled invalid. Therefore, here too, we cannot hold to the validity of the contract without [the validity of] the dower. These, altogether, are the four arguments that have been mentioned in this position.

An Objection

An objection and doubt are raised here, namely: you state that the dower cannot be invalid while the contract is valid, because these belong to the category of unity of object sought; the contract and the dower are a single object sought—a single performative act and a single object sought. If, for example, the dower encounters a problem, the contract likewise becomes problematic. This is, in fact, the claim of those who hold to the second position. The objection is that what is well known and current in jurisprudence is that mentioning the dower in the text of the contract is not obligatory—meaning that, for example, if someone forgets to mention the dower in the contract, the contract is not, in this case, invalid, and recourse is had to the customary dower. Or, for example, if someone mentions, as the dower, something that is not capable of ownership, this does not result in the invalidity of the contract—for example, if he sets wine or alcohol as the dower; here, no one has issued a ruling of the invalidity of the contract; rather, recourse is had to the customary dower. This indicates that the dower is counted as a matter independent of the contract; therefore, these two rulings indicate the independence of these two and the multiplicity of object sought; they indicate that the contract is one object sought and the dower is another object sought. If these were supposed to constitute a single object sought, belonging to the category of qualifying condition and qualified thing, then, with the negation of the qualifying condition, the qualified thing too ought to be negated; with the invalidity of the dower, the contract too ought to become invalid; with the failure to mention the dower, the contract too ought to become invalid. Whereas the rulings of the jurists in these two cases indicate that the contract can be valid while the dower is corrupt and invalid. They state that if the dower is not mentioned, the contract does not become invalid; if something is set as the dower that cannot be constituted as a dower, here too the contract does not become invalid. Therefore, the doubt and objection to the second position is: why do you say that these belong to the category of unity of object sought? This is the best evidence that these belong to the category of multiplicity of object sought.

Question:

Professor: As it were, the objector wishes to say that this itself indicates that the matter does not belong to the category of unity of object sought, and does not belong to the category of qualifying condition and qualified thing; otherwise, such a ruling ought not to have been issued.

Response

In response to this objection, it has been said that the ruling that mentioning the dower in the contract is not obligatory does not mean that, if there is no dower, the contract does not become invalid. The discussion is about mentioning the dower in the contract; otherwise, the dower is specific and known—they have discussed it, only it has not been mentioned in the text of the contract. The failure to mention the dower differs from the absence of the dower; if we suppose that someone concludes a contract and performatively constitutes a marriage with the intention of not setting any dower whatsoever, this contract is certainly invalid. The discussion and the ruling of the scholars pertains to a case where there is an intention to specify a dower, and they do not wish to conclude the contract without a dower; only they have forgotten, or have not included it in the text of the contract. They have stated that this does not result in invalidity, and recourse is had to the customary dower, and, as a matter of fact, this suffices. But, with respect to a corrupt dower, the basic dower has been accepted, and the problem is that something has been set as the dower that is not capable of ownership. Therefore, the qualifying condition itself exists; only, because it is forbidden according to the Lawgiver, the Lawgiver, as it were, converts this into a permissible dower, which is the very customary dower. Therefore, these two rulings cannot serve as evidence for the independence of the dower from the marriage; they cannot serve as evidence for multiplicity of object sought. Here, this marriage and the dower are counted as a single object sought, such that, if a defect occurs in the dower, the contract itself likewise becomes defective. This is the substance of the second position and its four arguments, along with the doubt that has been raised regarding this position and the response to that doubt.

Discussion for the Next Session

The third position is the position of Shaykh al-Anṣārī and the Imam (may God’s mercy be upon him)—that is, the position of the validity of the contract and the invalidity of the dower. The Imam, in Taḥrīr, has accepted the third position. We must determine what the argument for the third position is, and what response can be given to the second position.