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

Session Thirty

Issue 6 – Second Supposition – Second Position: The Invalidity of Both the Contract and the Dower – Arguments for the Second Position – Fifth Argument – Third Position: The Validity of the Contract and the Invalidity of the Dower – Arguments for the Third Position – First Argument and Its Examination – First and Second Objections and Their Examination

December 6, 2025

Summary of the Previous Session

The discussion concerns the position of the invalidity of both the contract and the dower, in a case where the guardian marries off an immature boy or immature girl for more or less than the customary dower. We mentioned four arguments for this position, and these four arguments were subjected to objection. Before we proceed to the third position—namely, the position of the validity of the contract and the invalidity of the dower—one argument remains from the second position; we shall state this argument as well, and then, God willing, proceed to the third position.

Fifth Argument

The fifth argument for invalidity is the causal explanation (taʿlīl) found in the tradition of Abū Ḥamzah al-Thumālī, which warns against dealing in a child’s property beyond what is necessary: “From Abū Ḥamzah al-Thumālī, from Abū Jaʿfar (peace be upon him), who said: The Messenger of God (peace be upon him) said to a man, ‘You and your property belong to your father.’ Then Abū Jaʿfar (peace be upon him) said: ‘And I do not like for him [the father] to take from the property of his son except what he needs, that which is indispensable; indeed, God, Mighty and Exalted, does not love corruption.'” We have previously read this tradition; according to this tradition, Imam al-Bāqir (peace be upon him) tells Abū Ḥamzah al-Thumālī: the father has discretion over the child and his property. However, he continues by stating: I do not like for the father to take and acquire more than the amount needed from the child’s property; he may take from the child’s property only the amount that is indispensable and necessary; beyond this, he has no right to deal [in the property]. He then states the reason for this matter, namely, “Indeed, God does not love corruption.” Therefore, taking more than the amount of necessity becomes an instance of corruption, which God does not love. On this basis, if someone marries off a son for more than the customary dower, it is as though he has taken more than the amount of necessity from his property; after all, the customary dower has a certain measure, and if a dower greater than the customary amount is set, this constitutes corruption, and God does not love corruption. Therefore, a contract founded on this basis becomes problematic on account of this matter; after all, setting such a dower creates corruption and disagreement, and results in dispute, and this falls under the prohibition and “Indeed, God does not love corruption.”

Examination of the Fifth Argument

This argument cannot establish the invalidity of the contract; at most, it results only in the dower itself becoming invalid. This is because the subject matter under discussion is the setting of a dower greater than the customary dower; if we regard this as an instance of dealing in the child’s property beyond the amount of necessity and need, the result, at most, is that this dower is corrupt and invalid. Now, as to what invalidity means here, we are not concerned with this for the moment; but on what grounds would the contract itself be invalid? If there is a way to return this property—for example, if we leave this to the discretion of the son, and he himself accepts and is satisfied with this dower (a dower greater than the customary dower)—this would not fall under “Indeed, God does not love corruption,” because the son himself is satisfied and has this discretion and right. Therefore, this causal explanation, which appears in the closing of the tradition, cannot establish the invalidity of the contract. No other argument exists on this matter; only the late Āyatullāh Ḥakīm has stated a certain matter in connection with invoking “no harm” (lā ḑarar), which, God willing, we shall present.

Third Position: The Validity of the Contract and the Invalidity of the Dower

The third position is the position of the validity of the contract and the invalidity of the dower. The Imam (may God’s mercy be upon him), in the text of Taḥrīr, has held to this position: “the stronger view is the validity of the contract and its bindingness, and the invalidity of the dower”; he then explains what is meant by invalidity—what the invalidity of the dower means: “meaning that it is not effective and is contingent upon ratification after reaching maturity.” “If he ratifies it, it becomes fixed; otherwise, it reverts to the customary dower.” If this boy or girl, after reaching maturity, grants ratification, this contract becomes fixed; but if he does not ratify it, the contract does not become invalid, but rather recourse is had to the customary dower. Therefore, the contract is valid, but, instead of the stipulated dower, the customary dower becomes the criterion and standard. This meaning of invalidity is not of the kind stated with respect to an unauthorized contract (fuḑūlī); this pertains only to the dower. If invalidity meant that, in general, in the case of non-ratification, the contract would become entirely invalid, this would mean that, as it were, this contract is held to possess only contingent validity (ṣiḥḥah shaʾniyyah), not actual validity (ṣiḥḥah fiʿliyyah)—because everything would then turn on ratification; if he does not ratify it, the contract becomes invalid. This is not what the Imam wishes to say here; he states that, if he ratifies it, the contract attains fixity, but if he does not ratify it, only the dower is converted to the customary dower.

The Statement of the Late Sayyid

The late Shaykh al-Anṣārī, in his treatise on marriage, has likewise chosen this same position, contrary to the late Sayyid. We have read the statement of the late Sayyid, who stated “the stronger of the two is the second”; we have also explained “the second,” stating that it means the invalidity of both the contract and the dower. He then explains invalidity, stating: “and what is meant by invalidity is non-effectiveness, meaning that it is contingent upon her ratification after reaching maturity”; this is the very same matter that is also derived from the statement of the Imam. Invalidity means the non-effectiveness of the dower and its being contingent upon the ratification of the minor boy or minor girl. The late Sayyid, in continuation, has mentioned a further possibility regarding invalidity, which has been objected to by some of the annotators; the late Sayyid has stated: “and it is possible that it is invalid even with ratification”—it is possible that we should hold to invalidity even if he ratifies it. “On the basis of the requirement that the one granting permission exist at the present time”—on the basis that the one granting permission must exist at the time of the contract and possess the eligibility for permission, and here this is not the case—that is, even if he grants permission, this permission is of no benefit and is not effective. This is because, at the time of the contract, he lacked the eligibility for permission and had not yet reached maturity; according to this basis, permission is effective only if the one granting permission existed at the time of the contract—that is, possessed the eligibility for permission—whereas he was not mature at the time of the contract and lacked the eligibility for permission. Therefore, the late Sayyid has raised the possibility of invalidity, even with ratification. This possibility has been objected to by some of the annotators, including the Imam (may God’s mercy be upon him) himself; in connection with this statement of the late Sayyid, where he states “and it is possible that it is invalid,” he has an annotation, in which he has written: “Its weakness has passed”—this possibility is weak, because the very basis [for it] is not correct. That very basis is itself open to objection. The late Muḥaqqiq ʿIrāqī and Muḥaqqiq Nāʾīnī also have annotations here; Muḥaqqiq ʿIrāqī has written: “And it is very weak indeed, and its basis is clear”; he states that this possibility is indeed very weak, and its basis, too, is evident. Muḥaqqiq Nāʾīnī, too, has an annotation here: “It has previously been established that the stronger view is the opposite of this”; the stronger view is contrary to this possibility. In any case, regarding the position of the validity of the contract and the invalidity of the dower, which the Imam (may God’s mercy be upon him) has accepted, there exist, apart from the point we have stated, two further possibilities in the interpretation of the invalidity of the dower. What does it mean to say that the contract is valid and the dower is invalid? One possibility is precisely what appears in the text of Taḥrīr: “meaning that it is not effective and is contingent upon ratification after reaching maturity; if he ratifies it, it becomes fixed; otherwise, it reverts to the customary dower”; if he ratifies it, this very dower attains fixity; otherwise, recourse is had to the customary dower; if he does not ratify this dower, recourse is had to the customary dower. The other possibility regarding invalidity is that, if this person does not accept it, recourse is had to the customary dower—that is, the contract is valid from the very outset, but, with respect to the dower, without being contingent upon his ratification, it transfers to the customary dower. This possibility is derived from certain statements—that is, it is not contingent upon his ratification; from the outset, it transfers to the customary dower. This differs from the possibility that appears in the statement of the late Sayyid; this possibility too is incorrect. In summary, the third position is the position of the validity of the contract and the invalidity of the dower.

Question:

Professor: That is, for example, he has been married off for more than the customary dower, and this is contingent upon the son’s ratification; now, if the son does not ratify it, and the supposition is that recourse is had to the customary dower—here, according to the general rule, it is the daughter who would refuse to ratify, because this is to the son’s benefit; the stipulated dower, which was greater than the customary dower, has been reduced. … The problem that might arise lies on the daughter’s side; she was satisfied with the stipulated dower, but might not be satisfied with the customary dower; what is to be done here? … Allow us to state the arguments for this position first; this is raised as a doubt that follows afterward. That is, let us examine the arguments advanced for this position—that the dower is invalid and the contract is valid—and then there will be room for this question; because that objection and doubt of yours necessarily follows upon the arguments of these scholars. Now let me state these arguments, which may perhaps help in better understanding this objection and the weak point that exists in this position.

Arguments for the Third Position

The main point is to determine what the argument is for this matter; why is the contract valid while the dower is invalid? Perhaps we can mention several arguments for this position here.

First Argument

Shaykh al-Anṣārī has stated: the contract that has been performatively constituted dissolves into two matters (yanḥall ilā amrayn). We have two things here: one is the marrying-off, and the other is the dower. With respect to the marrying-off, there is no problem whatsoever; the supposition is that this marrying-off has been founded upon the absence of corruption, and the guardian has taken this point into consideration in this marrying-off. Therefore, this presents no problem. But with respect to the dower, we have a problem; this is harmful to the husband; if a son has been married off for more than the customary dower, this is harmful to the husband, and therefore we regard the dower specifically as problematic; the marrying-off itself has no problem. Since these are two independent matters, we can rule the validity of the contract while regarding the dower as invalid. It is true that, outwardly, this is a single performative utterance, but it is, in effect, equivalent to two performative utterances; this belongs to the category of multiplicity of object sought (taʿaddud al-maṭlūb)—that is, there are two objects sought here: one object sought is the basic marrying-off, and the other object sought is the dower. If one object sought encounters a problem, should we then say that the other object sought, too, has not been realized? Therefore, the matter is contingent upon whether we regard the contract and the dower as a single thing, belonging to the category of qualifying condition and qualified thing, and unity of object sought, or as belonging to the category of multiplicity of object sought. Because the object sought in this contract is multiple, we can say that, with respect to the dower, this dower is invalid, but with respect to the contract, there is no problem. This does not belong to the category of qualifying condition and qualified thing; therefore, the dissolution of these two presents no obstacle whatsoever; this is like the sale of that which can be owned together with that which cannot be owned. Common usage (ʿurf) regards this as equivalent to two performative utterances and two objects sought, and this alone suffices for ruling the validity of the contract and the invalidity of the dower. This is the most important argument for the third position.

Examination of the First Argument

As has been stated, the only objection directed against this position is as follows:

First Objection

These constitute a single object sought; the marrying-off and the dower belong to the category of qualified thing and qualifying condition, and, since the object sought is single, the corruption of one results in the corruption of the other as well. Idhā intafā al-qayd, intafā al-muqayyad—when the qualifying condition is negated, the qualified thing is negated as well; when the dower is invalid, the contract necessarily becomes invalid as well.

Second Objection

At the very least, we doubt whether the object sought here is single or multiple. If the object sought is single, this contract is corrupt; if the object sought is multiple, this contract is valid and the dower is invalid. In the case of doubt between multiplicity of object sought and unity of object sought, the presumption of invalidity (aṣālat al-fasād) is determinative. If it is unity of object sought, this contract is corrupt; if it is multiplicity of object sought, this contract is valid; therefore, we are in doubt regarding the validity and corruption of this contract, and, in the case of doubt regarding validity and corruption, the presumption of invalidity rules the contract corrupt. This is the objection that has been raised regarding this position.

Examination of the First Objection

Let us now determine whether this objection is sound with respect to this argument or not. It appears that, with respect to this matter, we can separate these two from one another; it is true that the form of this contract is a single contract—outwardly, it is a single performative utterance—but it has the capacity for dissolution into two objects sought and two performative utterances. What do rational agents (ʿuqalāʾ) do in such cases? They say: you are not in agreement with the dower; we shall change the dower; it is not the case that, if the dower is not acceptable, they would say that the contract too is nothing. According to customary understanding (fahm ʿurfī), these do not belong to the category of qualifying condition and qualified thing; because the supposition is that, in the contract, the matter of the absence of corruption or benefit has been observed; the corruption and harm exist only in the dower. The very fact that we can separate the benefit and corruption in the contract from the benefit and corruption in the dower indicates multiplicity of object sought. The supposition is that there is no corruption in the basic marrying-off; the corruption exists only in this [dower]. Therefore, the separation of these two corruptions, or these two benefits, corroborates [the view] that these do not belong to the category of qualifying condition and qualified thing. It is not the case that we must say: necessarily and unavoidably, now that this dower has a problem and is corrupt, the contract too must be corrupt.

Examination of the Second Objection

As for the presumption of invalidity: this applies only in a case where we doubt the validity or corruption of the contract, and that, too, is grounded upon the absence or presence of multiplicity of object sought. When we clearly state that the object sought is multiple, and that the possibility of separating the two objects sought exists, there is no longer occasion for recourse to the presumption of invalidity. This discussion has a continuation, which we shall present in the next session.