Issue 8, Examination of the Five Suppositions, Examination of the Third Supposition

Session Forty-Four

Issue 8 – Examination of the Five Suppositions – Examination of the Third Supposition – Second Position: Examination of the Establishment of the Option for the Guardian – Argument for the Option and Its Examination – Examination of the Fourth Supposition

January 12, 2026

Summary of the Previous Session

In the third of the five suppositions of the eighth issue, the discussion comprises two positions; the first position is the examination of the establishment of the option for the ward. Our supposition in this case is that the guardian has knowledge of the defect and, on the basis of a binding benefit, has married off the person to another who is defective, but the defect is among the defects permitting rescission. We stated that, concerning the ward, three arguments have been mentioned for the establishment of the option; some of these arguments (especially the third argument) indicate the establishment of the option for the ward. The argument for the non-establishment of the option was also subjected to objection; the result was that the ward has the option, although some of the friends have not yet accepted this and still insist upon the non-establishment of the option.

Second Position: Examination of the Establishment of the Option for the Guardian

The second position is the establishment of the option for the guardian; whether the guardian has the option in this supposition or not. The apparent meaning of the text of Taḥrīr is that the guardian does not have the option. However, as we have also stated previously, the late Sayyid has mentioned the possibility of the establishment of the option for the guardian. The depiction of the issue is whether the guardian can rescind this marriage before the maturity of the ward or not. Because, according to the result of the discussion in the first position, the ward himself has the option; that is, when he reaches maturity, the discretion is his; he can ratify the marriage or he can rescind it. Therefore, if the discussion of the establishment of the option for the guardian is raised, it pertains to the period prior to the maturity of the ward. That is, before the ward reaches maturity, can the guardian rescind this marriage or not?

Argument for the Option

The argument for the option for the guardian, according to what the late Sayyid has mentioned in the text of al-ʿUrwah, is this: “securing the right that belongs to the ward” (istīfāʾ mā li-l-mawlā ʿalayhi min al-ḥaqq); that the guardian wishes to secure the right that the ward possesses. The meaning of the guardian securing the ward’s right is that, from the very beginning, he has had the right to make decisions regarding the ward; to secure his rights; financial rights, non-financial rights, and all that is recognized as a right for the ward can be secured by the guardian, and this right is established for the guardian. The ward himself does not possess such a right until the time of maturity; he himself cannot secure his own rights. One of the rights established for the ward is the right to dissolve this contract; the right to wish to dissolve the contract and marriage with the defective person. Therefore, since the guardian’s duty is to secure the right of the ward, and this, too, is counted as a right for him, he can thus dissolve this marriage for the purpose of securing the ward’s right. This is the argument that has been mentioned for the establishment of the option for the guardian.

Examination of the Argument

However, it appears that this argument is not acceptable; because the guardian, by the requirement of the evidences for guardianship, possesses guardianship within a certain limit. Therefore, with respect to some matters, he does not have this right. In other words, his guardianship is not general and absolute. For example, the guardian can marry off the ward, but on the condition of the absence of detriment (mafsadah); his guardianship is not so extensive that he could marry the ward off to another even in the presence of detriment. Or, for instance, the guardian does not have the right of divorce; despite having guardianship, he cannot divorce on behalf of the ward; even in a case where he himself had undertaken the marriage. That is, he himself married someone off to another, and there was benefit [in it], and he exerted his effort, and its apparent state was that it had no problem; now, later, for certain reasons, he has regretted it and wishes to dissolve this marriage and grant a divorce; here he does not have the right of divorce. He must wait until the ward reaches maturity, and then, if the ward wishes, he may divorce. Therefore, it is not the case that this right is without any condition or restriction. Here, too, the supposition is that the guardian has married the ward off to a person who is defective. This contract is also valid, because it occurred on the basis of benefit. However, because it possesses a defect permitting rescission, they have established an option of rescission for the ward. He can, after maturity, dissolve this marriage or ratify it. But as to the guardian being able to dissolve this contract before maturity, this does not fall within the scope of the evidences for guardianship. Therefore, it cannot establish the option for the guardian. To put it differently, it is true that the guardian can secure the ward’s right, but these rights and that scope within which the guardian can act to secure the ward’s rights do not possess universality. Therefore, we cannot say that the option is established for the guardian in this case.

Question:
Professor: Because the guardian has undertaken the marriage of the ward to a defective person; a binding benefit also existed; therefore, relative to the action the guardian has performed, this is counted as a binding contract. The marriage contract is a binding contract; he was also permitted to execute this contract, had guardianship for this act, and benefit also existed; up to here, his guardianship over marrying [the ward] off to another, even if defective, due to the absence of detriment, is definitive. How can this existing binding contract be dissolved? We must, after the occurrence of this contract, find an argument for the contract’s departure from bindingness, or for its invalidity; or we must say from the very beginning that this contract was not executed validly, because he did not have guardianship. This is not the case; after all, the guardian had guardianship and this contract was executed; the underlying cause (muqtaḑī) is present and the impediment (māniʿ) is absent; so on what basis should we dissolve this contract? Yes, in one case, the unqualified scope of the evidences for the option regarding defects permitting rescission gives this right to the ward to be able to dissolve it after maturity; in other than that case, we have no argument that this contract possesses the capability of rescission. It is a binding contract requiring fulfillment that has been performed by the guardian. Let me provide a parallel; if the guardian sells something on behalf of this person, a binding sale has occurred here; if there is neither deception (ghabn) nor defect, the option is not established, and this contract is binding in fulfillment. If there is defect and deception, there he can perform this act in order to secure the right of the ward. Because this option exists within that contract itself, unlike the marriage contract. In the marriage contract, such an option is not established. If it is contrary to the rule, he cannot perform this act; the defects permitting rescission establish the right of the option for this person and for the ward, according to the evidences for the option. But the guardian, who acted with knowledge of the defect, is not encompassed by the evidences for the option; the evidences for the option do not give him this right at all, and certainly do not encompass him. You say that the right of the ward, which he wishes to exercise later, should be exercised now? We say no; this right has been established for him [the ward] himself; his guardianship does not extend that far, that we should give something that lies within his [the ward’s] domain of competence after maturity to this person [the guardian] now. Therefore, the option is not established for the guardian.

Question:
Professor: That is a different discussion and falls outside this supposition; the matter of discovering the contrary (kashf al-khilāf) is another discussion. Even in the case of a non-defective person, this discussion is raised. If the contrary is discovered later, there, even if it has no defect, he has undertaken a marriage, exerted his full effort, and there was benefit [in it]; now he has realized he was duped. Here he must see whether this problem he faces permits rescission or not; sometimes it is bad morals and foul language, concerning which we stated that in this case neither the guardian nor the ward has the option. Sometimes it is a defect permitting rescission; among the defects permitting rescission, this is situated within the supposition of ignorance. Right now, we are saying he has performed this act with knowledge of the defect; what you are saying falls outside the third supposition.

Fourth Supposition

The fourth supposition is where the guardian is ignorant of the defect; he does not know the defect exists, and in his own assumption there is benefit, and he has married [the ward] off, only he did not know it had a defect. In this case, the Imam (may he rest in peace) has stated: “Otherwise, there is reflection and hesitation in it, although validity is not improbable, provided he exerted his effort in ascertaining the benefit; and upon [the assumption of] validity, he has the option concerning the defects that necessitate rescission, just as the ward has it after the lifting of interdiction from him.” The Imam stated prior to this: “All of this is in the case of the guardian’s knowledge of the defect; otherwise, there is reflection and hesitation in it”; meaning, if he did not have knowledge of the defect, but the supposition is that in his assumption it was beneficial, and he exerted his effort to ascertain the benefit; and the defect, too, is among the defects necessitating rescission. The fifth supposition is precisely this case, except that the defect is not among the defects necessitating rescission.
The Imam (may he rest in peace) states in the fourth supposition: “there is reflection and hesitation in it”; meaning, from one perspective we can say this contract is valid, and from another perspective we can say this contract is not valid. Although it is not improbable that we rule it valid, provided he has made the endeavor and effort to ascertain the benefit. Why should we say it is valid? All the pillars, components, and conditions for the validity of the contract are present; firstly, the guardian had the discretion to marry [the ward] off; he had the right to marry the ward off to another. Secondly, he exerted his effort and, in his assumption, benefit exists. Thirdly, according to outward appearances, there was no defect, problem, or flaw; why should we say it is invalid? “Fulfill the contracts” (awfū bi-l-ʿuqūd) and the evidences for guardianship, all of these require validity; the only problem is the existence of the defect, of which he was also unaware. Thus, this contract is valid. At times we might say this contract is invalid—that is beside the point; but if we say this contract is valid, the question is whether the option is established for the guardian here or not? He states: “and upon [the assumption of] validity, he has the option concerning the defects that necessitate rescission”; if this is so, he has the option regarding the defects that necessitate rescission. Here, the evidences for the option establish the option for the guardian. Because the evidences for the option concerning marriage state that if someone directly undertakes the contract and is ignorant of the defect, he has the right to dissolve the transaction. The guardian, too, as the substitute for the ward, has married him off, and this action of his was valid; however, since he was ignorant of the defect, those very same evidences for the option give this right to the guardian to dissolve this contract.

Question:
Professor: The option is established for the guardian on the grounds that he is the substitute for the ward… the contract that the guardian executed… There, the guardian had knowledge of the defect; in the third supposition, the guardian has knowledge of the defect, and the evidences for the option do not grant this right; it states that the option is established for one who is ignorant. The guardian had knowledge, on what basis should the option be established for him? In the fourth supposition, the assumption is that the guardian, too, does not know; naturally, the evidences for guardianship give him this right to marry [the ward] off, and he has married him off; the conditions and benefit were present; only he was not aware of this defect. That valid marriage contract… assuming we consider it valid, by the requirement of the evidences for the option, establishes the option for the guardian who does not have knowledge of the defect. What problem does this have? This is exactly within the framework of the rule. … The ignorance of the ward necessitated that the option be established for the ward; but for the guardian, we stated it is not established, because he had knowledge. But here, the guardian himself is also ignorant. … If the guardian sells a property of the ward, while he does not know that deception exists, does not know that it has a defect; does it establish the option for the guardian there or not? It is the same here. … We stated right there that if the guardian undertakes a transaction with knowledge of the defect… in transactions, a deep-rooted conventional condition exists, but in marriage it is not so; there, the right is established on the basis of a deep-rooted conventional condition, but in the chapter of marriage this deep-rooted conventional condition does not exist; the option is established by the Lawgiver’s enactment, and is set aside by the Lawgiver’s negation. Therefore, if the guardian undertakes the marriage in ignorance, and later realizes that there is a defect, he has the right of rescission; because the evidences for the option encompass this supposition. … We explicitly say the guardian’s knowledge and ignorance have an effect; but as for the ward, as long as he has not reached maturity, his knowledge and ignorance are identical. This is the difference between the guardian and the ward. If the guardian knows, he has no right of rescission, but if the guardian does not know, he has the right of rescission. What about the ward? For the ward, until the time of maturity, whether he knows or does not know makes no difference whatsoever; because he possesses no power and cannot perform any act.
The Imam continues, stating: “just as the ward has it after the lifting of interdiction from him”; if the guardian did not utilize this right and did not exercise the option, does the ward have the option after the lifting of interdiction (one instance of which is minority of age) or not? Yes, he has the option here. In a case where the guardian had knowledge, the option was established for the ward; here it is established a fortiori.

Discussion for the Next Session

“And in other than these, there is no option for him, nor for the guardian, according to the stronger view”; the fifth supposition is where the guardian is ignorant of the defect, and there was benefit, and the defect is not among the defects permitting rescission; in this case he states, “And in other than these, there is no option for him, nor for the guardian, according to the stronger view”. Opposing “according to the stronger view” (ʿalā al-aqwā), there is another view which we must also examine.