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

Session Forty-Five

Issue 8 – Examination of the Five Suppositions – Examination of the Third Supposition – Examination of the Fifth Supposition – Statement of the Late Sayyid – View of the Commentators on al-ʿUrwah – Views – Argument for the First View – Argument for the Second View and Its Examination – Examination of the Possibility of the Contract Being Unauthorized

January 18, 2026

Summary of the Previous Session

We stated that in the eighth issue, five suppositions have been raised, the axis of which is that the guardian marries the ward off to someone who possesses a defect. We mentioned the various suppositions of this matter; the rulings of four suppositions along with their documentary evidences were stated.

Examination of the Fifth Supposition

The last supposition that has been raised is that the guardian is ignorant of the defect, and in his view, benefit also existed in this marriage, and the defect is among the defects that do not permit rescission. The final phrase of Taḥrīr pertains to the fifth supposition: “And in other than these, there is no option for him, nor for the guardian, according to the stronger view”; meaning, in other than the defects necessitating rescission, neither the guardian has the option nor the ward; they have issued a fatwa that this option is not established for either of these two persons.
In opposition to this view, another view has been mentioned, which is that the option is not established for the guardian, but it is established for the ward.

Statement of the Late Sayyid

The late Sayyid has indicated this view in al-ʿUrwah and has himself adopted this view. The statement of the late Sayyid in al-ʿUrwah is this: “And if it is among the other defects”; the supposition of the issue is a case where the guardian is ignorant of the defect, and benefit also existed in the contract and marriage, but the defect is among the defects that do not necessitate rescission; now, after the contract, the guardian has become aware of this defect. “There is no option for the guardian, and regarding its establishment for the ward and its non-establishment, there are two facets”; the guardian has no option, but as to whether the ward has the option or not, two facets exist; “the more plausible of the two (awjahuhumā) is that [it is established]”, meaning the option is established. The late Sayyid has mentioned an argument in this phrase, and has even turned away (iḍrāb) from it afterward: “because it discovers the absence of benefit in that marriage”; when he acquires knowledge of the defect and it is discovered that the person possesses a defect, this is a discoverer (kāshif) of the fact that there was no benefit in this marriage; therefore, the option must be established. “Rather, it might be said that the contract is unauthorized at that time”; rather, it is possible to say that this contract is unauthorized (fuḍūlī); “at that time” means at the time of the discovery of the defect and the discovery of the absence of benefit; “not that it is valid and he has the option”; not that this contract is valid and the option is established for the ward.

View of the Commentators

The commentators (muḥashshīn) have raised objections to both claims of the late Sayyid; he has made two claims:
First, that the ward has the option in this supposition.
Second, that the issue of the option is not raised here, but rather it is of the category of an unauthorized contract; as though a stranger had married him off; if he wishes, he can ratify this contract, and if he wishes, he can reject it.
Most of the commentators have objected, especially to the first claim of the late Sayyid, including:

1. The Imam (may he rest in peace), in an annotation (taʿlīqah) appended to this very statement of the Sayyid where he stated “the more plausible of the two is that”, states: “the greater plausibility of non-establishment is not improbable”; it is not improbable to say that non-establishment is more plausible; meaning the non-establishment of the option for the ward; “if the guardian exerted his effort in ascertaining the benefit, and the discovery of the absence of benefit has no effect”; provided the guardian exerted his full effort to ascertain the benefit, why should we say the option is established here? Regarding the late Sayyid’s statement that after the defects are discovered, it becomes known that this marriage had no benefit, he [the Imam] states this has no effect on this marriage; because everything in this marriage is based on the valid conditions, the underlying cause for validity exists within it, and the defect is not among those defects that establish the option of rescission for the ward; therefore, if the [absence of] benefit is discovered, it has no effect whatsoever.

2. The late Mr. Borujerdi has also stated almost this very thing: “Rather, the more plausible of the two is non-establishment, assuming the valid occurrence of the contract”; if we say this contract is valid, why should the option be established for the ward?

3. The late Mr. Khoei has also raised this very objection: “There is an objection to it, rather a prohibition”. Of course, he has another annotation which contains an argument for this, which we shall address later on.

Views

In any case, two views exist in this issue; the supposition of the issue is a case where the guardian has married the ward off to someone who possesses a defect, he did not have knowledge of the defect, benefit also existed, and later it became known that the person has a defect; however, the defect is not of the category of defects permitting rescission.
First view: The Imam and many are of the belief that here neither the guardian has the option nor the ward.
Second view: The late Sayyid has stated “the more plausible of the two is that”, meaning the ward has the option.
Concerning the guardian, absolutely everyone is in agreement that the guardian has no option; because the guardian has married [the ward] off on the basis of benefit (ʿan maṣlaḥah), and the defect is not among the defects necessitating rescission; when the underlying cause for the validity and bindingness of the contract is present and there is no impediment to it, then this contract is valid and binding. Why should the guardian have the option? What is the source of the guardian’s option? We see no argument whatsoever for the establishment of the option for the guardian. Therefore, there is no discussion regarding the non-establishment of the guardian’s option.
According to the view of the author of the text (may he rest in peace), the option is not established for the ward. What is the argument for the non-establishment of the option for the ward? Almost the very same argument that was stated for the guardian establishes this same thing for the ward.

Argument for the First View

Firstly, the guardian, through the avenue of guardianship, had the discretion to marry [him] off; the guardian was able to marry him off, therefore, the contract he executed has no problem on the basis of guardianship. Because benefit also existed within it; the supposition is that the guardian married the ward off to another upon ascertaining the benefit. So, from this aspect too, it has no problem.
Secondly, regarding the defect, it is true that he was unaware of the defect, but the defect is not among the defects necessitating rescission; had the defect been among the defects that necessitate rescission, as we stated in the fourth supposition, the option would be established for the ward; because, opposite the unqualified scope of the evidences for marriage, we also had the evidences for the option. We stated how, by means of the evidences for the option, in cases of a defect permitting rescission, the option is established. However, this does not exist here; meaning, the defect is not among the defects necessitating rescission. So on what argument should the option be established for the ward? A contract has been executed validly, benefit existed within it at the time of the contract, and the defect that has been discovered does not necessitate rescission, and therefore the option of rescission is not established; so why should we establish the option for the ward here? Suppose the ward himself performed this act directly, without the involvement of the guardian; if he executed the contract himself and encountered a defect that does not necessitate the option of rescission, would the option be established there? No. It is the same here; so why should the option be established?

Argument for the Second View

In opposition, the late Sayyid has adhered to the establishment of the option. In the text of al-ʿUrwah, he has indicated the argument for it, stating: when the defect becomes apparent, this discovers the absence of benefit. It is true that this defect is not among the defects necessitating rescission, therefore the option is not established for the ward from this aspect; but when he was unaware of a defect and it later became apparent, this discovers that this marriage had no benefit. Therefore, the option is established; if he wishes, he can continue with this defect, and if he does not wish, he can dissolve the contract. The cause or argument for the establishment of the option for the ward is that when the defect is discovered, this discovers that this marriage does not possess benefit; from this point forward, it is upon the ward himself; he can ratify it or reject it.

Examination of the Argument for the Second View

This argument is subject to objection; the late Sayyid’s statement “because it discovers the absence of benefit” entails that the contract faces a fundamental problem, and we cannot rule the contract valid. Because here there are two states: either this contract has benefit or it does not. If we say that knowledge of the defect and the appearance of the defects discover the absence of benefit, we must rule here on the non-validity of the contract; whereas our supposition in the fifth case is that this benefit existed. We say the guardian, on the basis of benefit, has married the ward off to, for example, an ill-tempered person; at that time, he did not know that this person is ill-tempered; now it has become known that he is ill-tempered. Now, if this defect, which does not necessitate rescission, were to discover the absence of benefit (ʿan ʿadam al-maṣlaḥah), here you must say this contract was not executed validly; because the guardian’s marrying [the ward] off is valid only in the case of benefit, or at least the absence of detriment (ʿadam al-mafsadah). If the marriage entails detriment, this contract is not valid; and therefore the option is no longer meaningful, and you must say it is not valid (lam yaṣiḥḥ). And if you say there was benefit, why should the option be established? Benefit existed, and the rest of the conditions are also present, so the underlying cause is present and the impediment is absent; therefore, one must rule for the non-establishment of the option.
Thus, the argument that the late Sayyid has mentioned in this supposition is not acceptable. This is precisely why the Imam (may he rest in peace) has stated in the text of Taḥrīr: “And in other than these, there is no option for him, nor for the guardian, according to the stronger view”; in contrast to the late Sayyid, to whom most commentators have raised objections, including the Imam (may he rest in peace) himself.

Question:
Professor: These are two issues; one is the existence of benefit—whether benefit is a condition or not; and the other is the absence of detriment. … When he states “it discovers the absence of benefit”, what is meant by the absence of benefit is the existence of detriment; the matter that is definitive regarding the marriage [undertaken] by the guardian is that there must not be detriment; everyone has stated this. But is observing benefit also necessary or not? They stated that it is best (aḥsan) or more precautionary (aḥwaṭ) that it be observed. Here, where the late Sayyid states “because it discovers the absence of benefit”, he is in fact pointing to the existence of detriment; meaning, this discovers that this contract had a detriment, or even if it means that—meaning they refer to something higher than the issue of the absence of detriment, because they exercised precaution there—still, this argument is in any case subject to objection. …

Question:
Professor: The actual benefit is entirely unknown; in these cases where benefit and detriment are mentioned, and some matters are relegated to them, we must interpret them according to that customary meaning (ʿurfī); meaning, what is counted as benefit according to custom, or what is counted as detriment according to custom… The Imam has annotated thus: “if the guardian exerted his effort in ascertaining the benefit”, meaning he has exerted all his effort and investigated to ensure this person is good and has no defect; bad morals and foul language are not among the defects permitting rescission, and they are manifest and clear matters; meaning, after all, everyone considers foul language and bad morals to be bad. It is not that it was a defect that in the guardian’s view was not a defect, but in the people’s view is a defect; no. These defects are largely known. The guardian asked everyone, and they said this person is polite and does not have foul language; however, he possessed this trait and no one knew it. When he says it discovers the absence of benefit, it means if he had known at that time, he would not have done this; now that he has understood… we stated that the option is not established for him; the ward… We must examine these matters on the basis of the rules and criteria. What do the rule and criterion require? They say this contract was legitimate, the guardian had authorization, and benefit was also taken into consideration. Now that he has realized there is a defect, does this discover the absence of benefit? We say, very well, why do you say “option”? Say the contract is invalid. You say this discovers the absence of benefit; we stated from the very beginning that the marriage the guardian undertakes is not valid if it has detriment. Therefore, this argument of his is not acceptable.

Examination of the Possibility of the Contract Being Unauthorized

The late Sayyid continues, stating: “Rather, it might be said that the contract is unauthorized at that time, not that it is valid and he has the option”; rather, let us say it is like an unauthorized contract. If the ward permits the unauthorized contract, it is established and valid; but if he rejects it, it is dissolved. Muḥaqqiq al-ʿIrāqī has an annotation here; he states: “Rather, there is no escape from it, as is apparent”; there is no alternative to this; meaning he rejects the previous supposition and says it makes no sense to say the ward has the option. The only thing we can depict here is that this is of the category of an unauthorized contract; the grandfather married him off to a person who had a defect and he did not know; now it has become known that he has a defect, and the defect is not among the defects permitting rescission. If someone says this is a discoverer of the absence of benefit, he must not raise the issue of the option; meaning, he assumes the contract is valid, and now he [the ward] can dissolve it; no, this becomes an unauthorized contract, because it lacks the element of benefit, or in other words, possesses the element of detriment.
In opposition, some have raised an objection; the objection is that this contract is not outside of two states; either it has no detriment (even if it has no benefit, but it has no detriment for the ward) or it possesses detriment. If it has no detriment, it must be ruled valid, without the option being established; neither for the guardian nor for the ward. If it possesses detriment, why should we say it is unauthorized? We must say the contract is invalid; this contract was not within the framework of the guardian’s discretionary powers; why should we say it is an unauthorized contract? He executed a contract and you say there is detriment in it; we established the condition for guardianship and the effectiveness of guardianship from the very beginning as the absence of detriment. We previously made the guardian’s guardianship contingent upon the absence of detriment; did we not previously say that if there is detriment, this contract is invalid and ruled as not valid? Meaning, it is as though the guardian has no guardianship at all within that scope. If we say that unauthorized contracts exist and have a place in the chapter of marriage, we can say that this is like an unauthorized contract; but there is no basis for this. If we made guardianship conditional upon the absence of detriment, it means here he is like a stranger (kāl-ajnabī). If we accepted unauthorized contracts in the chapter of marriage, here too it becomes unauthorized; if we said unauthorized contracts have no place in the chapter of marriage, we must categorically rule for invalidity.

Discussion for the Next Session

God willing, in the next session, we shall begin the ninth issue.