Issue 10, Precise Determination of the Subject Matter of the Discussion, Positions, First Position

Session Fifty-One

Issue 10 – Precise Determination of the Subject Matter of the Discussion – Positions – First Position: The Non-Establishment of Guardianship in an Unqualified Manner – Second Position: The Establishment of Guardianship in an Unqualified Manner – Third Position: Differentiation – 1. First Differentiation – 2. Second Differentiation

February 1, 2026

Summary of the Previous Session

In the tenth issue, the discussion concerned whether the executor — that is, one who has been appointed as custodian on behalf of the father or paternal grandfather — has guardianship over the marriage of the minor boy and minor girl, or not; whether he can marry off the minor boy and minor girl to another, or not. We stated several points regarding the statement of the late Sayyid in al-ʿUrwah and the differences this statement has with the text of Taḥrīr, and we also read the annotations that have been written in connection with the statement of al-ʿUrwah.

Precise Determination of the Subject Matter of the Discussion

In any case, the subject matter of the discussion is a case in which the guardian (whether father or paternal grandfather) has appointed a person as executor; can he marry off the minor boy or minor girl to another, or not? The executor can be conceived in several forms — in other words, the types of executor and executorship differ. We can conceive of four kinds or four types of executorship here. First kind: one kind of executorship is that the person is appointed as executor only for financial matters — that is, the scope of his executorship has been clearly determined, and he has been told from the outset that he is an executor for financial matters and can undertake these affairs. Second kind: this is one in which the executor has been appointed in an unqualified manner — that is, no mention whatsoever has been made of financial matters; rather, it has simply been stated, in a general and unqualified manner, that he is the executor. Third kind: this is one in which he has been appointed as executor specifically for matters pertaining to marriage. Fourth kind: this is one in which the testamentary disposition has been made with respect to specific non-financial matters. If we count this, we can conceive of four kinds and four types of testamentary disposition for the testator. Thus, one kind of testamentary disposition is one in which he has made a testamentary disposition regarding a specific action, such as the performance of prayer or the performance of the pilgrimage (ḥajj), which bears no relation whatsoever to the matter of marrying-off. The second kind is a testamentary disposition with respect to financial matters; financial matters are not like the performance of the pilgrimage or prayer; after all, from one angle, this can bear some relation to marriage and marrying-off, but, at the same time, the matter of marrying-off has not been explicitly raised; however, given that marriage and marrying-off, too, are intertwined with financial matters, a connection can be created. The third kind is one in which he has appointed him as his executor in an unqualified manner, or, for example, has made a testamentary disposition to him regarding the bulk of his affairs; but he has made no mention whatsoever of marriage, and has, in a general manner, entrusted to him the bulk of his affairs, or all of them. The fourth kind is one in which he makes a testamentary disposition specifically with respect to marriage, and states: I am concerned, and I entrust to you, by testamentary disposition, the matter of my child’s marrying-off. These are the four kinds of testamentary disposition, or the suppositions that we can conceive for testamentary disposition, with respect to whether or not it addresses the matter of marriage. The jurists and the statements in the books of jurisprudence differ as to whether the executor has guardianship over the marriage of the minor boy or minor girl, in light of these kinds — that is, it is not very clear which of these kinds they have had in view when accepting or rejecting the guardianship of the executor. Before we wish to state the positions of the jurists — some of whom have accepted the guardianship of the executor, and some of whom have rejected it, or some of whom have differentiated — we shall also address the very suppositions that have been subject to negation and affirmation; because this, too, is a matter of discussion — namely, which supposition has been accepted, and which supposition negates the guardianship of the executor in the matter of marriage? This itself is a matter of discussion; of course, certain instances are not a matter of discussion. If the executor has been appointed as executor only with respect to matters such as prayer, fasting, and pilgrimage, which bear no relation whatsoever to the matter of marriage, it is nearly a matter of agreement that the executorship does not encompass the matter of marriage and marrying-off; nearly everyone accepts this. Because the very subject matter of the executorship bears no relation, neither direct nor indirect, and therefore we cannot derive guardianship in marrying-off [from it]. Therefore, the first kind, in a certain sense, falls outside the scope of discussion and dispute. There is also one kind whose status, according to some, is clear — namely, what the late Sayyid stated, “but on the condition of the explicit statement of the testator”; what does this mean? This alludes to an important matter — namely, that, if the executor states explicitly, or if his statement carries an apparent indication that the executor has guardianship over the marrying-off of the minor boy and minor girl, his guardianship is established. But if this is not so, his guardianship is not established. This indicates that, even according to some, if the testator states this explicitly, or if his statement carries an apparent indication of this matter, guardianship is still not established. Therefore, we cannot say that this kind is a matter of agreement — namely, that the executor has guardianship; that is, even where he states explicitly the guardianship in the matter of marriage, it is not the case that everyone accepts that the executorship is established there. When we state the positions, it will become clear that some have negated the guardianship of the executor in an unqualified manner, whether he has stated it explicitly or not. Therefore, pay close attention that the subject matter of the discussion and dispute as to whether the executor has guardianship over the marrying-off of the minor, or not, in a certain sense, encompasses all the suppositions of executorship — whether he has made an explicit statement regarding this or not; whether he has left it unqualified, or whether the executorship pertains only to financial matters — all of these are matters of discussion. Therefore, nearly all, or most, of the kinds and types of executorship fall within the scope of the dispute; the dispute is whether one who has been appointed by the guardian as custodian with respect to the minor boy and minor girl also has guardianship in the matter of marriage and marrying-off, or not. The positions here differ; we can mention at least three positions.

Positions

First Position: The Non-Establishment of Guardianship in an Unqualified Manner

One position is the position of the non-establishment of guardianship in an unqualified manner — that is, such a testamentary disposition is not effective. If the guardian appoints someone as custodian who has discretion and guardianship in the matter of marriage, this testamentary disposition is not acceptable in an unqualified manner. Those who have accepted the non-establishment of the guardianship of the executor over marrying-off are a group of jurists — among them, Shaykh al-Ṭūsī, in al-Mabsūṭ; Muḥaqqiq al-Ḥillī, in al-Sharāʾiʿ; ʿAllāmah, in most of his own books — both al-Qawāʿid, al-Taḥrīr, and al-Tabṣirah — in six or seven books, he has held to this position. Shahīd al-Awwal, in al-Lumʿah; Kashf al-Lithām; the late Narāqī, in al-Mustanad — these are those who have held to the non-establishment of guardianship in an unqualified manner. Now, the meaning of “unqualified” becomes clear in light of the differentiation that some have raised.

Second Position: The Establishment of Guardianship in an Unqualified Manner

The second position is the position that such guardianship is established — that is, they have held to the guardianship of the executor in the matter of marriage in an unqualified manner. This is precisely the opposite of the first position. Shaykh al-Ṭūsī, in the book al-Khilāf (Shaykh al-Ṭūsī holds one view in al-Mabsūṭ and a different view in al-Khilāf); ʿAllāmah, in the book al-Mukhtalif (he held to the non-establishment of guardianship in most of his books); Shahīd al-Awwal, in Ghāyat al-Murād; Muḥaqqiq al-Karakī, in Jāmiʿ al-Maqāṣid; Shahīd al-Thānī, in Sharḥ al-Lumʿah and Masālik. Likewise, the author of Madārik, in Nihāyat al-Marām; al-Muḥaddith al-Baḥrānī, in al-Ḥadāʾiq; the author of Jawāhir. A large group, too, has held to the establishment of guardianship.

Third Position: Differentiation

A third group has differentiated on this matter. The differentiation has been transmitted in several forms.

1. First Differentiation

The differentiation that is mentioned in certain statements is a differentiation between a supposition in which the testator has stated (whether explicitly or by apparent indication) — and his statement carries an indication — that the executor has guardianship in the matter of marriage. Among these, the late Narāqī, in al-Mustanad, has transmitted this; he has attributed this view to al-Khilāf, to Muḥaqqiq al-Karakī, and to certain others. In any case, one differentiation is that, if the testator has stated, in some manner, or has explicitly stated, that the executor has guardianship in the matter of marrying-off and marriage, then, in this case, guardianship is established. But if he has not stated this — neither explicitly, nor does his statement carry an apparent indication of this matter — then, in this case, his guardianship is not established. This is a differentiation that some have stated. Of course, this very same conclusion is also derived from the statement of the late Sayyid; he stated, “but on the condition of the explicit statement of the testator.”

2. Second Differentiation

If we also take into consideration that other condition which the late Sayyid has mentioned, a further differentiation becomes possible in light of that condition, namely a differentiation between need and necessity for marriage and otherwise. If we regard that as a condition, as some regard it as a condition with respect to the insane person, then the result becomes that the guardianship of the executor is established in a case where the person is in need of marriage, or where marriage is necessary for him and he has reached a state of necessity with respect to it; but if he has not reached this stage, the guardianship of the executor is not established. On this basis, we can offer a differentiation. Of course, this differentiation apparently has no proponent, and we have no one who has stated such a differentiation; but, as I have indicated, it is not improbable that this is derived from the statement of some, such as the late Sayyid — namely, that guardianship is established in a case of necessity. I have stated that there is no specific proponent for this position. In any case, these positions exist on the matter; arguments have been stated for these positions. We must state these arguments. Those, too, who have not accepted the guardianship of the executor in the matter of marriage are themselves of two groups: one group has issued a definitive ruling that such guardianship is not established; but many have exercised obligatory precaution, such as the Imam (may God’s mercy be upon him). He has not issued a definitive ruling that the executor has no guardianship over the marrying-off of the minor boy and minor girl; rather, he states, “there is a problem in this; the precaution should not be abandoned” — he has exercised obligatory precaution that this guardianship is not established. In the end, some have issued a definitive ruling, and some have exercised precaution; here we must determine why the Imam has exercised precaution here and has not issued a definitive ruling, and why he has not stated, as many have, that such guardianship is not established for the executor; we shall address this later.

Question:

Professor: This very basic point is itself a matter; the primary general rule is the non-establishment of guardianship. Guardianship requires an argument; we shall address this later.

Discussion for the Next Session

“And the guardianship of the executor over marrying-off has been argued for on the basis of certain matters, among them the Book [of God]”; certain verses of the Qurʾān have been invoked for guardianship, as well as certain traditions. Two verses of the Qurʾān have been invoked as arguments; one is verses 180 to 182 of Sūrat al-Baqarah, and we must state the approach to the argument from this verse, the objection raised against it, and the responses that have been given. The second verse is verse 220 of Sūrat al-Baqarah. These two verses have been invoked for guardianship; certain traditions have also been invoked thereafter. The argument from these verses and traditions, and the examination of this argument, we shall present in the next session.