Issue 10, Arguments for the Establishment of Guardianship in an Unqualified Manner, Second Argument

Session Fifty-Four

Issue 10 – Arguments for the Establishment of Guardianship in an Unqualified Manner – Second Argument: Traditions – First Tradition: The Authentic Tradition of Muḥammad ibn Muslim – Approach to the Argument – First, Second, and Third Objections and Their Examination

February 8, 2026

Summary of the Previous Session

The discussion concerned whether the executor can undertake the marrying-off of the minor boy and minor girl, or not; we stated that three positions exist on this matter. The first position is the position of permissibility — that is, the executor, in an unqualified manner, can marry off the minor boy or minor girl, and has guardianship over this matter. Several arguments have been invoked to establish this claim; the first argument was verses, of which two verses were examined. The second argument is traditions; the traditions, too, fall into two categories: one category of traditions has been invoked independently; the second category consists of traditions transmitted in connection with the verse “him in whose hand is the marriage tie.”

Approach to the Argument from the First Tradition

From the first category, we transmitted the tradition of Muḥammad ibn Muslim in the previous session; the tradition was as follows: “From Muḥammad ibn Muslim, from Abū ʿAbd Allāh (peace be upon him), who was asked about a man who appointed another man as executor over his children and over property belonging to them, and gave him permission, at the time of making the bequest, to deal in the property, with the profit being shared between him and them. He said: there is no problem in this, on account of the fact that their father had given him permission for this while he was still alive.” The tradition concerns a bequest regarding a joint-profit partnership (muḑārabah); a person had several children and property, and made a bequest, saying: work with this property, and let its profit be divided between you and them; a question has been asked regarding such an action. The Imam (peace be upon him) said there is no problem. This tradition concerns muḑārabah; it is clear that the subject matter of the tradition is a financial bequest; a financial bequest differs from a bequest regarding marriage and marrying-off. However, in the closing of the tradition, the Imam (peace be upon him) has mentioned a causal explanation (taʿlīl) for the permissibility, stating: “on account of the fact that their father had given him permission for this while he was still alive”; this causal explanation, according to the statement of the late Āyatullāh Khūʾī, has generality, and the requirement of the generality of the causal explanation is that the marrying-off of the minor, too, is permissible; because the Imam (peace be upon him) stated, “that their father had given him permission for this” — because their father had given him permission for this matter while he was alive; and since the father, during his own lifetime, could undertake such an action and had discretion in this matter, then, if he made a bequest for this action, this bequest is effective, and the executor can carry it out. Therefore, the fact that the father, during his lifetime, gave permission for an action that fell within the scope of his own discretion — the generality of this encompasses marriage as well; because the father, while alive, has guardianship to marry off the minor boy and minor girl to another. Therefore, if he also makes a bequest regarding the marrying-off, this right is established for the executor, and the executor can carry out this action. This is the approach to the argument from the tradition; according to the expression of the late Āyatullāh Khūʾī, this is the requirement of the generality of the causal explanation. That is, the cause stated for the permissibility encompasses a bequest regarding marrying-off as well.

Question:

Professor: On what grounds do you say that this has a special restriction? … He states, “on account of the fact that their father had given him permission for this while he was still alive” — their father, while he was alive, gave permission. The apparent sense of this sentence is that, if the father or guardian, while alive, makes a bequest to another regarding that which is within his own discretion, this is effective. Therefore, a number [of scholars], such as the late Āyatullāh Khūʾī, hold that this tradition, by virtue of this very causal explanation that appears in its closing, indicates the effectiveness of a bequest regarding marriage, and that the executor can undertake the marrying-off of the minor boy or minor girl.

Question:

Professor: The subject matter of the tradition is commerce and muḑārabah; yes, there is no doubt that the tradition pertains to muḑārabah, and the Imam (peace be upon him) states that this person gave permission in this matter while he was alive — but what is the cause? Permission while alive; it is true that this subject matter is muḑārabah and commerce, but the subject matter does not restrict [the general application]. Whatever pertains to him and is within his own discretion, if he gives permission for it, is effective.

Question:

Professor: That is a different discussion; it does not say to give it to them; it says to engage in commerce with this property. This presents no problem and has no inconsistency with that whatsoever.

Examination of the First Tradition

Here, two objections have been raised against this argument.

First Objection

The first objection is that it is true that the tradition indicates that, if the father, while alive, gave permission with respect to matters such as muḑārabah and made a bequest regarding this matter — since this property pertained to himself and he had discretion and made the bequest, his bequest is effective; but whether a bequest regarding marrying-off is, in principle, permissible for the father, or not, is itself the point at issue (awwal al-kalām). One might say that a bequest regarding the marrying-off of children is not effective; in other words, a bequest is effective when it concerns financial matters; but that he should make a bequest with respect to marriage, and that this bequest be effective, is not established by this causal explanation. This is an objection that some of our teachers have raised against the argument from this tradition, the gist of which is that the generality of this causal explanation is not such as to encompass the subject matter of our discussion.

Examination of the First Objection

This objection is not sound; because the fact that the father has guardianship over the marrying-off of his minor son or minor daughter is certain, and this falls within the scope of his discretion. This causal explanation, “that their father had given him permission for this while he was still alive,” encompasses this case as well; because the father is alive and living, and he has guardianship over the marrying-off of the minor as well, and, with respect to that in which he had discretion and guardianship, he has also given permission. The reason the Imam (peace be upon him) stated, “there is no problem,” is that the father “had given him permission for this while he was still alive.” Does it here only wish to say “had given permission” in financial matters? It says that whatever is established for him during his lifetime, he can, as it were, give permission for it. Therefore, in this respect, we agree with the late Āyatullāh Khūʾī, and it appears that the generality of the causal explanation can establish the permissibility of the bequest and the effectiveness of the bequest regarding marrying-off.

Question: Professor

: Had it been established externally that a bequest regarding marrying-off is effective, the matter would have been clear and there would have been no discussion; we derive this from this very sentence. “That their father had given him permission for this while he was still alive” — he has asked about one instance, namely a bequest in financial matters and commerce and muḑārabah. It says: why is there no problem? “On account of the fact that their father had given him permission for this while he was still alive” — the father gave permission while he was alive; when, during his lifetime, he has given permission for this action, then there is no problem in this for the executor. Why does the father’s giving permission during his lifetime establish the legitimacy and effectiveness of this action? Because he had this right during his lifetime, and, in that very state, he gave permission for it; that is, the underlying cause exists, and the impediment is absent. Did the father, during his lifetime, have guardianship over marrying-off, or not? … No one here has objected that, because the father has passed away, he therefore has no guardianship; at the time he gave permission, his guardianship was established; he gave permission during his lifetime, and therefore, as it were, this discretion has been transferred to [the executor]. Why should we say this bequest is not effective? On what grounds is his permission effective with respect to financial matters? Has the Imam (peace be upon him) here given a ruling contrary to the general rule? Certainly not; the Imam (peace be upon him) states that, because he had this discretion and right, and gave permission for it during his lifetime, this bequest is therefore effective. This very same criterion is established with respect to marriage as well.

Question:

Professor: This property belonged to him… I have stated that this presents no problem, and no one has objected on this point that this does not indicate the permissibility and effectiveness of a bequest regarding muḑārabah… “appointed another man as executor over his children and over property belonging to them” — he has made a bequest regarding his children, and “belonging to them” — that this property belongs to them; that is, now, and during his lifetime, he makes a bequest that this property be for the children… this has no bearing in this respect; if someone says, “go and do this with my property,” this presents no question at all and is clear. The discussion is whether, for after his own death, regarding this property that he has set aside for them, he has made a bequest, [saying]: engage in commerce with this property, and divide its profit between yourself and them. If it is his own property and he says now, “go and engage in commerce with my property,” this is clear and presents no problem; he has made a bequest regarding this action. That is, for example, he has said: let the affairs of my children be under your supervision; this property belongs to them, but do not think that, because it belongs to them, you must not touch it; you can engage in commerce with this property and take your own profit from it, and also set aside a profit for them. Why did the father give him permission? Because he had this right and held this guardianship for himself; the Imam (peace be upon him) stated there is no problem; “on account of the fact that their father had given him permission for this while he was still alive.” Their father gave permission while he was alive; this alone suffices. We ask: is it not the case that a father who, lahu an yuzawwija waladahu bi-ghayrih (has the right to marry off his child to another), can, during his lifetime, give permission to undertake this action subsequently?

Question:

Professor: In the text of the tradition it states, “appointed another man as executor over his children and over property belonging to them, and gave him permission at the time of the bequest”; this is a different objection, and this is two separate matters.

Second Objection

Here, one might say that the matter of permission for this action — namely, commerce and muḑārabah — is distinct from the bequest; because it states, “gave him permission, at the time of the bequest, to deal in the property”; therefore, this bears no relation to the bequest.

Examination of the Second Objection

The response is that the statement “gave him permission, at the time of the bequest” refers to the content of the bequest, and does not mean that he made a bequest and then, separately, gave permission; this very giving of permission is itself a part of the bequest. It says: when he was making the bequest, he gave him this permission to undertake this action. Therefore, his bequest comprises a certain matter, among which matters is this — namely, that he can work with this property; that is, as it were, the bequest is for muḑārabah. This is not separate from the matter of the bequest; it states one single matter; common usage understands one bequest, and one matter, from this.

Third Objection

Let us grant that we accept the unqualified scope of this tradition; but this unqualified scope is acceptable only with respect to the subject matter of the tradition, and we cannot extend [it] from the subject matter of the tradition to something other than it. Yes, there is unqualified scope in the cause, but its scope is confined to those very financial matters and the bequest regarding muḑārabah. In other words, the cause that the Imam (peace be upon him) has mentioned is acceptable only within the scope of financial dealings; because the questioner has asked whether, if the agent (ʿāmil), after the conclusion of the muḑārabah contract, passes away, he can deal in the property of the muḑārabah, which pertains to the orphans. The Imam has said: yes, he gave permission during his lifetime, and therefore he can deal [in it] after his death as well. Pay close attention that, in essence, the father, during his lifetime, gave property for muḑārabah and asked someone to engage in commerce with that money. Now this person has passed away; can he, subsequently, work with this money as before, or not? That is, does the very moment of this person’s death mean that this action of his is counted as dealing in the orphan’s property? The Imam (peace be upon him) states there is no problem in this. The subject matter of the tradition is not stating, “let this money be at your discretion, and after my death, work with this money,” such that this objection would arise — namely, that this property belonged to them; he has now given a sum of money and said, “work with this money.” He has then also appointed someone as executor, so that he might give the profit of this money to his children, and he has then passed away; after the death of this person, [the question is] whether he can undertake this action, or not. The Imam (peace be upon him) states: he can.

Question:

Professor: Alongside making the bequest, he has also undertaken this action; that is, as it were, a financial undertaking has begun during his lifetime, and the discussion is whether, after his death, [the executor] can continue this action, or not. … The supposition is that the children are minors, and this person is also the executor; this very person with whom he has concluded the muḑārabah contract is the executor. Can he continue this with this money and engage in commerce and give them a profit? The Imam (peace be upon him) says: yes; he had this discretion and permission during his lifetime, and, in that very state, he gave him permission; why should we say he cannot undertake this action? Bi-sharḥin aydan (likewise, by way of explanation), with respect to marriage as well. “On account of the fact that their father had given him permission for this while he was still alive” — when it says “permission” (idhn), permission for what? That is, for anything for which lahu an ujīzahu (he had the right to grant permission); he had this right, to grant permission and give permission. This continues in the same manner. In summary, the third objection was that we cannot extend [the ruling] from the subject matter of the causal explanation to something other than it, even if we say that the cause has generality or unqualified scope. If it has unqualified scope and generality, this is confined to that very subject matter of the causal explanation — that is, financial matters; this unqualified scope cannot be broadened to encompass non-financial matters or something like marriage.

Examination of the Third Objection

This objection, too, is not sound; because, although it is true that in this tradition it has not been explicitly stated that the father gave permission with respect to that over which he had discretion — for the objector himself states that, had it stated this — that the father gave permission with respect to that over which he had discretion — the extension from the subject matter of the causal explanation would have been acceptable; but, since it has not stated this, we cannot extend [the ruling] from financial matters to marriage. Our point is that, although this expression does not appear in the tradition, it is evident that this is precisely what is meant. The objector himself states that, had it stated this, this extension would have been acceptable; our point is that, although it has not stated this in this manner, it is entirely clear that the meaning is precisely this — that qad adhana lahu fī dhālik (he had given him permission for this) — that is, qad adhana lahu fī ḥudūdi ikhtiyārih (he had given him permission within the bounds of his own discretion); he gave him permission to the extent that he himself was capable of [granting]; otherwise, with respect to something that was not within his own discretion, it makes no sense to say that he “gave permission,” when he had no right to grant permission at all — to grant permission with respect to something that bore no relation to him whatsoever. Therefore, it appears that the tradition of Muḥammad ibn Muslim, contrary to some, does carry the indication, in agreement with Muḥaqqiq al-Khūʾī.