Issue 4, First Position: Examination of the Condition of the Absence of Corruption

Session Five

Issue 4 – First Position: Examination of the Condition of the Absence of Corruption – Examination of the Possibility That the Marriage Is Invalid Even on the Supposition of Permission – Examination of the Possibility of Invalidity – The Statement of Muḥaqqiq Khūʾī and Its Examination – The Conclusion of the Discussion on the First Position

September 22, 2025

Summary of the Previous Session

The discussion concerned the conditioning of the guardianship of the father and paternal grandfather upon the absence of corruption (mafsadah) in the daughter’s marriage. The conclusion was that the guardianship of the father and paternal grandfather is contingent upon the absence of corruption, and if their contract involves corruption, it is not effective; therefore, like an unauthorized contract (fuḍūlī), it requires subsequent permission (ijāzah). However, the late Sayyid, in al-ʿUrwah, has raised a possibility here, namely that if this contract involves corruption, it would not become valid even with the daughter’s subsequent permission after reaching maturity; he stated: “And it is possible that its validity [does not occur] even [with permission].” This possibility is not found in the text of Taḥrīr, and the Imam (may God’s mercy be upon him) himself has placed an annotation here regarding this possibility, stating: “However, it is weak.” The discussion concerned, first, what the basis of this possibility is, and second, why it is weak and where its problem lies. The late Āyatullāh Ḥakīm has mentioned a basis for this possibility, which was elaborated upon by the late Āyatullāh Khūʾī; the basis was that if we hold that, in an unauthorized contract, the eligibility (ahliyyah) of the one granting permission (mujīz) and his having a legally operative disposition (jāʾiz al-taṣarruf) at the time of the contract is necessary, then we must say that in a case where this contract is undertaken by the father or paternal grandfather and involves corruption, it would not be rectified even by subsequent permission. This is because, at the time this contract was concluded, the daughter did not have the eligibility for permission and did not have a legally operative disposition, since she was not of age. Therefore, if we hold to the authority of that condition, we would naturally have to say that this contract would not be effective even with the daughter’s permission after reaching maturity. The late Āyatullāh Khūʾī has here envisioned two scenarios, stating: at one point we say that the validity of the unauthorized contract following the attachment of permission is in accordance with the general rule (qāʿidah)—that is, the general rule requires that a contract undertaken in an unauthorized manner, if permission is subsequently attached to it, be valid. At another point, we accept the validity of the unauthorized contract following the attachment of permission on the basis of specific traditions and as a matter of submission to the textual evidence (taʿabbud). In any case, whether on the basis of the general rule or on the basis of the traditions, we say that the unauthorized contract is rectified and rendered effective by subsequent permission. He states: if our basis for the validity of the unauthorized contract following the attachment of permission is the traditions, then, since all the traditions pertain to a case in which the one granting permission has competence and eligibility for permission, if someone does not have the eligibility for permission, he is not covered by these traditions. That is, if the principal party (aṣīl) did not have eligibility for permission at the time of the contract, the contract is not valid. Thus, the basis for the possibility of the invalidity of the unauthorized contract following the attachment of permission is that the one granting permission did not have, at the time of the contract, the eligibility for permission and did not have a legally operative disposition. Therefore, here, where the late Sayyid has raised the possibility of invalidity even after the attachment of permission, it is because of the absence of this condition; because this daughter, at the time when her father married her to another and that contract involved corruption, did not have the eligibility for permission; therefore, even after reaching maturity, she cannot grant permission for that contract so that the contract becomes effective. Hence, such a contract is fundamentally void. This is the basis for the possibility of invalidity; that is, if we accept that condition and say that such a condition is necessary for the validity of the unauthorized contract, we would necessarily have to hold to its invalidity here.

Examination of the Possibility of Invalidity

This possibility is weak, and therefore the Imam, in the text of Taḥrīr, has not referred to this possibility. But why is this possibility weak? Because such a condition is not accepted; the majority do not hold to this condition; there is no argument establishing that the one granting permission must have, at the time the contract is issued, the eligibility for permission. It suffices that the one granting permission has eligibility at the time of granting permission. Suppose the contract was concluded two years ago, and at that time he did not have the eligibility for permission—whether because he was a minor, or insane, or for any other reason; now, after two years, he wishes to grant permission, and at the time of granting permission he has eligibility and has reached maturity—this alone suffices for the validity of the unauthorized contract. This is because, for the validity of the unauthorized contract, the mere rectification of attribution (taṣḥīḥ al-intisāb) suffices—that is, that this contract, through permission, becomes attributed to this person. This is because such a condition is contrary to the unqualified scope of the evidences.

The Statement of Muḥaqqiq Khūʾī

The late Āyatullāh Khūʾī has here stated that the validity of the unauthorized contract following the attachment of permission is in accordance with the general rule and not derived from the traditions; because, as we said, there are two ways by which the validity of the unauthorized contract following the attachment of permission can be established: either we say that this is in accordance with the general rule, or we say that, although it is indeed contrary to the general rule, traditions have been transmitted that bind us to the validity of such a contract. The late Āyatullāh Khūʾī has stated that the validity of the unauthorized contract by subsequent permission is in accordance with the general rule—that is, the general rules require that this contract be valid. This is because if a contract is issued by someone other than the owner or the one possessing the right, its only problem is that it is issued by another; that is, for example, the owner did not sell this property, but rather someone else sold it; otherwise, this contract has no problem from other angles. The only problem is that this contract is not attributed to the principal party but is attributed to another. When the principal party grants permission to the contract, this means that this contract, which was concluded at such a time, is attributed to me. It is true that, until now, it was suspended in abeyance; someone had concluded this contract who had no relation to this property. It was contingent and held in abeyance (muʿallaq and murāʿā); now that permission is issued, this results in the attribution of that constructive reality (ḥaqīqah iʿtibāriyyah) to the owner; he accepts its relation to himself. Therefore, this contract, as it were, is considered, from the very time of its conclusion, to be his own contract. So why should we not consider it obligatory to fulfill? What obstacle stands against the application of “Fulfill your contracts” (awfū bi-l-ʿuqūd) to this contract? Everything about it is complete; therefore, “Fulfill your contracts” requires that this contract be valid and effective. Thus, in the view of the late Āyatullāh Khūʾī, this contract can become valid with subsequent permission, and to entertain the possibility of invalidity is not acceptable. What matters is that when this daughter reaches maturity, she has the eligibility for permission and a legally operative disposition; when she grants permission, the attribution of that contract to herself is realized. Therefore, there is no problem, and we cannot rule the contract invalid. However, he states that if we regard the basis for the validity of the unauthorized contract following permission as the traditions, then here the late Sayyid is correct; that is, if we say that, on the authority of the traditions, the unauthorized contract becomes valid by virtue of permission, the late Sayyid is correct. This is because the traditions pertain to a case in which the one granting permission has, at the time of the contract, the eligibility for permission, and since these traditions, contrary to the general rule and as a matter of submission to the textual evidence, have deemed such a contract effective for us, we must confine ourselves to the same extent to which it has been deemed valid contrary to the general rule, and this pertains only to a case in which the one granting permission had eligibility at the time of the contract. Therefore, if somewhere the one granting permission did not have eligibility at the time of the contract, we cannot establish the validity of this contract following the attachment of permission. This is because, wherever traditions establish a ruling contrary to the general rule, we must confine ourselves to the certain minimum (qadr al-mutayaqqan), and this is such a case. Thus, the objection of the late Āyatullāh Khūʾī is that, in general, this basis—that the one granting permission must have eligibility for permission at the time of the contract—is not correct, because the general rule requires that the unauthorized contract be rectified and rendered effective by the permission of the one granting it. Nor does it make any difference whether the one granting permission had eligibility at the time of the contract or not. Therefore, he raises an objection regarding the basis itself and states that, given that the validity of the unauthorized contract is in accordance with the general rule, there is no ground for that condition. However, if we regard the basis for the validity of the unauthorized contract following the attachment of permission as the traditions, the import of the traditions is that this contract becomes valid only in a case where the one granting permission had eligibility for permission at the time of the contract. That is, in this case, the late Sayyid is correct, because the traditions pertain to a case in which the one granting permission, at the time of the contract, had eligibility for permission. Thus, the course of the discussion was as follows: First, what is the basis for the possibility of invalidity? It is the acceptance of a certain basis and the holding to a certain condition, namely that the one granting permission must have, at the time of the contract, the eligibility for permission. Therefore, since this daughter has not yet reached maturity and did not have eligibility at the time of the contract, this contract would not be rectified even by subsequent permission. This is the basis for the possibility of invalidity. The objection to it is that this basis is fundamentally invalid and unacceptable. However, the late Āyatullāh Khūʾī states that this basis is unacceptable because the general rule requires that this contract be valid; but if we regard the argument for the validity of the unauthorized contract following the attachment of permission as the traditions, then in this case the late Sayyid is correct.

Examination of the Statement of Muḥaqqiq Khūʾī

However, it appears that this statement of the late Āyatullāh Khūʾī is not free of difficulty; he makes two claims. The first claim is that the validity of the unauthorized contract following the attachment of permission is in accordance with the general rule; this statement of his is correct, and we have no quarrel with this statement. His second claim is that, if the validity of the unauthorized contract following the attachment of permission is grounded in the traditions, the traditions establish for us the condition that the one granting permission must exist at the time of the contract, must have eligibility, and must have a legally operative disposition. However, this claim is not free of difficulty. The late Āyatullāh Ḥakīm states that, in general, the evidences and the traditions are unqualified in this respect; contrary to Āyatullāh Khūʾī, who states that the traditions pertain to the supposition of the existence of the one granting permission and his eligibility for permission at the time of the contract, the late Āyatullāh Ḥakīm states that the evidences are unqualified. In general, subsequent permission can rectify the unauthorized contract, and in principle the condition of the existence of the one granting permission or his eligibility for permission is not necessary. His statement is: “However, the conditioning of this is contrary to the unqualified scope of the evidences.” The conditioning that the one granting permission must, at the time of the contract, have a legally operative disposition and have eligibility for permission, is contrary to the unqualified scope of the evidences. One of the evidences is the traditions; he holds that the traditions are unqualified and are not specifically related to the eligibility and existence of the one granting permission at the time of permission. This is what the late Āyatullāh Ḥakīm has stated, and he is correct. However, the claim of Āyatullāh Khūʾī is not correct, because even within the traditions there are instances in which, although the one granting permission did not have eligibility, the ruling of validity was nonetheless given. I shall transmit one tradition for you. This tradition alone suffices to cast doubt upon the statement of the late Āyatullāh Khūʾī. Pay close attention to this tradition to see whether it supports the statement of Āyatullāh Khūʾī or that of Āyatullāh Ḥakīm. The statement of Āyatullāh Khūʾī is that the traditions pertain to a case where the one granting permission had, at the time of the contract, the eligibility for permission, whereas Āyatullāh Ḥakīm states that this is unqualified. The Tradition of Abū ʿUbaydah al-Ḥadhdhāʾ: [The text of the tradition]: “I asked Abū Jaʿfar (peace be upon him) about a boy and a girl whom their two guardians had married to each other, while both were not yet of age.” He said: “The marriage is valid, and whichever of them reaches maturity has the option [of rescission].” [The tradition continues]: “And if they both die before reaching maturity, there is no inheritance between them and no dower, unless they had both reached maturity and consented. I said: What if one of them reaches maturity before the other? He said: That is binding upon him if he consents. I said: What if the man who reached maturity before the girl, and consented to the marriage, then died before the girl reached maturity—does she inherit from him? He said: Yes; her share of the inheritance is set aside until she reaches maturity, whereupon she swears by God that nothing prompted her to take the inheritance except her consent to the marriage; then the inheritance and half the dower are given to her. I said: What if the girl died and had not yet reached maturity—does the husband who had reached maturity inherit from her? He said: No, because she has the option [of rescission] when she reaches maturity. I said: What if it was her father who married her off before she reached maturity? He said: The father’s marrying her off is binding upon her, and it is binding upon the boy, and the dower is upon the father, owed to the girl.” It is true that this does not concern an unauthorized contract per se, but the guardian of these two married them to one another; yet did they have, at the time of the contract, the eligibility for permission or not? They did not, because both were not of age. The Imam (peace be upon him) has ruled it valid, except that whichever of them reaches maturity has the option [of rescission]. Does this tradition pertain to a case where the one granting permission has eligibility at the time of the contract? When the late Āyatullāh Khūʾī states that if we derive the validity of the unauthorized contract following permission from the traditions, all of them pertain to the supposition that the one granting permission had eligibility at the time of the contract—whereas in this tradition it is evident that there was no eligibility for permission—there are also other traditions here which there is no opportunity to read.

Conclusion of the Discussion on the First Position

It has thus become established from all that we have stated that the possibility which the late Sayyid mentioned in al-ʿUrwah, namely the invalidity [of the contract] even with the attachment of permission, is an invalid and weak possibility; for this reason, the Imam (may God’s mercy be upon him), in the text of Taḥrīr, has made no reference to this possibility whatsoever. One portion of the fourth issue remains, namely the second position of our discussion; we stated that, in the fourth issue, we are discussing two positions, since this issue entails the discussion of the condition of two matters. In the first position, the discussion was on the condition of the absence of corruption—that is, whether, if the father and paternal grandfather have guardianship, this guardianship is conditioned upon the absence of corruption or not. The conclusion was that this condition exists, and arguments indicate it. The consequence of this conditioning is that if a father or paternal grandfather marries off his immature daughter to someone in a manner that entails corruption for her, this daughter may, after reaching maturity, withhold permission for this contract. The possibility of invalidity which the late Sayyid had stated has also been refuted.

Discussion for the Next Session

The second position concerns the authority of benefit (maṣlaḥah). Now that it has become clear that the validity of this contract is contingent upon the absence of corruption, the question is whether the existence of benefit is also a condition or not. This is because, at times, a contract may have neither benefit nor corruption; it has become clear that it must not have corruption. But beyond this, is the guardianship of the father also conditioned upon benefit or not? In other words, is the validity and effectiveness of the guardian’s contract contingent upon this contract possessing benefit, such that if there is no benefit, the contract becomes unauthorized (fuḍūlī)? This is a further condition and a higher stage, which will be examined in the next session.