Issue 5, First Position: Examination of the Establishment of the Option for a Minor Girl
Session Twenty
Issue 5 – First Position: Examination of the Establishment of the Option for a Minor Girl – Evidences for the Establishment of the Option (Conflicting Traditions) – Fourth Tradition – Approach to Reconciling This Tradition with the Traditions Indicating Bindingness – The View of Muḥaqqiq Khūʾī – The Preferred View Regarding the Conflict – Second Position: Examination of the Establishment of the Option for a Minor Boy – Positions
October 27, 2025
Summary of the Previous Session
The discussion concerns the traditions that conflict with the traditions indicating the bindingness of the marriage that has been concluded by the paternal grandfather or father on behalf of a minor girl. Up to this point, we have transmitted and examined three traditions; some of these traditions have a problem with respect to their indication of non-bindingness. For those that do indicate non-bindingness, such as the authentic tradition of Muḥammad ibn Muslim, we have necessarily pursued a path of reconciliation; however, all of these approaches have, in some manner, been cast into doubt.
Fourth Tradition
The fourth of the conflicting traditions is the closing part of the authentic tradition of al-Ḥalabī; a tradition has been transmitted from al-Ḥalabī, from Imam al-Ṣādiq (peace be upon him), whose opening is not relevant here, but in its closing part a question is raised by the narrator, who states: “If she died, or he died, he said: The inheritance is withheld until whichever of them remains reaches maturity; then he swears by God that nothing prompted him to take the inheritance except his consent to the marriage, and the inheritance is given to him.” This tradition concerns a boy whose father married him off to another at the age of ten. The narrator asks whether, while he is ten years old, he can divorce her or not. The Imam (peace be upon him) has answered. The narrator raises a further question, stating: what happens if the girl who has become this boy’s wife, or the boy himself, passes away? The matter and the question concern inheritance; the Imam (peace be upon him) states: the inheritance is held in reserve until these two reach maturity. Then, if they reach maturity, they are made to swear by God that they were satisfied with this marriage; after he swears that he was satisfied with this marriage, he then inherits. The approach to the argument from this tradition is as follows: if the father had guardianship to marry off the daughter and son, and the marrying-off was valid and binding, why has this tradition ruled that this contract is unauthorized, such that, for the purpose of inheriting, the daughter, after reaching maturity, must swear that her consent was not solely for the purpose of inheriting? This very ruling, and the requirement that the daughter swear that she was satisfied with the marriage for the purpose of inheriting, indicates that this contract was not binding. If it were binding, why would she need to swear an oath in order to inherit? If this contract had been valid and binding from the very period of minority, and was not unauthorized, why does it now say that, in order to inherit, an oath must be administered? Therefore, this closing part indicates the non-bindingness of this marriage. Thus, in opposition to the traditions that indicate bindingness, this tradition indicates non-bindingness.
Approach to Reconciling This Tradition with the Traditions Indicating Bindingness
Is there a way to reconcile here? It might be said, as an approach to reconciliation, that the traditions which indicate bindingness, and whose import is that the daughter has no right to oppose the father’s action, pertain to a supposition in which the husband is alive—that is, if that man is alive, there is room for opposition and dissatisfaction on the wife’s part toward the man. But the tradition of al-Ḥalabī, which raises the matter of the oath, pertains to a supposition in which that man has passed away, and now his marital status has no effect for the woman except with respect to inheritance. In this supposition, if she is satisfied, the inheritance accrues to her. Therefore, opposition, after reaching maturity, to that marriage whose husband has died, is highly improbable; naturally, such opposition would result in her being deprived of the inheritance. Therefore, the daughter’s agreement is natural here; she agrees and consents in order to inherit. However, in order to inherit, it is said that she must swear an oath. Therefore, the daughter’s consent is a condition only in a case where the husband has died and she wishes to inherit, and this, too, must be accompanied by an oath. The result is that this tradition does not indicate non-bindingness; because the subject matter of this tradition differs from the subject matter of the traditions indicating bindingness; therefore the conflict is removed, and the traditions of bindingness remain in their full force. However, there is no supporting evidence for this reconciliation; that the husband has died—according to this supposition, it would have to be considered that he died before reaching maturity—and this tradition conveys no such thing. In any case, even if we suppose that this tradition does carry this indication, we are now faced with two categories of traditions. Even if we do not accept the first tradition [as conflicting], and raise an objection regarding the second tradition, in the end, the third tradition (the authentic tradition of Muḥammad ibn Muslim) indicates non-bindingness; and this tradition too, in the end, we say indicates non-bindingness. Therefore, we are left with two categories of conflicting traditions. One category of traditions states that, if a minor girl is married off by the father or paternal grandfather, she has no discretion after reaching maturity, and this contract is binding. [The fourth] tradition indicates non-bindingness. What, then, is to be done here?
The View of Muḥaqqiq Khūʾī
As was indicated in the previous session as well, the late Āyatullāh Khūʾī has, here, exercised caution (iḥtiyāṭ); he states: if we had consensus on the non-establishment of the option, we would rule the absence of the option on the basis of consensus. Naturally, on the basis of consensus, we would have to rule bindingness. He has accepted the indication of the tradition of Muḥammad ibn Muslim and states that it is “clear in its indication, indeed explicit in its indication” regarding the non-bindingness of the contract; he states that we must set it aside and refer knowledge of it back to its proper experts. But if there is no consensus (which apparently there is not), “acting upon it becomes necessarily determined”—that is, acting upon the tradition of Muḥammad ibn Muslim becomes the determined course. Only one problem remains, namely that the majority have turned away (iʿrāḑ) from the tradition of Muḥammad ibn Muslim, and no one has issued a ruling on its basis; then how can you say that “acting upon it becomes necessarily determined”? He states: you have repeatedly understood that the turning away of the majority from an authoritative tradition does not result in the loss of that tradition’s authoritativeness; at most, this means that the majority have not acted upon this tradition and have not issued a ruling on its basis; this is not a problem, because we hold that the turning away of the majority does not weaken a tradition or strip it of its authoritativeness. Thus, he states, in the first instance, that if there is consensus, we submit to the consensus and hold to the bindingness of this contract; but if there is no consensus, we must, without hesitation, act upon this tradition. He then states: at the very least, we should exercise caution; and this caution consists in this, that if the daughter is not satisfied with this contract, she should be divorced. Because, if we say that her consent is authoritative and she has the right of rescission, then naturally, if she exercises the option, that contract is rescinded and there is no need for divorce. But he states that we exercise caution: “and in that case, at the very least one must hold to the precaution of divorce when she is not satisfied with the contract after reaching maturity”—at the very least, we must say that, if the daughter is not satisfied with this marriage, she must be divorced.
The Preferred View Regarding the Conflict
The substance of this matter remains, as it were, a problem—namely, what we should do with these conflicting traditions. Is there consensus on bindingness or not? You have observed that, at the beginning of the discussion, we stated that there is no consensus, although there is strong renown (shuhrah qawiyyah) on this matter. We are faced with two categories of traditions: traditions indicating bindingness and traditions indicating non-bindingness. Which should we give preference to? It appears that, in light of the renown based on transmission (shuhrah riwāʾiyyah) of the first group, we must accept the absence of the option; as the majority, and the Imam (may God’s mercy be upon him), and the late Sayyid have stated, and as most of the annotators have likewise accepted, this contract is binding. This is because the traditions that indicate bindingness have greater renown; you have observed that these traditions perhaps reach a level that creates a relative assurance for a person. It is surprising how the late Āyatullāh Khūʾī has paid no attention to this point; his statement, of course, indicates that he regards the tradition of Muḥammad ibn Muslim as explicit—he states that we have one tradition that is explicit regarding non-bindingness, and, in opposition, we have traditions that have the apparent sense of bindingness. Naturally, a tradition that indicates non-bindingness would, on account of its explicitness, take precedence over traditions that have the apparent sense of bindingness. He then states that, at the very least, we should exercise caution. But, with respect to the degree and level of apparent indication, these two categories of traditions are nearly equal; with respect to the chain of transmission as well, both groups contain traditions sound in chain of transmission. We are faced with these two categories of conflicting traditions; but, given that the first group is more renowned, and there are more traditions indicating bindingness, we must accept that this marriage is binding and that the daughter has no right to rescind it. This conclusion—namely, the non-establishment of the option, or bindingness—can perhaps be corroborated by certain other matters as well. It might be said that this is corroborated by the presumption of bindingness (aṣālat al-luzūm). The presumption of bindingness in contracts corroborates the bindingness of such a contract; the supposition, too, is that guardianship is established for the father or paternal grandfather.
Question:
Professor: As it happens, one of the corroborating factors is renown based on legal opinion (shuhrah fatwāʾiyyah)… it is corroborative, not an [independent] authority… ; the content (maḑmūn) of these traditions is renowned. Conceptual transmission with multiple chains (tawātur maʿnawī) consists in this: that the meaning, import, and content of a tradition be renowned, even if expressed with differing wordings and phrasings. The same applies here; the traditions that indicate bindingness are renowned with respect to their content and import—like conceptual transmission with multiple chains. Of course, such a term has not been used [by the jurists], but we can use this term by analogy to conceptual transmission with multiple chains. This too must be taken into account: that, after reaching maturity, the continuation of this marriage might be accompanied by certain harms—that is, if we oblige the daughter to accept this marriage and tell her that she has no right to dissolve it, this could entail corruption. At that point, taking the circumstances into consideration, the judge (ḥākim) can make a decision; but according to the general rule and the evidences, when we say that such a contract is not contingent upon the daughter’s consent, this is like other instances in which guardianship is established, where the father or paternal grandfather can marry her off to another. We do not tie the matter to consent—that is, after reaching maturity, this daughter must accept and ratify this contract. Do not let it come to your mind that this daughter is unsatisfied and is compelled to continue under these circumstances; because the supposition is that the condition of the absence of corruption has been observed. This is a husband who is neither defective nor problematic; to make this, too, contingent upon the daughter’s permission or consent has no supporting argument.
Second Position: Examination of the Establishment of the Option for a Minor Boy
The second position concerns the marrying-off of a minor boy. At the outset, we stated that, in the fifth issue, we are discussing two positions; the Imam (may God’s mercy be upon him) has stated both together: “If the contract is concluded by the father or the paternal grandfather on behalf of a minor boy or minor girl, with the observance of what must be observed”—with the supposition that everything that must be observed has been observed—”neither of them has an option after reaching maturity; rather, it is binding upon them”—after reaching maturity, they have no discretion; rather, this contract is binding upon them. The late Sayyid has stated the same matter, but with respect to the minor boy there is a reference in the text of al-ʿUrwah which I shall recall: “And likewise the minor boy, according to the stronger view”—that is, as it were, there is disagreement with respect to the minor boy; “and the position holding that he has the option of rescission or ratification is weak”—to say, with respect to the minor boy, that after reaching maturity he has the discretion to either rescind or ratify the transaction, is weak. Now we wish to determine: if the father undertakes to marry off another to his son while the son has not yet reached the age of maturity, is this contract effective and binding or not? That is, can the son dissolve this contract, or must he submit to it?
Positions
Regarding the option with respect to this contract, two general positions exist:
- One position is that this contract, like the contract concluded on behalf of a minor girl, is binding; this is what the late Sayyid stated “according to the stronger view.”
- The other position is that this contract is not binding; rather, the son, after reaching maturity, can either ratify or rescind it. Those who say that the option is established in this contract and that it is not binding are themselves divided into two groups: One group says that this contract is unauthorized (fuḑūlī)—that is, the one who must confirm or reject it has the option of rejection or permission; because they consider that the contract which was concluded to be an unauthorized contract. The other group holds that the contract was not unauthorized and possessed contingent validity (ṣiḥḥah taʾahhuliyyah), and that, now that we hold the option to be established for the son, this means that he can rescind the contract. The first view belongs to the author of al-Ḥadāʾiq, and the second view belongs to the author of Mustamsak. Thus, altogether, we can say that there are three positions on this matter.