Issue 5, Second Position: Examination of the Establishment of the Option for a Minor Boy
Session Twenty-Three
Issue 5 – Second Position: Examination of the Establishment of the Option for a Minor Boy – Arguments for the Positions – Arguments for the First Position – Examination of the Second Argument – The Objection of the Author of al-Ḥadāʾiq – Summary of the First, Second, and Third Arguments – Fourth Argument: Presumption of Continuity, and Its Examination – Conclusion of the Discussion on the Arguments for the First Position – Second Position: The Establishment of the Option for the Minor Boy
November 10, 2025
Examination of the Second Argument
The discussion concerned the arguments for the bindingness of a contract that has been concluded by the father or paternal grandfather on behalf of an immature boy; several arguments were mentioned: one argument consisted of general traditions comprising several traditions. The second argument was general unqualified statements and general rules; the third argument was specific traditions. What pertains to the general rules and unqualified statements has been stated; we said that, on the authority of “Fulfill your contracts” (awfū bi-l-ʿuqūd), fulfilling every contract is necessary, and this encompasses the guardian’s contract on behalf of the minor boy as well. An objection was raised, namely that “Fulfill your contracts” means “fulfill your own contracts” (awfū bi-ʿuqūdikum), and a contract that the guardian concludes on behalf of the minor boy is not counted as the minor boy’s own contract, such that it would fall within the scope of “fulfill your own contracts”; the contract here is the guardian’s contract, not the minor boy’s; therefore, fulfilling it is not necessary for the minor boy, because he did not conclude the contract—rather, the father or paternal grandfather concluded it; therefore, fulfilling it is not necessary [for him]. A response was given: that the father or paternal grandfather, too, when concluding the contract on behalf of this boy, can do so by virtue of guardianship—that is, because they have discretion over the boy’s affairs, they can marry him off to another. Therefore, the guardian’s contract is the very same contract as the minor boy’s, and is not like that of an agent or an unauthorized person; if the guardian concludes the contract, it is by virtue of guardianship, and therefore his contract is counted as the very contract of the minor boy himself. Therefore, “Fulfill your contracts,” which means “fulfill your own contracts,” encompasses the minor boy as well. Therefore, this contract is binding, and the option is not established for the boy.
The Objection of the Author of al-Ḥadāʾiq
The author of al-Ḥadāʾiq has regarded the establishment of bindingness by way of the general rules and unqualified statements, such as “Fulfill your contracts,” as a case of begging the question (muṣādarah bi-l-maṭlūb); he states: the very fact that the guardian’s contract is counted as the minor boy’s contract is itself the subject of our discussion; begging the question means that the argument is identical to the claim itself. Someone, in the position of presenting an argument, states the matter in such a way that it is identical to the claim itself. Here too, where “Fulfill your contracts” has been invoked for bindingness, this is identical to the claim itself; the statement that the guardian’s contract is counted as the very contract of the minor boy is precisely the point at issue (awwal al-kalām). We wish to determine whether the guardian’s contract is counted as the minor boy’s contract or not; if we say that the minor boy, after reaching maturity, has no option and cannot dissolve the contract, this means that the guardian’s contract is the very same as the minor boy’s contract. If the guardian had concluded the contract for himself, it would be binding; now, since he has concluded it by virtue of guardianship on behalf of the minor boy, this too is binding. But if we say that the guardian’s contract is not counted as the minor boy’s contract, this means that the contract is not binding and the minor boy can dissolve the contract. Therefore, the argument is identical to the claim itself; hence the author of al-Ḥadāʾiq has objected that invoking the general rules and unqualified statements is begging the question. His statement is: “And they have argued in this position that the guardian’s contract is a contract issued by one competent to issue it, in its proper place, and is therefore binding like other financial contracts; and what is hidden in this from susceptibility to objection, and the directing of criticism against it, is not concealed, for the opponent denies this in this very case, and is this anything other than the very substance of the claim, such that it amounts to begging the question?” This is an objection that has been raised against that argument, and it appears that this objection is sound. In summary, invoking the general rules and unqualified statements to establish bindingness in such a contract amounts to begging the question.
Summary of the First, Second, and Third Arguments
Up to this point, we have mentioned three arguments for bindingness: one was general traditions, one was general rules and unqualified statements, and another was specific traditions. Traditions that indicate the validity of the father’s marrying-off do not indicate bindingness, because validity is broader than [encompassing both] bindingness and revocability. We have also rejected the response of the late Āyatullāh Khūʾī; there are certain traditions that indicate that, if a father marries off his son to another, his contract is valid; we have taken validity here to mean actual validity (ṣiḥḥah fiʿliyyah), not contingent validity (ṣiḥḥah taʾahhuliyyah), which pertains to an unauthorized contract. This is broader than [encompassing] whether this contract is binding or revocable. Therefore, those traditions do not indicate bindingness. As for the traditions that indicate the prohibition of divorce, and that, if a divorce were given, the dower would fall upon the father, we have stated that these indicate bindingness. As for the traditions that indicate mutual inheritance, we have stated that bindingness is derived from them. The second argument concerned the general rules and unqualified statements, or, in other words, the requirement of the primary general rule (aṣl awwalī) in the matter—that is, the requirement of “Fulfill your contracts” and the like. We have stated that this does not indicate bindingness. The third argument was specific traditions; we mentioned several traditions as specific traditions; some of these traditions do indicate bindingness, while others do not. This is the substance and conclusion of the discussion regarding the three arguments that were advanced for bindingness.
Fourth Argument: Presumption of Continuity
The fourth argument is the presumption of continuity (istiṣḥāb). The contract that the father has concluded on behalf of the son is certainly valid; the evidences for the validity of the father’s marrying-off require that his contract on behalf of his son be valid and effective; this validity is also actual, but, until this person reaches maturity, no one has the right to dissolve this contract—that is, the father cannot dissolve this contract, and the son, too, has not yet reached maturity such that he might wish to dissolve this contract. Now, after maturity, we doubt whether that contract, which was previously binding and which neither the father nor the son could rescind, can now be rescinded by the son or not. We apply the presumption of continuity to the persistence of the contract. Therefore, we can claim that this contract is a binding contract. Thus, by means of the presumption of continuity of the contract, the bindingness of this contract is established.
Examination of the Fourth Argument
This argument too is open to objection.
First Objection
If you recall, this argument was invoked to establish the bindingness of the contract of a minor girl as well. One of the arguments that was invoked for the bindingness of the contract of a minor girl, and for the position that she, after reaching maturity, cannot dissolve the contract, was the presumption of the continuity of the contract. There, we stated that the operation of the presumption of continuity in doubts regarding rulings (shubhāt ḥukmiyyah) is a matter of dispute, and indeed open to question. The presumption of continuity operates in doubts regarding particular matters (shubhāt mawḑūʿiyyah); when we doubt an external particular matter, such as purity, impurity, the ownership of a thing, and the like, we can, by means of the presumption of continuity, establish the purity of a thing, the ownership of a person, or the impurity of something. But with respect to doubts regarding rulings, such as our present case, the operation of the presumption of continuity is open to question and objection. This is a fundamental problem.
Second Objection
A further objection, which is open to examination and which we did not raise there, is as follows: granting that we hold the presumption of continuity to operate in doubts regarding rulings, and granting that the operation of the presumption of continuity is not confined to doubts regarding particular matters but also encompasses doubts regarding rulings—nevertheless, the presumption of the continuity of the contract, with respect to its underlying cause (muqtaḑī), is confronted with an obstacle. This is because this contract is binding [only] until the time of maturity—meaning that the father has concluded this contract and has no right to dissolve it. But does the son have the right to dissolve it or not? The son, certainly, until the time of maturity, had no right to dissolve it. But is there an underlying cause for the continuation or bindingness of the contract after reaching maturity, or not? This is open to discussion. In other words, if we doubt whether, after reaching maturity, this boy has the right to rescind this contract or not, it is because the bindingness of this contract until the time of maturity is certain for us; the underlying cause for the continuation of the contract up to the time of maturity is definite. But with respect to the period after maturity, the basic underlying cause is not known to us; therefore, this is, as it were, a doubt regarding the underlying cause of continuation, and the presumption of continuity does not operate in a doubt regarding the underlying cause (shakk fī al-muqtaḑī).
Conclusion of the Discussion on the Arguments for the First Position
Therefore, up to this point, of the four arguments that were advanced, the second and fourth arguments were not accepted; neither the presumption of continuity nor the general rules and unqualified statements can be invoked—even though most jurists, in establishing bindingness, have relied upon the general rules and unqualified statements, and have rarely, in the past, relied upon the traditions. The first and third arguments, which are traditions, can, to some extent (fī al-jumlah), establish bindingness. That is, some of the general traditions and some of the specific traditions establish the bindingness of the contract of a minor boy concluded by the father or paternal grandfather, and this is corroborated by the strong renown (shuhrah qawiyyah) that exists on this matter. Among the jurists, we have no one who has held that the minor boy, after reaching maturity, has the option of rescission. This concludes the discussion of the first position, namely bindingness.
Second Position: The Establishment of the Option for the Minor Boy
As we previously stated, there is also another position on this matter, namely non-bindingness; some have held to the establishment of the option for the minor boy after reaching maturity. Although the Imam (may God’s mercy be upon him), in the text of Taḥrīr, has made no reference to this position, the late Sayyid has mentioned this position but has stated that it is weak; the statement of the late Sayyid is: “And likewise the minor boy, according to the stronger view”—that is, he has no option; that is, likewise, the minor boy, after reaching maturity, has no option to rescind the marriage contract; “and the position holding that he has the option of rescission or ratification is weak”—that is, there is a position opposed to this, namely that the minor boy, after reaching maturity, has the option of rescission—that he can either ratify or rescind this contract. However, the Imam (may God’s mercy be upon him), in Taḥrīr, has made no reference to this weak position, and has mentioned the minor boy and minor girl together. First, we must determine who holds this position, and second, what their arguments are; on what grounds have those who hold to the option made this claim? Those who hold this position are also noteworthy. Sayyid al-Murtaḑā, in the book al-Intiṣār and in the book al-Nāṣiriyyāt, has held to the option of rescission. What the late Sayyid al-Murtaḑā has stated is, in fact, the very same option that the principal party (aṣīl) has with respect to an unauthorized contract (fuḑūlī). We have previously stated that “option” is used in two senses; at times, “option” pertains to the principal party with respect to an unauthorized contract. If someone sells another’s property, the owner can either ratify or reject that sale. The other meaning of “option” is that the very owner who concludes the transaction has the right to dissolve that transaction. The difference between these two is clear: an unauthorized contract possesses contingent validity (ṣiḥḥah taʾahhuliyyah)—that is, it has the eligibility and capacity for validity, in the sense that, if the principal party ratifies it, its validity becomes actual. But the option for an owner who has sold his property means that, for certain particular reasons and causes, he can dissolve the contract—for example, if there is a defect in the item sold or in the price, or if deception has occurred, and the like. Sayyid al-Murtaḑā, who holds to the option of rescinding the contract and states that the minor boy can dissolve the father’s contract, has regarded this as belonging to the first type—that is, the option that the principal party has with respect to an unauthorized action and the deed of the one who acted without authorization. Likewise, Shaykh al-Ṭūsī, in three books—al-Nihāyah, Tahdhīb, and Istibṣār—has held to the option of rescission. Moreover, Abū al-Ṣalāḥ al-Ḥalabī, in al-Kāfī; Ibn al-Barrāj, in al-Muhadhdhab al-Bāriʿ; Ibn Ḥamzah, in al-Wasīlah; Ibn Idrīs, in al-Sarāʾir; and Ibn Zuhrah, in al-Ghunyah, have held to the option. We have stated that, from the time of Muḥaqqiq al-Ḥillī onward, the bindingness of this contract gained renown; otherwise, before the late Muḥaqqiq al-Ḥillī, eminent jurists held to the option. There is, however, a point to be noted here, namely that whether all of these regard the option of the minor boy with respect to the marriage contract as belonging to the category of the option of the principal party with respect to an unauthorized contract, or not, is not very clear. We have stated that, in the traditions, this meaning of “option” is predominantly raised, but in the statements of the jurists, “option” has also been used in the second sense. In any case, a number of jurists, particularly among the earlier generations, hold to the establishment of the option for the minor boy with respect to the contract that his guardian has concluded on his behalf. However, as I have likewise indicated there, many regard this option as belonging to the category of the option of the principal party with respect to an unauthorized contract, which falls outside the scope of our present discussion. We are primarily discussing “option” in the second sense—like all instances in which an option is established with respect to a contract. This is the point I wished to indicate; now, setting aside who holds this position and who does not, we must examine the arguments for this position.