Issue 5, Second Position: Examination of the Establishment of the Option for a Minor Boy

Session Twenty-Five

Issue 5 – Second Position: Examination of the Establishment of the Option for a Minor Boy – Arguments for the Second Position – First Argument: Traditions – Fourth Tradition and Its Examination – Fifth Tradition and Its Examination – Second Argument: The Principle of “No Harm” – Examination of the Second Argument – General Conclusion

November 16, 2025

Fourth Tradition

The discussion concerns the arguments for the position of the non-bindingness of the marriage contract that the father or paternal grandfather has concluded on behalf of a minor boy before maturity. We have stated that the most important argument for the option of this boy after reaching maturity is the traditions; we have examined three traditions. The fourth tradition is the tradition of Abān, from Imam al-Ṣādiq (peace be upon him): “From Abān, from Abū ʿAbd Allāh (peace be upon him), who said: When a man marries off his son, that is a matter for his son [to decide]; but when he marries off his daughter, that is valid [upon her].” According to this tradition, the son has discretion with respect to the father’s marrying-off; it states: “that is a matter for his son [to decide]”; but with respect to the daughter, it states: “that is valid [upon her]”—that is, if the father marries off the daughter to another, it is effective, and the daughter has no discretion. Our discussion concerns the son; here, “son” (ibn) is unqualified—that is, it encompasses both the mature and the immature. Therefore, the unqualified scope of this tradition, and the fact that it has entrusted the decision regarding this marriage to the son—whether he has reached maturity or not—indicates the establishment of the option. It is true, however, that there is a difference here between the minor and the mature; it is true that, according to this tradition, discretion has been given to the son, but, with respect to the minor, the validity of the contract is contingent upon this son’s ratification after reaching maturity, and the option of rescission pertains to a contract that possesses actual validity. But with respect to a mature son, if his father marries him off to another, this contract is unauthorized (fuḑūlī); because the father has no guardianship over a mature son in the matter of marriage. Therefore, his permission or rejection is, in fact, like the discretion that the principal party (aṣīl) has with respect to an unauthorized contract. Therefore, according to this tradition, the minor boy, after reaching maturity, has the option of rescinding the marriage.

Examination of the Fourth Tradition

An objection has been raised to invoking this tradition as an argument; the objection is that the apparent sense of the phrase “that is a matter for his son [to decide]” is that the son has discretion at that very moment; it does not say that he acquires discretion later. This is an indicator that what is meant by “son” in this tradition is the mature son; the tradition wishes to say that if a father marries off his mature son to a girl, everything is at the son’s discretion; he can, at that very moment, either confirm and ratify the contract or rescind it. Therefore, it does not encompass the minor and immature child. In other words, the objection is that this tradition has no unqualified scope; the arguer, relying on the unqualified scope of the tradition, claimed that this tradition encompasses both the immature son and the mature son; therefore the main support of the arguer for establishing the option in the case of the contract of a minor boy is the unqualified scope of this tradition. But the objection is that this tradition has no unqualified scope; we have an indicator that what is meant by “son” here is the mature son. The indicator is that “that is a matter for his son [to decide]” carries the apparent sense that this discretion is established for the child at that very moment, not that he has the discretion to rescind this contract after reaching maturity. Therefore, it does not encompass an immature son.

Question:

Professor: The apparent sense of “that is a matter for his son [to decide]” is that, at that very moment and as soon as he becomes aware, he has the right to dissolve the contract; whereas, with respect to the minor, this is not so, and he has this discretion only after reaching maturity. Sometimes it is said, “that is a matter for his son” at this present time, or it is said, “that is a matter for his son” after reaching maturity; the customary apparent sense of the sentence “that is a matter for his son [to decide]” is that he has discretion from this very moment, and it is not contingent upon a later time after maturity, and this indicates that the subject of this ruling is the mature son, not the immature one. This is especially so when we take into account that, in the past, marrying-off was customary for daughters—that is, daughters were ordinarily married off to another without their knowledge and without their view being sought. But this practice was not very customary with respect to sons. Therefore, the very predominance of this practice serves as a corroboration and supporting evidence that the question concerns a mature son.

Fifth Tradition

The fifth tradition is the tradition of al-Faḑl ibn ʿAbd al-Malik: “From al-Faḑl ibn ʿAbd al-Malik, who said: I asked Abū ʿAbd Allāh (peace be upon him) about a man who marries off his son while he is a minor. He (peace be upon him) said: There is no problem.” This is supporting evidence for precisely the matter I have just stated; if what was meant were a mature son, no indicator would be mentioned, because “son” carries the apparent sense of that meaning. But here, because the question concerns an immature child, “while he is a minor” has also been mentioned. “I said: Is the father’s divorce [on his behalf] valid? He (peace be upon him) said: No.” Can the father, just as he marries off the son to another, also divorce him [on his behalf]? The Imam (peace be upon him) said: no. “I said: Upon whom is the dower? He (peace be upon him) said: Upon the father, if he has guaranteed it for them; and if he has not guaranteed it, it is upon the boy, unless the boy has no property, in which case the father is the guarantor of it, even if he had not [previously] guaranteed it.” I said: upon whom is the dower incumbent? The Imam (peace be upon him) said: if the father has undertaken to guarantee it, the dower is incumbent upon the father; but if the father has not undertaken to guarantee it, this is incumbent upon the minor boy himself, unless the boy has no property, in which case the father is the guarantor, even if he had not undertaken to guarantee it from the outset. “And he said: When a man marries off his son, that is a matter for his son [to decide]; but if he marries off his daughter, it is valid [upon her].” The content of this tradition is like that of the tradition of Abān; it states: if the father marries off his daughter to another, this is effective and complete; but if he marries off his son, this is at the discretion of the child.

Examination of the Fifth Tradition

This tradition is likewise subject to the same objection that we raised regarding the tradition of Abān; the apparent sense of “son,” with the indicator that “that is a matter for his son [to decide]” means that he has discretion at this very moment, not after reaching maturity, points to the mature child; “son” carries the apparent sense of the mature child, and therefore this bears no relevance to our discussion, because our discussion concerns the establishment of the option for a minor boy who has been married off to another during minority, and whether the option is established for him after reaching maturity or not. Therefore, the tradition bears no relation to our present case.

Conclusion of the First Argument

Up to this point, we have mentioned five traditions regarding the position of the non-bindingness of the contract with respect to the marriage of a minor boy; some traditions had a problem with respect to their chain of transmission, and some had a problem with respect to their indication. Perhaps this meaning can be derived from only one tradition.

Second Argument: The Principle of “No Harm”

The second argument is the principle of “no harm” (lā ḑarar). Some of the eminent scholars have invoked this argument, such as the author of Ghāyat al-Marām, and many have followed them and have mentioned this argument. We shall set forth the argument to determine whether it can establish the option for the minor boy or not. The argument is that, if the option is not established for the son, this results in harm; but harm is negated; therefore the option is established for him. That is, this is a hypothetical syllogism (qiyās istithnāʾī); it states that, if the option is not established for this boy, harm accrues to him. The second premise is the very major premise of “no harm.” Therefore, the conclusion is that the option is established for him. In this hypothetical syllogism, there is no discussion regarding the second premise; the second premise is the very principle of “no harm.” But the first premise must be established for the argument to be complete. The first premise is that, if the option is not established for the minor boy, this entails harm to him—that is, an implication exists between the non-establishment of the option and harm to the son. The arguer states that the boy, after marriage, acquires obligations, the most important of which are the dower and maintenance (nafaqah); by virtue of marriage, the man is obligated both to pay the dower and to provide maintenance, whereas the daughter, after marriage, has no obligation whatsoever. Therefore, if his father marries him off to another and he has no right to dissolve this marriage, he sustains loss and harm, because he must pay the dower and provide maintenance. Therefore, in order for him to be able to ward off such harm from himself, this option is established for him. This is the substance of the argument from “no harm”; a hypothetical syllogism whose second premise is the very principle of “no harm,” which is an accepted major premise that no one disputes; we have also explained its first premise.

Examination of the Second Argument

This argument is also beset with several objections:

First Objection

Whether this constitutes harm is itself open to discussion. It might be said that this is not harm, because, in exchange for this dower or maintenance, there is, in any case, a counterpart (muʿāwad); if, on the one hand, this person must pay the dower and maintenance, on the other hand, he has someone as a wife who has likewise given something in exchange for the dower and maintenance; its counterpart is the marital relation (biḑʿ) and the man’s right of consummation; its counterpart is that, in any case, she comes under this man’s authority. Therefore, whether this constitutes harm—and that, too, of the kind of harm encompassed by “no harm”—is open to discussion.

Second Objection

The statement that the woman sustains no harm, and therefore the option is not established for her, is itself the point at issue (awwal al-kalām); because, as has been indicated, the woman too, in marriage—which is perhaps more analogous to exchange transactions (muʿāwaḑāt) than many other contracts—has given something in exchange; the man must pay the dower and provide maintenance, and the woman, in exchange for this, must surrender herself; therefore, the occurrence of harm is not confined to the man, but can be conceived with respect to the woman as well.

Third Objection

Let us suppose that the non-establishment of the option entails harm, and let us grant that harm is realized only with respect to the boy; but is the option established here with respect to an actually valid contract, or with respect to an unauthorized contract? Why do we raise this question? Because, given the existence of that harm, the ultimate result is that guardianship becomes problematic—that is, the father or paternal grandfather has concluded a contract for this minor boy that entails harm, and the condition of the absence of corruption is not present in it; if this is the case, we have stated that this contract becomes like the contract of someone counted as a stranger, which is unauthorized; here, the father has no particular distinction. If the contract becomes unauthorized, then, like other unauthorized contracts, the principal party has the right to either ratify or reject that contract; we have stated that the option with respect to an actually valid contract differs from the option with respect to an unauthorized contract. The present claim is the establishment of the option with respect to an actually valid contract—that is, whether the minor boy, after reaching maturity, has the right to dissolve this valid contract or not; whereas here, even if harm is established, the result is the establishment of the option with respect to an unauthorized contract. Therefore, the argument is extraneous to the claim (ajnabī ʿan al-muddaʿā). Therefore, the third objection is that, granting that we set aside the two previous objections, we are faced with a further problem, and therefore this argument cannot establish the claim; because, given the harm and the supposition of harm to the minor boy, guardianship is lost—that is, the father who concluded this contract had no guardianship whatsoever; guardianship falls short of being able to conclude such a contract. In this case, the father is like an unauthorized person and had no right to conclude such a contract. If a stranger marries off someone to another, that person had the right to dissolve the contract; but this is the option established with respect to an unauthorized contract, not a contract that possesses actual validity. Therefore, the argument from “no harm” also cannot establish the option for the minor boy after reaching maturity.

General Conclusion

Up to this point, we have mentioned two main arguments: one, traditions, and the other, “no harm”; the traditions, on the whole, had problems and could not establish the option. “No harm” likewise could not establish it. The result is that we must revert to the requirement of the general rules and unqualified statements; the requirement of the general rules and unqualified statements is bindingness. Therefore, just as the option is not established for the minor girl after reaching maturity, it is likewise not established for the minor boy after reaching maturity. This is the very matter that the Imam, in the text of Taḥrīr, has stated.