Issue 6, Second Supposition, Arguments for the First Position: The Validity and Bindingness of the Contract and the Dower

Session Twenty-Eight

Issue 6 – Second Supposition – Arguments for the First Position: The Validity and Bindingness of the Contract and the Dower – Examination of the Second and Third Arguments – Fourth Argument and Its Examination – Fifth Argument and Its Examination – Sixth Argument and Its Examination – Seventh Argument and Its Examination

November 30, 2025

Summary of the Previous Session

The discussion concerned the arguments for the position of the validity and bindingness of both the contract and the dower, in a case where a minor boy or minor girl is married off by the guardian to someone for less than the customary dower (in the case of the daughter) or more than the customary dower (in the case of the son). We stated that, where there is benefit in this marrying-off with respect to the dower as well, there is no discussion; but if there is no such benefit, three positions exist. From the first position, up to this point, we have mentioned three arguments; the first argument was examined and answered. The second argument was a verse whose general scope was invoked to establish validity; the third argument was traditions. We transmitted two traditions, by which the arguer sought to establish validity.

Examination of the Second and Third Arguments

These two arguments (the verse and the tradition) likewise cannot establish validity. Regarding the verse, “And if you divorce them before you have touched them, but you have already specified a portion for them, then [give them] half of what you specified,” it was said that the failure to distinguish between a case where [the dower] is less than, equal to, or greater than the customary dower indicates that, if a lesser or greater amount than the customary dower is stipulated in the contract, then, according to the general scope of this verse, the contract is valid and binding, and the dower too is effective. Two traditions were also transmitted here. However, neither this verse nor these two traditions indicate validity; because, fundamentally, the verse is not in the position of stating [the full intended meaning] in this respect. The verse wishes to say that, if you divorce your wife before consummation, you must give her half the dower; but whether what you have stipulated is acceptable under all circumstances—the verse is not in the position of stating [the full meaning] in this respect. The verse only wishes to state the ruling for the unconsummated wife, namely that her dower is half of what was stated in the contract—that is, half of the stipulated dower (mahr al-musammā). But whether the stipulated dower, in whatever form and under whatever circumstances, even in the supposition under our present discussion, is acceptable or not—the verse is not in the position of stating [the full meaning] in this respect. Therefore, this verse does not indicate the validity and effectiveness of the stipulated dower. The same applies to those two traditions; in the first tradition, the Imam stated that whatever the families have mutually agreed upon must be paid; that which they have agreed upon must be given, and anything other than this is not acceptable. This, too, concerns the basic necessity of paying the dower; the dower is one instance [of this principle]; every covenant, pact, and contract that is mutually agreed upon must be honored, one instance of which is the dower. But this does not encompass the supposition under our present discussion, where the very fact of mutual agreement is itself open to discussion; it is true that the guardian of the daughter has accepted it, but he has not done this for the sake of benefit; because the supposition is that there is no benefit in this dower. Therefore, the validity and effectiveness of the dower cannot be derived from this tradition; and likewise the second tradition. It is possible that the second tradition is so because he is the Messenger of God, and, with respect to the Messenger of God (peace be upon him), there may exist a specific ruling—for example, that his daughters be married off for less than the customary dower. Therefore, the second and third arguments do not indicate the first position.

Fourth Argument

Marriage is not an exchange transaction (muʿāwaḑah); an exchange transaction is conceived where something possessing monetary value is set against another thing. Is the marital relation (biḑʿ) truly, in reality, property (māl)? It is not at all correct that the marital relation should be set against the dower. Shahīd al-Thānī, in Masālik, raises this very matter, stating that marriage, in reality, is not an exchange transaction, or, in other words, laysa muʿāwaḑatan maḥḑah—it is not a pure exchange transaction. It is listed among exchange transactions and dealings, but it is not, in reality, a pure exchange transaction; therefore the dower is not set against it. The primary purpose of marriage is the preservation of lineage, the preservation of chastity and protection (taḥaṣṣun), and the like. Therefore, since the dower is not the [primary] objective, and the basic purpose is the preservation of lineage and protection, this contract is valid and binding, and that very stipulated dower must also be paid.

Question:

Professor: There is disagreement regarding the definition of property—what is termed “property.” Some say: property is that for which property is paid (al-māl huwa mā yubdhal bi-izāʾihi al-māl); an objection has been raised here that this is circular—you wish to define “property,” and in the definition of “property” you use the word “property.” Others have offered different definitions; the definition we have accepted is that property is whatever rational agents (ʿuqalāʾ) desire and for which they are prepared to pay something—anything that rational agents desire and for which they are prepared to give something in exchange. … This characteristic may indeed exist, but we say it is not, in reality, property—that is, the reality of marriage is not that money is given in exchange for it; it can be in exchange for other things [as well].

Fifth Argument

The fifth argument is, in fact, the same as the fourth argument, but stated in a different manner. The primary purpose in marriage is the preservation of lineage and the restraint of the self from desire; the dower is counted as a secondary and subordinate element for this; therefore, it is not, in the true sense, an operative factor in marriage. In other words, the establishment of the marriage is not contingent upon the dower; because the primary objective of marriage is the preservation of lineage and the restraint of the self from desire; and everything whose establishment is not contingent upon the establishment of a certain thing, the absence of that thing has no effect upon its non-establishment. Here, the establishment of the marriage is not contingent upon the dower; therefore, the absence of the dower likewise has no effect upon the non-establishment of the marriage.

Question:

Professor: It does not say it is invalid; it says that this dower, even if not satisfactory, creates no problem; therefore both the contract and the dower are valid. Their argument is that the basic contract, with all its elements, is realized, and the dower is a subordinate and secondary matter; therefore, even if the dower does not conform to his view, there is no problem, because the basic contract possesses benefit and has no problem whatsoever. Even if, in your view, there is a problem with the dower, this creates no defect and is free of corruption; therefore, both the contract and the dower are valid. Thus, there is no obstacle to the validity of the contract and the dower, because there is no corruption in it. … That was a general major premise; their argument is that everything whose establishment is contingent upon the establishment of a [different] thing—its absence has no effect upon the non-establishment [of the first thing]. They do not wish to say that it should not exist at all; they say that if that desired dower does not exist, this creates no defect in the contract; because the supposition is that there is a dower, only this dower is less than the amount that would ordinarily be set for a girl such as this one.

Examination of the Fifth Argument

This argument too is open to objection. How can it be said that this contract is entirely possessed of benefit and contains no corruption whatsoever? After all, the guardian has married off the daughter to another on the basis of a benefit present in the contract itself; but to say that this contract is free of corruption is not correct. After all, a dower less than the customary dower carries a certain corruption; we cannot deny this corruption. The fact that someone is prepared to marry this girl for a greater dower, while here a lesser dower has been set for her, and the supposition is that there was no benefit in this—this certainly carries corruption. How can we say that this dower is valid? Therefore, the fifth argument too is not acceptable.

Sixth Argument

The sixth argument is that, if the guardian of the daughter has married her off to another, he was authorized by the Lawgiver; the Lawgiver has established this guardianship for him, such that he can marry off the daughter to another. Therefore, the guardian is legally authorized in the contract, and the supposition, too, is that this husband is a fitting match (kafū) for this daughter; because there is no problem in the basic marriage. The dower, too, is not a condition for the validity of the contract; therefore it can be either less or greater.

Examination of the Sixth Argument

This argument too is open to objection. It is true that the guardian is authorized and has guardianship over the minor girl to marry her off to another, and this guardianship is established according to the Sacred Law; it is likewise true that he has observed benefit in the basic marrying-off; but the guardian’s authorization is not without restriction and framework. At the very least, there must be no corruption in this marrying-off; otherwise, if he wishes to marry off this daughter despite the existence of corruption, his guardianship is forfeited; he no longer has guardianship with respect to such a marriage. Therefore, his authorization is established within a certain framework; among the matters that bear upon the authorization and fall within the scope of what is authorized is the dower. Why should we exclude the dower from the scope of authorization? Authorization has also been given to the father or paternal grandfather—but for a marrying-off in which benefit is taken into consideration. After all, if the dower is less than the customary dower, this, as it were, falls outside the scope of the legal authorization.

Seventh Argument

The seventh argument, which some may regard as better than the other arguments, is the implication by way of priority (mafhūm al-awlawiyyah) derived from the verse, “Or he in whose hand is the marriage tie forgoes [his right].” This portion of the verse is, in fact, a continuation of the very verse we read at the beginning of the discussion: “And if you divorce them before you have touched them, but you have already specified a portion for them, then [give them] half of what you specified, unless they forgo it, or he in whose hand is the marriage tie forgoes it; and to forgo is closer to righteousness; and do not forget graciousness between yourselves; indeed, God sees what you do.” The meaning of “he in whose hand is the marriage tie” is clear; it means the guardian. It states that the guardian can, in the case of the divorce of an unconsummated wife, forgo a portion of her dower; this is the explicit statement of the Qurʾānic verse. If an unconsummated woman is divorced, the guardian of the daughter can forgo a portion of the dower. The author of Īḑāḥ al-Fawāʾid has here advanced an argument, stating: since the guardian can remove (rafʿ) something already established—that is, a dower that has been set and is fixed can be forgiven by the guardian—then, all the more so, he can, from the outset, agree to less than this and marry off the daughter accordingly. The fact that he can later forgive a portion of the dower means that, all the more so, he can, from the outset, set a lesser amount for the dower; because, if a dower has been set, here he must remove it; but if, from the outset, he sets a lesser dower, he is, in fact, preventing (dafʿ) it from arising; prevention requires less effort than removal. Therefore, if the removal of the dower (even a portion of it) is permissible, then, all the more so, preventing it [from arising in the first place] is permissible.

Examination of the Seventh Argument

As I have stated, this argument is mentioned in the statements of Fakhr al-Muḥaqqiqīn, and, of course, others after him have also transmitted it; we see many of these arguments in later books. This argument too is incomplete; because perhaps this ruling was legislated for one specific case, contrary to the general rule; if it is contrary to the general rule, we cannot extend it and establish this ruling in other cases—especially here, where the matter of loss and harm is also at issue, because the supposition is that there is no benefit whatsoever in it. Therefore, in light of the arguments that will be advanced later as well, according to the general rule, this dower ought not to be accepted. Therefore, altogether, the arguments for the first position cannot establish the validity and effectiveness of the dower.