Issue 6, Second Supposition, Third Position: The Validity of the Contract and the Invalidity of the Dower

Session Thirty-One

Issue 6 – Second Supposition – Third Position: The Validity of the Contract and the Invalidity of the Dower – Arguments for the Third Position – First Argument and Its Examination – First and Second Objections and Their Examination – Third Objection – Second Argument – Objection and Response

December 7, 2025

Summary of the Previous Session

The discussion concerned the arguments for the third position; we stated that the Imam (may God’s mercy be upon him), in Taḥrīr, holds, like the late Shaykh [al-Anṣārī], that if the guardian marries off a girl for less than the customary dower, or a boy for more than the customary dower, the contract is valid but the dower is invalid; invalidity, too, means that it is contingent upon ratification after reaching maturity. Arguments have been advanced for this claim; the first argument was stated. The substance of the first argument was that, when the marriage contract is performatively constituted, it is, in effect, equivalent to two performative utterances: one, the basic marriage and marrying-off, and the other, the dower. If the dower encounters a problem, the other remains in full force; therefore the contract does not become invalid. But the dower is contingent upon the ratification of the husband or wife after reaching maturity; if he ratifies it, it attains fixity; otherwise, recourse is had to the customary dower.

Third Objection

A further objection is raised regarding this argument, which, in fact, is the very same argument that those who hold to the invalidity of both the contract and the dower have stated. The objection is that the benefit that is authoritative in the marriage contract—the benefit that the guardian must take into consideration in the marriage of a minor boy or minor girl—is considered with respect to the totality of these two matters, not with respect to each part of the contract separately. In other words, when the guardian wishes to marry off this daughter or son to another, he regards this marriage, as a whole, as possessing benefit, and marries him or her accordingly. This whole, taken together, either possesses benefit in the guardian’s view or does not; if there is benefit in the totality of this contract and the dower, then this contract is valid, and the dower too is valid and binding; but if one part of it has corruption, or lacks benefit (such as the dower), this corruption spreads from this part to the other part, and causes the totality to become invalid. Therefore, we cannot separate the contract from the dower; the guardian must take into consideration the benefit of the daughter or son, and this benefit, with respect to the whole, either exists or does not exist. The claim that it dissolves into two matters (yanḥall ilā amrayn), and then the claim that there is benefit in one matter and one part but not in the other, and that the part lacking benefit becomes invalid without [affecting] the other—this is not acceptable. When one part becomes corrupt, it spreads and corrupts the other part as well. This is the objection raised against the first argument.

Response

In light of the explanation we have given in setting forth the first argument, it appears that this objection is answerable. We have stated that, from the perspective of common usage (ʿurf), we can regard this single performative utterance and contract as being, in effect, equivalent to two performative utterances; because two objects sought (maṭlūbān) can be conceived in this matter. If we regard our present case as belonging to the instances of multiplicity of object sought (taʿaddud al-maṭlūb)—meaning that one object sought is the basic marriage and the other object sought is the amount and measure of the dower—then, if one object sought is not fulfilled, why should the other object sought be harmed? What real difference is there between our present case and the sale of that which can be owned together with that which cannot be owned? How is it claimed, there, that the sale is invalid with respect to that which cannot be owned, but valid with respect to that which can be owned? They say it is because common usage and rational agents regard this as equivalent to multiple performative utterances. In the previous session, we also stated that the same is possible in marriage; one is the basic marriage, which is desired, and the other is the dower, which is not [necessarily] desired in this specific amount; if the dower is impaired, on what basis would this spread and destroy the basic contract? Therefore, the basic premise must be adopted correctly; we hold that, from the perspective of common usage and rational agents, this single performative utterance and marriage is, in effect, equivalent to two performative utterances, and the argument for this is that there are two objects sought here.

Second Argument

The second argument of those who hold to the validity of the contract without [the validity of] the dower is that “no harm” (lā ḑarar) is operative only to the extent necessary to remove the harm; in other words, on the authority of “no harm,” the invalidity of the dower is established, without the contract sustaining any damage. Of course, “no harm” in some cases results in the invalidity of the contract, and that is where the basic contract itself is harmful; but in some cases, “no harm” establishes only the option of rescission (khiyār al-faskh) and does not damage the contract. If, in a given case, the basic contract is harmful, the basic contract becomes invalid by virtue of “no harm”; but, for example, in a transaction involving deception (bayʿ ghabnī), the basic sale is not harmful; rather, the harm exists only with respect to the deception and the gross discrepancy between the real value of the item and the agreed-upon price. Here, “no harm” results in the establishment of the option of rescission for the buyer or seller, and, on this authority, they can dissolve the contract. Therefore, the criterion and standard in “no harm,” and in determining whether, on its authority, the contract can be rescinded or not—whether the option is established or not—is whether the basic contract itself is harmful or not. It is possible that the basic contract is not harmful, but that the obligation to fulfill the contract is harmful. In a transaction involving deception, if we oblige the buyer to fulfill this sale, he sustains harm; therefore the obligation [to fulfill it] is removed, to the extent necessary to remove the harm. In our present case as well, the marrying-off for less than the customary dower results in harm to the daughter, but only with respect to the dower; this does not result in the basic contract being harmful or possessing corruption. Therefore, there is no reason for the basic contract to become invalid; that which is the source of the harm is the obligation to pay the stipulated dower (mahr al-musammā). “No harm” removes the obligation to pay the stipulated dower and establishes the option for this girl, so that she can reject this dower if she does not wish to accept it. In any case, here it is not the case that the basic contract is harmful; the only problem is with respect to the obligation regarding the dower, and “no harm” removes the obligation regarding the dower. Therefore, there is no reason for us to say that the contract is invalid. Therefore, the second argument too can corroborate and establish the third position—that the contract is valid and the dower is invalid.

Objection

An important objection may be raised regarding this argument; the objection is that, if we wish, on the authority of “no harm,” to remove the obligation regarding the dower and hold that the contract is valid (meaning that the minor boy or minor girl is not obligated to the stipulated dower, but rather they can, after reaching maturity, either ratify or reject this dower; if they reject it, recourse is had to the customary dower), this conflicts with the harm on the other side. You wish, on the one hand, by means of “no harm,” to remove the harm directed at the minor boy or minor girl by establishing an option for him/her and invalidating the dower; but this results in harm to the other party. For example, if a daughter has been married off to a man for less than the customary dower, according to this view, the contract is valid, and this daughter, after reaching maturity, can reject the dower. If she does not ratify the dower, recourse is had to the customary dower. This increase of the dower from the stipulated amount to the customary amount results in harm to the husband; for example, the stipulated dower was one million tomans, but the customary dower is two million tomans; when you give the daughter this right—to refuse the one million tomans mentioned in the contract and reject it, with recourse being had to the customary dower, i.e., two million tomans—here the husband sustains harm, having to pay an additional million. The same applies on the boy’s side; suppose the guardian has married off the son to a girl for more than the customary dower—for example, the customary dower was two million tomans, but he has married off the son to the girl for three million tomans. Now, after reaching maturity, this son comes and rejects the stipulated dower, saying three million is too much, and recourse is had to the customary dower, that is, two million tomans. If we hold that this right is established for the son—that he can reject the dower and have recourse made to the customary dower—the wife sustains harm; because the amount of dower set for her is reduced. Until now, her dower was more than the customary dower, but now it becomes less, and must be reduced to the customary amount. Therefore, here the daughter sustains harm. Therefore, although the principle of “no harm” removes the harm created for the minor boy or minor girl with respect to the dower, by removing the obligation regarding the dower, this very principle of “no harm” also blocks the harm inflicted upon the other party; the other party, too, must not sustain harm; if, on the one hand, “no harm” comes to the assistance of this minor boy or minor girl, on the other hand, it must also come to the assistance of that husband or wife. Therefore, the result is that, since that great harm directed at the other party is irreparable, we must rule the contract invalid—that is, we must say that both the dower and the contract are invalid. This is because the supposition here is not that they reach an agreement and consider a new dower; according to the supposition, we are discussing this very same contract—whether this very contract is valid or not. A dower has been set as the stipulated dower; it is said that the daughter or son, after reaching maturity, either ratifies this stipulated dower or does not ratify it. If they ratify it, there is no problem, and this contract continues in the same manner; but if they reject it, it does not say that they should determine a new dower; rather, it says that recourse is had to the customary dower. With the rejection by the minor boy or minor girl after reaching maturity, the dower automatically converts to the customary dower. Here, no such discretion is established for the other party to say that he does not accept this and to dissolve it; the supposition is that that contract is valid and binding upon him, and he is obligated by the basic contract and cannot dissolve the contract; he cannot say, “I concluded the contract on the basis of this dower; now that it has been converted to the customary dower, I do not accept this and do not want it.” This is not so; because the basic contract is obligatory; here, only the obligation regarding the dower has been removed, and that too only for the minor boy or minor girl—if the girl’s dower is less than the customary dower, or the boy’s dower is more than the customary dower; only for these two has the obligation regarding the dower been removed. They can accept the same [amount]; but if they do not accept it, recourse is had to the customary dower. But what about the other party? He has no discretion whatsoever—neither regarding the dower nor regarding the contract. If the stipulated dower is reduced to the customary dower, the daughter has no option of rescission, because there is no option in marriage (lā khiyār fī al-nikāḥ) except in specific cases. Therefore, she must submit to a marriage whose dower has become much less; because it is possible that her stipulated dower was tenfold, and now this boy has grown up and says he will give the customary dower, and here the dower is reduced to one-tenth. According to the third view, this daughter sustains great harm and must submit to this marriage as well and be satisfied with the dower; there is no way whatsoever to remedy this great harm directed at this girl; she must submit to a marriage whose dower has become less than what was previously stated—for example, reduced to one-tenth. Therefore, because holding to the validity of the contract together with the invalidity of the dower results in a great harm to the other party, and there is no way to remedy it, we must say that the contract too is invalid.

Question:

Professor: You wish to say that the objection is not sound? That is, the claim that, if the dower becomes invalid, this ultimately results in a great harm to the other party—do you wish to say that this is not so? …

Response

It appears to us that this objection is not sound. The late Āyatullāh Ḥakīm, in a certain connection, has made a statement which I do not wish to enter into at present; he states that, in general, with respect to the daughter, if the dower is reduced from the stipulated amount, which is more than the customary amount, to the customary dower, this is not at all a harm to the daughter. This is because the basic dower is, for her, a kind of gain (ghanīmah); now, this gain is, at one time, more, and at another time, less. In fact, this is a loss of profit (ʿadam al-nafʿ), not harm (ḑarar). He states this with respect to the daughter; but this matter that he has stated cannot be accepted with respect to the son; because the son is the one who pays, and he must pay the dower. If the stipulated dower is less, he must, in any case, reach the customary dower; here the son is the payer, and we cannot say of him that he has gained some profit and that harm does not apply to him. In any case, harm applies to him. In any case, the substance of the matter is that a contract has been concluded, and the supposition is that the basic marital relation and marriage possesses benefit, or at least that there is no corruption in it; because we have made the absence of corruption a certain condition for guardianship. Therefore, the basic marriage has no corruption. But that, if the daughter is married off for less than the customary dower, and the son for more than the customary dower, harm is realized for each of them—this too presents no discussion. The way to ward off and remedy this harm is to remove the obligation regarding the dower—that is, to say that this dower is not effective, even when the minor boy or minor girl reaches maturity. There, it is at his own discretion; if he ratifies it, well and good; if he does not ratify it, recourse is had to the customary dower. The objection that these scholars raise is that this necessarily entails harm to the other party; but the matter is that there is no harm to the other party. As has been stated, if discretion regarding the dower were given to this boy or girl to set it however he or she wished, this might possibly result in great harm to the other party; but when recourse is had to the customary dower, and the type of boys or girls would, in a marriage of this kind, ordinarily set a customary dower, this is no longer harm. If discretion were given to him, he might set a high or low figure; here, harm could be realized. But when, according to the customary practice of society, a certain dower is set for the marriage of these two persons under these circumstances, it appears that the category of harm is not realized here. Therefore, it appears that the ruling that the Imam (may God’s mercy be upon him) has given here, following Shaykh al-Anṣārī, is correct, and what the late Sayyid, the late Āyatullāh Khūʾī, and certain others have held is not acceptable.

Question:

Professor: That contract is dissolved… the supposition is that this same contract is supposed to be valid; here, there is no intention to conclude a new contract. If they wished to agree upon a new dower, the same objection that some have raised would apply—namely, that what the offer and acceptance pertained to differs from what now exists. … It is a single performative utterance… this exits from that performative utterance… this has a different argument; in a case where the dower is not mentioned… for example, if the dower is not mentioned, or a corrupt dower is mentioned… they say this is a general rule (ḑābiṭah); if the stipulated dower, for whatever reason, is impaired, recourse is had to the customary dower. … This is premised on regarding that contract as invalid; why should we regard that contract as invalid? … Those who say the contract is invalid all hold this same view; they say that this person was satisfied with this contract on the condition of this dower; now that the dower has changed, and that person has proposed a new dower—that is, because these are a qualifying condition and a qualified thing, therefore that contract becomes invalid. We say this is not so; these are not a qualifying condition and a qualified thing; they are two objects sought, but the meaning of two objects sought is not that their performative constitution was also two performative utterances. No, it is the same performative utterance; only a defect has occurred in this one [element, i.e., the dower], and recourse is had to the customary dower. … You must either say the contract is invalid or that it is not invalid; if the contract is valid, he must accept it…