Issue 8, Examination of the Five Suppositions, Examination of the First Supposition

Session Forty-One

Issue 8 – Examination of the Five Suppositions – Examination of the First Supposition – Examination of the Second Supposition – Examination of the Third Supposition

December 29, 2025

Summary of the Previous Session

The eighth issue was explained in general terms in the previous session; we stated that this issue comprises five suppositions concerning the marrying-off, by the guardian, of the ward to someone who has a defect. Each of these five suppositions must be examined. In some suppositions, the contract is invalid from the outset; in some, the option is established for both; and in some, it is established only for the ward.

Examination of the Five Suppositions

Now we shall examine these five suppositions one by one.

Examination of the First Supposition

The first supposition, which was also indicated in the previous session, is a case in which the ward is married off to someone who has a defect, the guardian is aware of his defect, and there is also no benefit whatsoever in this. The text of Taḥrīr was: “If the guardian marries off the ward to one who has a defect, [the marriage] is not valid and is not effective, whether the defect is among those that necessitate the option or otherwise — such as being immersed in sins, or being a wine-drinker, or foul-mouthed, of bad character, and the like.” In this supposition, he has stated, “it is not valid and is not effective” — the contract and marriage are not valid and not effective. The argument for this matter is likewise evident; this is because the basic guardianship of the father or paternal grandfather is conditioned upon a certain qualifier called benefit; if benefit is taken into consideration, this contract is valid, and guardianship is, in essence, established. If, in a given case, benefit is not taken into consideration, but rather corruption is involved, guardianship is not established in that case. When guardianship is not established, the guardian, with respect to the ward, becomes like a stranger and has no right or discretion with respect to the ward’s marriage; therefore his contract is not valid. In this supposition, it makes no difference whether the defect of that person (the husband or wife) is among the defects necessitating the option or among those that do not necessitate the option. Even if there were no defect at all, such a marriage would be invalid; because we have previously stated that the guardian has the right to marry off the ward, but with one condition, namely that there be no corruption. As to whether there must also be benefit, there was disagreement; the predominant view was that there must simply be no corruption. If there is benefit, this is better; but the mere absence of benefit alone does not, by itself, result in invalidity; what results in invalidity is the presence of corruption. Therefore, even if [the ward] is married off to someone who has no defect at all, the marriage is invalid on account of its corruption. We stated that the expression of the late Sayyid, in al-ʿUrwah, is: “It is not permissible for the guardian to marry off the ward to one who has a defect, whether the defect is among those permitting rescission or not, because this is contrary to benefit.” The very marrying-off to someone who has a defect is contrary to benefit. The late Āyatullāh Khūʾī, in connection with this statement, has stated: “There is clear looseness in this expression, and what is meant by it is the existence of corruption, as the correspondence between the ruling and the subject matter requires.” He states that the expression “contrary to benefit” is loose; what is meant is the existence of corruption. That is, he states that the very marrying-off to someone who has a defect carries corruption, unless there is a binding benefit involved — that is, a stronger benefit that overshadows this corruption. If we say that the very marrying-off to someone who has a defect carries corruption, this naturally results in the forfeiture of guardianship in this case; therefore his marrying-off is not valid and is not effective. In any case, the ruling for the first supposition is entirely clear and evident; you have observed the argument for it as well.

Question:

Professor: There is a discussion in the chapter on marriage as to whether the unauthorized [contract] (fuḑūlī) has scope in marriage or not; if we accept the operation of the unauthorized [mechanism] in marriage in a general manner, “it is not valid” means it does not have actual validity and is not effective. This depends on whether [the guardian] is treated like a stranger, such that there is no longer any difference between guardian and non-guardian; if it is so, there is no problem. But in other instances, where, for example, it is stated that the option of rescission is established, this indicates actual validity… guardianship is conditioned upon benefit… yes, but it has a condition, and that condition is the existence of benefit… in this case, he has no guardianship — not that it is entirely forfeited; in this case, because benefit has not been observed, he therefore, as it were, has no guardianship with respect to the marriage… if he observes benefit… not that it is entirely forfeited and he cannot marry [the ward] off at all… it is not that he forfeits it himself; it becomes forfeited… except for the guardianship of the Muslim ruler, the guardianship of the jurist (walāyat al-faqīh)… the jurist must possess certain conditions; if he loses some of these conditions, this guardianship automatically becomes forfeited from him; this is evident. Because this guardianship has been established in a qualified manner and is not unqualified, such that it would be established for the father and paternal grandfather under all circumstances.

Question:

Professor: That is, it means it does not have actual validity; but what about contingent validity? This is open to discussion. There too, we stated that the guardian becomes like a stranger… here too, this guardianship becomes, as it were, forfeited, and he becomes like a stranger. If we accept the operation of the unauthorized [mechanism] in marriage in a general manner (apart from cases where permission has been granted), here, naturally, it can become effective with his ratification. This negates actual validity [only].

Examination of the Second Supposition

The second supposition was: “unless there is a binding benefit in marrying him off to such a person; and in that case, neither the guardian nor the ward has the option of rescission, if the defect is not among those defects that permit rescission.” The second supposition is one in which the guardian has knowledge of the defect of the person to whom he has married off the ward, but, on account of a binding benefit — a stronger benefit relative to these defects (the defect, too, not being among those defects permitting rescission and necessitating the option) — he has concluded the contract; this becomes the second supposition. In this supposition, he states, “neither the guardian nor the ward has the option of rescission” — in this supposition, the contract is valid and effective, and neither the guardian himself nor the ward has the option of rescission. The argument for this is also evident; the argument is that the general rule requires validity, and we have no explicit textual evidence to the contrary. First, the guardian had discretion with respect to the marrying-off of this person and had guardianship for this action; we have previously stated that, if the guardian marries off the ward, neither he himself nor the ward has the option of rescission. Therefore, the underlying cause exists, and the impediment is absent. You might say that this person had a defect; the response is that there was a binding benefit involved, such that these defects have no importance relative to that benefit. For example, for the preservation of the daughter’s life, for the preservation of the daughter’s property, for the preservation of the health of the daughter or son, he has submitted to this matter. The defect, too, is not among the defects permitting rescission. Even if he himself had married and encountered this defect, he would have had no right to dissolve the marriage; naturally, the guardian, too, who undertakes this action, has no right to dissolve it. Therefore, in contrast to the first supposition, a ruling of validity, effectiveness, and bindingness of this marriage contract is given, and the option is not established for either the guardian or the ward, and the argument for this has become clear. The guardian had discretion, and benefit existed, and the defect, too, is not among those that necessitate the option; even if the person himself had directly undertaken the marriage and had encountered these defects, he would not have had the option of rescission — let alone in this case, where the guardian has married him or her off to another. Therefore, the ruling for the second supposition, too, is clear.

Examination of the Third Supposition

The third supposition has a certain amount of discussion; the text of Taḥrīr is: “But if it is among them, the apparent view is that the option is established for the ward after he reaches maturity” — if the defect is among the defects necessitating the option and permitting rescission, the option is established for the ward after reaching maturity. The third supposition is one in which the guardian has knowledge of the defect, and knows that this boy or girl has a defect; there is also a binding benefit; but, unlike the second supposition, the defect is among the defects necessitating the option. If this person had married himself off to another and had observed such a defect, he would have had the right of rescission. The Imam (may God’s mercy be upon him) states that the apparent view is that the option is established for the ward. This indicates that there is also another position on this matter, namely the non-establishment of the option. The late Sayyid has explicitly referred to this matter; he states that, in this supposition, two possible views exist; he mentions both views; he states, of course, that the establishment of the option is more cogent (awjah). The statement of the late Sayyid is: “But if it is among them” — that is, among the defects permitting rescission — “then, with respect to the establishment of the option for the ward after his reaching maturity or recovery [of his senses], and its non-establishment…” — that is, with respect to the establishment of the option and its non-establishment… What is the argument for the non-establishment of the option? The argument for the establishment of the option is clear: the existence of defects permitting rescission. But why should the option not be established? “Because the supposition is that the guardian has acted with knowledge of it” — the guardian has undertaken this marriage with knowledge and awareness of the defects; why should the option be established? If he had not known, the option would have been established; but now that he has acted with knowledge and awareness, here the option is not established. “The more cogent of the two is the first” — of these two views, the more cogent is the first — that is, the establishment of the option. “Because of the unqualified scope of the evidences for those defects, and its [i.e., this case’s] falling short, [being treated] in the manner of his ignorance” — because the evidences for these defects, by which the option can be established, are unqualified — that is, they encompass whether he had knowledge or not. Therefore, this encompasses our present case as well, because, although it is true that he knew but was negligent and did not attach importance to it, this too is, in effect, treated like ignorance. “And the guardian’s knowledge and his observance of the benefit do not result in the forfeiture of the option for the ward” — now, the guardian knew, and there was also benefit, but on what grounds should this strip the ward of the option? After all, [the spouse] had a defect, and he/she does not wish to live with this person for a lifetime. “And the most that benefit can yield is merely the validity of the contract; therefore the evidences for the option remain in their state” — the most that this benefit can yield is that this contract is valid; therefore, the evidences for the option remain as they are. The late Sayyid, in certain instances, has interwoven the legal ruling (fatwā) with argumentation, and this is one of those instances where he has also stated a relatively detailed argument. Up to this point, with respect to the legal ruling, the Imam (may God’s mercy be upon him) has stated: “the apparent view is the establishment of the option”; the late Sayyid, too, has stated, “the more cogent of the two is the first” — that is, the establishment of the option for the ward. Here the late Sayyid goes a step further, stating: rather, it is possible that the option be established for the guardian as well; “Indeed, it is sometimes possible that the option is established for the guardian as well” — this does not appear in the text of Taḥrīr; he states that, in addition to the option being established for the ward, it is possible that we should say it is established for the guardian as well. On what grounds should it be established for the guardian? “From the perspective of the discharge of the right that belongs to the ward” — on the grounds that the guardian has a duty to discharge the right of the ward, and this is one way of discharging it; why should we block this avenue and close it off? Now, the guardian was negligent and remiss and married him/her off; why should we say that you cannot dissolve it, that you must wait for him/her to decide once he/she reaches maturity? It is even possible that we should say that the guardian himself, too, has the option. Of course, he then states a further matter, which likewise does not appear in Taḥrīr: “And whether he has the right to forfeit it or not is problematic, unless there is a binding benefit for this” — can he forfeit this right of option? That is, can the guardian strip this right from himself? He states that it is problematic to say that he can do this — unless, in this very matter as well, there is a binding benefit — that is, there is also a benefit in forfeiting the option; otherwise, it makes no sense, and even the guardian himself cannot strip this right from himself. These two points, which appear here in the text of al-ʿUrwah, are not found in the text of Taḥrīr. Therefore, in the third supposition, we have, in a sense, three positions: 1. The establishment of the option for the ward but not for the guardian; 2. The non-establishment of the option for the ward; 3. The establishment of the option for both. We must examine which of these is correct — whether what the Imam has stated in Taḥrīr is correct or not.