Issue 8, Examination of the Five Suppositions, The Correct View in the Third Supposition

Session Forty-Three

Issue 8 – Examination of the Five Suppositions – The Correct View in the Third Supposition – First Position: Examination of the Establishment of the Option for the Ward – Arguments for the Establishment of the Option – First Argument and Its Examination – Second Argument and Its Examination – Third Argument and Its Examination

January 11, 2026

Summary of the Previous Session

The discussion concerned the third of the five suppositions of the eighth issue — that is, a case in which the guardian has knowledge of the defect, and a binding benefit existed in marrying off [the ward] to a person who has a defect, and the defect, too, is among those defects that necessitate the option of rescission and permit it. We stated that, in this supposition, three positions exist; but the requirement of careful examination is that we should examine the option both for the ward and for the guardian. Therefore we have organized the discussion into two positions: the first position is the examination of the establishment of the option for the ward. We stated that an argument has been advanced for the non-establishment of the option; we have set forth this argument along with its objection, although Mr. Makari still has a doubt and objection, which I shall address and, God willing, respond to.

Arguments for the Establishment of the Option

In opposition, two or three arguments can be mentioned for the establishment of the option for the ward. We shall examine these arguments to determine whether they can be adequate to the purpose or not.

First Argument

The first argument, which Muḥaqqiq al-Thānī, in Jāmiʿ al-Maqāṣid, has indicated, is that marriage is primarily formed on the basis of sexual desire and inclination — that is, in those circumstances in which a person undertakes marriage, sexual instinct is perhaps more predominantly in view. Therefore, when he has knowledge of the defect, and undertakes marriage with knowledge and awareness of the defect, this is not counted as consent to the defect; this differs from knowledge of a defect in a sold item. When someone purchases goods from the market while these goods have a defect, this is, in reality, a ratification of this defect — that is, he consents to this defect and purchases these goods; because, at the very moment he purchases these goods, he knows they are defective. Therefore, when he purchases with consent to the defect, the option is no longer established for him. But in the matter of marriage, on account of the very point indicated, it is as though this defect is not seen; it is true that he has knowledge of the defect, but he is overcome by desire and sexual instinct; therefore, knowledge and awareness of the defect is not counted as ratification of, and consent to, the defect. Therefore, the option is established here. The author of Jāmiʿ al-Maqāṣid, in effect, wishes to say that, in defects pertaining to the price or the item sold, knowledge of the defect means ratification and consent. But here, on account of the predominance of desire, it is as though his eyes are blinded; therefore, those conditions cannot be taken as the criterion, such that one might say that, since he marries with knowledge and awareness of the defect, he has therefore undertaken this himself and has no option. No, this is not so; there is a difference between these two cases.

Examination of the First Argument

This argument is not particularly acceptable; it is closer to a mere preference (istiḥsān) than to a noteworthy argument. At most, if we are lenient and accommodating, it can serve as a corroboration; otherwise, after all, one who undertakes marriage, although it is true that he has desire and the surge of sexual instinct has been realized in him, nevertheless sees this defect and has knowledge of it, and acts with awareness. In any case, when he has awareness of the defect, this means he consents to the defect; and when he is satisfied, the option is not established. Consent to a defect extinguishes the option; like the purchase of a car undertaken with knowledge of its defect — there, it is said that, since you knew this car had a defect but bought it anyway, the option for defect is no longer established. The same applies here; it is true that there is desire, but in any case, he has undertaken marriage with awareness, and therefore this argument cannot establish the option.

Second Argument

The second argument, which we might perhaps be able to trace back, in a certain manner, to the unqualified scope of the evidences for the option that the late Sayyid has stated, has been advanced by Shahīd [al-Thānī] in Masālik: “As for the establishment of the option, it is on account of the existence of the defect necessitating it, were the person who undertook the contract himself to be ignorant [of it], and the guardian’s action on his behalf, during his minority, is treated in the manner of ignorance.” According to the statement of Shahīd al-Thānī, the argument for the establishment of the option is that there exists an underlying cause (muqtaḑī) for the option; the underlying cause for the option is the existence of the defect. After all, the husband or wife has a defect, and, according to the view of the Lawgiver, the existence of the defect permits the option. The discussion, however, is this: if the person had knowledge of the defect and nevertheless undertook marriage, this means consent to the defect; but if he were ignorant and did not know of the defect, this does not mean consent to the defect, and therefore the option is established for him. Under what circumstance does the defect necessitate the option? In a case where the person is ignorant. For example, if the ward had no knowledge of the defect and undertook marriage, the option is established here. Our supposition is one in which the guardian has undertaken the marriage, and that, too, during the minority of this daughter or son. Therefore, as it were, this daughter or son is ignorant of the defect (because he himself did not know, but rather his guardian knew); moreover, he was not the one who undertook the contract himself; the option is established for one who is ignorant. Had he himself undertaken the contract and been ignorant, the option would have been established for him; now, he himself is not the one who undertakes the contract; and the one who has executed the contract has knowledge. You might say that he himself, too, had knowledge; he [Shahīd al-Thānī] states: “the guardian’s action on his behalf, during his minority, is treated in the manner of ignorance” — the fact that another person undertakes this action while he himself has not yet reached maturity is treated in the manner of ignorance [on his own part].

Question:

Professor: This is premised upon the argument of those who hold to the non-establishment of the option. The question is whether the guardian’s knowledge is equivalent to the ward’s knowledge or not. If you say that the guardian’s knowledge is equivalent to the ward’s knowledge, you are correct; but we have stated that his act is the ward’s act, but we have no argument whatsoever that his knowledge is the ward’s knowledge.

Third Argument

The third argument can either be a different presentation of the second argument, or an explanation of it, or it can independently be regarded as a separate formulation; this is precisely the matter that appears in the statements of the late Sayyid, namely the unqualified scope of the evidences for the option. That is, by invoking the unqualified scope of the evidences for the option, we say the option is established. In fact, this is, in a certain manner, the very matter that I indicated in the previous session. Explanation of the matter: the evidences that establish the option for defect state that, if a defect exists, this necessitates the option. In the matter of transactions, the source of the option for defect is, in reality, a deep-rooted conventional condition (sharṭ irtikāzī) between the contracting parties; it is true that this is never explicitly stipulated anywhere — no one mentions this in the text of the contract — but, by deep-rooted convention, this condition exists between the contracting parties, namely the condition of the soundness of the two items exchanged. When you pay money and purchase something, do you stipulate, and say, “on condition that it has no defect”? No one says this; because this is a deep-rooted conventional condition, and this condition exists in everyone’s mind — that the price and the item sold be equal in value, such that deception (ghabn) does not arise; the source of the option for deception and the option for defect is, in reality, the deep-rooted conventional condition of equality in value and the soundness of the two items exchanged. If you do not know that the other party is selling you a ten-thousand-toman item for one hundred thousand tomans, here you have been deceived, and the option is established for you. If you do not know that this item is defective, you have the option and can rescind this transaction. Therefore, if this item is sound, or if the two items exchanged are equal in value, this contract is binding, and no option whatsoever is established. Now, if someone undertakes a transaction with knowledge of the defect and the deception, the option is no longer established here; because, as it were, he has set aside that deep-rooted conventional condition. In the matter of transactions, the source of the option is this deep-rooted conventional condition; but in the matter of marriage, its source is the Lawgiver. That is, the fact that, if these defects exist in the husband or wife, the person can rescind the marriage, is not on account of the existence of a deep-rooted conventional condition — that is, it is not that, when one concludes a marriage contract, it is presupposed, by deep-rooted convention, that this person be sound, that he have value — similar to what exists with respect to the item sold or the price; no. Here, the option is established by the Lawgiver’s enactment and law. The Lawgiver states: if you marry, and such defects exist in the other party, you have the option of rescission; marriage differs from other transactions [in this respect]. This option is established by the Lawgiver’s enactment; when it is established by the Lawgiver’s enactment, it likewise ceases to exist by the Lawgiver’s negation. That is, the Lawgiver himself can forfeit the option and state that, in this case, the option is not established. From certain evidences, it is derived that, if the spouses have knowledge of the defect, the option is forfeited. This is correct; however, the discussion is whether our present case is among the instances of knowledge of the defect or instances of ignorance. In a case where he does not know, the option is established by the Lawgiver’s enactment; in a case where he does know, the option is not established by the Lawgiver’s negation. In a case where another person knows — that is, his knowledge and ignorance are equivalent, and his knowing or not knowing makes no difference, because the discretion is not in the ward’s own hands but in the guardian’s hands — the discussion is whether this is encompassed by the unqualified scope of the evidences for the option, or whether it is encompassed by those evidences that negate the option — that is, is it within the scope of “one who has knowledge of the defect,” such that the evidences negating the option would encompass it, or is it within the scope of “one who is ignorant of the defect,” such that the evidences for the option would encompass it? We do not know this. Is the ward truly knowledgeable or ignorant? He is ignorant. You might say he does know, but his knowledge is like his ignorance, because he himself has no role in the matter — because he himself was not the one who undertook the contract, and he himself did not act. Therefore, we doubt whether the unqualified scope of the evidences for the establishment of the option encompasses our present case or not; we say that the unqualified scope does encompass it here. Therefore, on the authority of the unqualified scope of the evidences for the option, the option is established. But the unqualified scope of the evidences for guardianship results in this contract being valid; this contract is valid, but the discussion is whether, in opposition to the unqualified scope of the evidences for guardianship, you also hold to a right and discretion for the ward; we have had certain instances previously where, after reaching maturity, he must grant ratification and confirmation. The discussion here is that the unqualified scope of the evidences for guardianship requires that this marriage be valid; it also has actual validity, not of the kind belonging to an unauthorized contract. But since this person’s knowledge is like his ignorance — that is, the ward’s knowing is like his not knowing — therefore the unqualified scope of the evidences for the option encompasses him, and, in this case, states that the option is established for the ward.

Question:

Professor: If there is no benefit, the contract is not valid… what you state, at most, requires that this marriage be valid. … The ultimate point of your objection is: why did you not make this statement in the case where [the ward] was married off for less than the customary dower, but make this statement here? I stated that the reason for this is that the option in the matter of marriage is established by the Lawgiver’s enactment, and is not in your hands or mine. … There, we stated that the contract is valid; because it was acted upon in accordance with benefit, and there was benefit in the marriage itself, and we hold to multiplicity of object sought (taʿaddud al-maṭlūb); we say that marriage is one object sought, and the dower is another object sought. Yes, had we held to unity of object sought, we would have said there is a problem there as well; but we say this contract is valid. Why is the option not established there? Because the option in the matter of marriage is, in fact, established by the Lawgiver’s enactment; with respect to defects, the Lawgiver has named a list of defects and has enacted the option. Now that he has enacted the option, I presently doubt whether the unqualified scope of the evidences for the option encompasses our present case or not; I say it does. … I stated that the Lawgiver has enacted an option called the option for defect, and has, for marriage, given grounds for rescission; but he states that, in this very marriage, if the person has knowledge of the defect, the option is forfeited. … Is the ward an instance of one who has knowledge of the defect, or not? … That requires that the contract be valid and binding; so, on one side, we have the unqualified scope of the evidences for guardianship, and on the other side, we have the unqualified scope of the evidences for the option: this very same binding marriage contract, if there is a defect involved, gives rise to an option permitting rescission. … Had we been faced only with this evidence, with no opposing evidence for the option, we would have said this contract is valid and binding; but now, in opposition to the evidences for guardianship, we have this argument [for the option]… You wish to say that the unqualified scope of the evidences for the option is restricted away from this case… your statement is the very same argument that I stated, in the previous session, on behalf of those who hold to the non-establishment of the option. However, I responded and asked: why should it be restricted? … The argument of those who hold to the non-establishment of the option is precisely your statement; they say that the evidences for the option are restricted away from our present case and do not encompass it. … My response is: why should it be restricted? Those evidences state that the option is not established for one who has knowledge of the defect. Our statement is: is the ward one who has knowledge of the defect, or not? … We hold that the unqualified scope of the evidences for the option encompasses this case.