Issue 10, Brief Statement of the Issue

Session Fifty

Issue 10 – Brief Statement of the Issue – The Statement of the Sayyid – Differences Between the Wording of Taḥrīr and al-ʿUrwah – Explanation of the Qualifier “In Need of Marriage” in the Wording of al-ʿUrwah – Explanation of the Qualifier “The Explicit Statement of the Testator” in the Wording of al-ʿUrwah – Annotations on the Statement of the Sayyid

January 31, 2026

Issue Ten

“Does the executor (waṣī) — that is, the custodian appointed on behalf of the father or paternal grandfather — have guardianship over the minor boy and minor girl in the matter of marriage? There is a problem in this; the precaution should not be abandoned.”

Brief Statement of the Issue

Is guardianship in the matter of marriage established for the executor — that is, one who has been appointed as custodian on behalf of the father or paternal grandfather — with respect to a minor boy or minor girl, or not? There is a problem in establishing such guardianship for the executor with respect to the minor boy and minor girl in the matter of marriage; therefore, the precaution should not be abandoned — that is, the obligatory precaution is that such guardianship is not established for the guardian [in this sense]. First, we must precisely determine the subject matter of this issue — namely, who is meant by “executor”; second, the views and positions that exist on this matter; and third, on what basis the Imam has stated, “there is a problem in this; the precaution should not be abandoned.”

The Statement of the Sayyid

The late Sayyid, in the twelfth issue of al-ʿUrwah, among the issues pertaining to the guardians of the contract, has addressed this matter; the text of the twelfth issue is as follows: “The executor may marry off the insane person who is in need of marriage, and indeed the minor as well, but on the condition of the explicit statement of the testator, whether he has specified the wife or husband, or has left it unqualified; and there is no difference between his being an executor on behalf of the father or on behalf of the paternal grandfather, but on the condition of the absence of the other; otherwise, the matter rests with him [the other].” The late Sayyid has addressed this matter and has also made certain additions to it. At the outset of the issue, he states: the executor can marry off the insane person; however, there is a qualifier here, namely that the insane person be in need of marriage. He then states, “indeed the minor as well” — he first speaks of the insane person, stating that he can marry him off, and then makes a further point and states, “indeed the minor as well” — but on the condition of the explicit statement of the testator regarding this discretion and this matter.

Differences Between the Wording of Taḥrīr and al-ʿUrwah

In the wording of Taḥrīr, there is no reference to the insane person; in the wording of al-ʿUrwah, he has stated, “may marry off the insane person.” The fact that there is no reference to the insane person is not significant; because the subject matter is the issue of the minor boy and minor girl, and the insane person is, of course, joined to this. That is, the fact that the Imam has stated [the ruling] with respect to the minor does not mean that he has dissented with respect to the insane person and holds a different view; the ruling for these two is the same. However, the late Sayyid, for a certain reason, has first stated the insane person, and then made a further point and raised the matter of the minor; this is indicative of a certain matter regarding the minor — namely, that, with respect to the insane person, there was apparently no hesitation whatsoever, and he stated with certainty, “may marry off the insane person”; but with respect to the minor, there exist traditions that negate the guardianship of the executor over the minor. This is not so with respect to the insane person; with respect to the minor boy and minor girl, we have traditions that negate the guardianship of the executor over the minor boy and minor girl, and therefore the late Sayyid, in light of those traditions, has stated, with respect to the minor as well, that the executor may marry him off — that is, the traditions cannot negate the guardianship. Therefore, the reason he has made this further point is that, as it were, he had no hesitation whatsoever with respect to the insane person, but with respect to the minor, on account of the existence of certain traditions that negate the guardianship of the executor over the minor, and which he believes cannot negate the guardianship of the executor over the minor boy and minor girl, he has stated, “indeed the minor as well” — that is, with respect to the minor as well, despite the existence of those traditions, we nevertheless hold that the executor has guardianship. This is a point that exists in the statement of the late Sayyid.
A further matter that exists in the statement of the late Sayyid and does not exist in the text of Taḥrīr is the qualifier “in need of marriage,” which the late Sayyid has mentioned; its apparent sense is that “in need of marriage” is not a qualifier exclusively for the insane person, but rather exists for the minor as well. Therefore, a condition has appeared, alongside the insane person and the minor, in the statement of the Sayyid, which does not exist in the text of Taḥrīr, namely the matter of need for marriage.
A further condition has also appeared, namely “but on the condition of the explicit statement of the testator.” Therefore, as it were, according to the wording of al-ʿUrwah, the guardianship of the executor over the insane person and the minor is established on two conditions: 1) need for marriage; 2) the explicit statement of the testator regarding this guardianship — that is, the father or paternal grandfather must give this discretion to the executor and tell him that he may marry off this minor boy or minor girl. These two conditions do not appear in the text of Taḥrīr; first, we must determine what is meant by these two conditions, and then proceed to the positions and arguments.

Explanation of the Qualifier “In Need of Marriage” in the Wording of al-ʿUrwah

What is meant by “in need of marriage” may perhaps be precisely necessity (ḑarūrah); when it states that the insane person be in need of marriage, one possibility is that marriage be a necessity for him. The other possibility is that marriage be of benefit to him; there is a difference between the existence of benefit in the marriage of the insane person and the minor, and the necessity of marriage for the insane person and the minor. Benefit is broader than necessity — that is, there may well be neither need nor compulsion with respect to marriage, yet there be a benefit in this marriage — a benefit that accrues to the insane person or minor girl herself. According to this possibility, this condition is authoritative; but, given that the basic guardianship of the father and paternal grandfather is conditioned upon the observance of benefit, then, necessarily, if this guardianship is to be established for the executor as well, it must likewise be conditioned upon the observance of benefit. Therefore, it appears that this possibility is not particularly what is intended. The first possibility remains, namely that what is meant is precisely compulsion with respect to marriage; need for marriage means that marriage be a necessity for him. Necessarily, according to this possibility, we must say that this condition is specific to the insane person, and the generalization of this condition to the minor is not very clear; rather, with respect to the minor, the same general condition of benefit suffices. But it seems that, with respect to the insane person, an additional condition is mentioned, namely need for marriage. This is because, with respect to the insane person, we can conceive of need for marriage, but for the minor this has no meaning; for the minor, compulsion with respect to marriage has no meaning; for the minor, we can conceive of benefit, and his marriage may possess benefit; but that the minor be in need of marriage, or that marriage be a necessity for him, is not very acceptable. Therefore, although some have regarded this condition of the late Sayyid as pertaining to both — both the insane person and the minor — in our view, as the apparent sense of the statement itself also attests, the condition “in need of marriage” pertains only to the insane person, not to the minor.

Question:

Professor: Compulsion with respect to marriage mainly reverts to the natural needs of the person, which pertains to the insane person — of course, provided the insane person is mature, because the insane person, too, is broader than [one whose] insanity is continuous from minority and otherwise; but the apparent sense is that this has no meaning with respect to the minor, because, for the minor, a natural need that would reach the level of compulsion cannot be conceived.

Explanation of the Qualifier “The Explicit Statement of the Testator” in the Wording of al-ʿUrwah

The second condition, which I shall explain briefly, and the further detail of which I shall state in the discussion of the precise determination of the subject matter and the positions that exist on this matter, is this: “but on the condition of the explicit statement of the testator”; what is meant by the explicit statement of the testator? The word “explicit” (naṣṣ) carries the apparent sense of explicitness; does this mean that he must state this matter explicitly, or does it suffice if it is stated in a manner that carries an apparent indication of this meaning as well? The apparent sense of the statement of the late Sayyid, and indeed of the statements and expressions of the jurists, is that what is meant by the explicit statement of the testator is not that he has stated this matter explicitly, but rather that, even if it carries an apparent indication, this suffices; therefore, the explicit statement of the testator means that the testator (the one making the testamentary disposition — the father or paternal grandfather) has, in some manner, stated the discretion of the executor and custodian in the matter of marriage — whether with an expression that carries an apparent indication of this matter, or with an expression that is explicit in this matter. Therefore, what is meant by “explicit” is not [necessarily] explicit, but rather broader, encompassing both the explicit and the apparent — in contrast to leaving it unqualified. Because it is possible that someone might appoint another as an executor in an unqualified manner and make no mention whatsoever of marriage; the late Sayyid wishes to say that the executor can marry off the minor and the insane person only if the matter of the executor’s guardianship over marriage has been stated — whether explicitly or by apparent indication. In any case, in the tenth issue of Taḥrīr, these two conditions are not mentioned; because the Imam, in general, denies that such guardianship exists for the executor, there is no longer any reason to mention conditions; the Imam stated, “there is a problem in this; the precaution should not be abandoned” — the obligatory precaution is that such guardianship is not established. The late Sayyid, who holds that such guardianship exists, has set two conditions: on the condition of his need for marriage, and on the condition of the explicit statement of the testator. You have also observed the basic legal ruling, and that there is disagreement between the Imam and the late Sayyid. The Imam stated, “there is a problem in this; the precaution should not be abandoned,” whereas the late Sayyid has stated, “The executor may marry off the insane person who is in need of marriage, and indeed the minor as well, but on the condition of the explicit statement of the testator” — that is, he has accepted this guardianship on these two conditions.

Annotations on the Statement of the Sayyid

The Imam, in connection with the statement of the Sayyid, has written this annotation; where he has stated, “The executor may,” the Imam has an annotation precisely here. Pay close attention, for these expressions are technical, and reflection upon these expressions is important, and this itself, in a certain manner, guides us toward the basis for the legal ruling or the precaution. The Imam has written as follows: “In a case where guardianship is established for the testator” — the Imam states that whether the executor has guardianship to marry off the insane person and the minor or not pertains to a case in which guardianship in the matter of marriage is established for the testator; is there perhaps a case in which guardianship in the matter of marriage is not established for the testator? Yes; if someone has been appointed as executor specifically for financial matters — if he has been appointed as executor specifically for financial matters, guardianship is not established there. Moreover, when it states that guardianship is established with respect to the insane person, which insane person is intended? The Imam states: an insane person whose insanity is continuous from minority; this results in the continuation of the father’s guardianship, and he can appoint someone as an executor for him. But for one other than this — that is, someone who has reached maturity and has then become afflicted with insanity — the father no longer has guardianship such that he might wish to transfer this to an executor. Therefore the Imam has stated, “In a case where guardianship is established for the testator, such as one whose insanity is continuous from his minority” — with respect to an insane person who has become afflicted with insanity after maturity, the testator has no guardianship. “And the precaution that should not be abandoned is to add the judge’s permission” — the obligatory precaution is that, even with respect to the insane person whose insanity is continuous from minority, the judge’s permission must also be added. “But as for the insane person whose insanity has befallen him after maturity, the more probable view is that his affair rests with the judge” — but with respect to the insane person whose insanity has befallen him after maturity, the more probable view is that his affair rests with the judge’s discretion; “even in the presence of the father and the paternal grandfather” — even if the father and paternal grandfather are alive. “Although precaution is good” — of course, here too, the recommended precaution is that the permission of the father and paternal grandfather should also exist. “But as for the matter of the minor, the precaution should not be abandoned with respect to it” — the obligatory precaution is that the executor does not have such guardianship. Now, why has the Imam made this an obligatory precaution and not issued a definitive ruling? We must examine the evidences in order to determine this.
The late Āyatullāh Burūjirdī, too, in connection with the statement of the Sayyid where he stated, “may marry off the insane person,” has this statement: “The more cautious view is the addition of the judge’s permission in the case of the insane person in need of marriage” — the more cautious view is the addition of the judge’s permission with respect to the insane person who has need of marriage. “And confining it to him, not the minor” — and confining this — that is, confining it to the insane person… this is like the view of the Imam — namely, that, with respect to the insane person, both the executor’s permission and the judge’s permission are necessary. But this pertains only to the insane person; what about the minor? He, too, holds that guardianship is not established for the executor with respect to the minor.
The late Āyatullāh Nāʾīnī, too, has written: “with the condition that his insanity be continuous from his minority, as previously stated”; he too states that this pertains only to an insane person whose insanity is continuous from minority.
The late Āyatullāh Khūʾī has stated: “This pertains to insanity continuous from minority; but, with respect to other than this, the precaution of seeking permission from the judge should not be abandoned” — but with respect to other than the insane person whose insanity is continuous from minority… But with respect to the minor — whether guardianship is established with respect to him or not — you have observed that the Imam and the late Āyatullāh Burūjirdī have stated, with respect to the minor, that it is not established. Others, too, have stated nearly the same view; the late [Muḥaqqiq] Nāʾīnī has stated, “it is not free of a problem.”
The late Ḥājj Sayyid Abū al-Ḥasan al-Iṣfahānī has stated: “The matter is extremely problematic; therefore the precaution should not be abandoned.”
The late Āyatullāh Khūʾī, too, in connection with “but on the condition of the explicit statement of the testator,” has written: “If the testator has not made an explicit statement regarding marriage, but the executor has the discretion to deal in the minor’s property by way of selling and purchasing, then the precaution of combining his permission with the judge’s permission should not be abandoned” — if the testator has not explicitly stated marriage, and the executor has only the right to deal in the minor’s property, the precaution is that the permission of the executor and the permission of the judge should be combined.

Discussion for the Next Session

God willing, in the next session we shall state the positions and their arguments.