Issue 10, Arguments for the Establishment of Guardianship in an Unqualified Manner, Second Argument
Session Fifty-Five
Issue 10 – Arguments for the Establishment of Guardianship in an Unqualified Manner – Second Argument: Traditions – Second Tradition: The Tradition of Khālid ibn Bukayr – Approach to the Argument – Examination of the Second Tradition – Second Category of Traditions – Approach to the Argument – First and Second Objections and Their Examination
February 9, 2026
Summary of the Previous Session
The discussion concerned the second argument among the arguments for the guardianship of the executor in the matter of the marriage of the minor boy and minor girl; the second argument consists of certain traditions. We stated that the traditions fall into two categories: one category consists of traditions that address this matter directly, and the second category consists of traditions transmitted in connection with the verse “him in whose hand is the marriage tie”; here, either certain instances of “him in whose hand is the marriage tie” have been mentioned, or it has been defined and explained. From the first category, we examined one tradition transmitted by Muḥammad ibn Muslim; the chain of transmission of this tradition is sound. Some, such as the late Āyatullāh Khūʾī, regard it as authentic (ṣaḥīḥah), and some regard it as reliable (muwaththaqah). With respect to its indication as well, despite the objection raised against this tradition, we have accepted its indication.
Second Tradition: The Tradition of Khālid ibn Bukayr
The second tradition is the tradition of Khālid ibn Bukayr; the late Āyatullāh Khūʾī, after his argument from the tradition of Muḥammad ibn Muslim, has stated that the argument from the tradition of Khālid is similar to the argument from the authentic tradition of Muḥammad ibn Muslim. Let us first transmit the tradition itself, and then determine whether it can indicate this claim or not. Khālid ibn Bukayr states: “My father summoned me when death approached him, and said: O my son, take possession of the property of your minor brothers, and work with it, and take half the profit, and give them the other half, and you shall bear no liability.” When my father’s death drew near, he summoned me and said to me: my son, take the property of your minor brothers, and work with it; let half the profit be for you, and half the profit be for them; you shall bear no liability whatsoever. “Then, after my father’s death, the mother of my father’s child brought me before Ibn Abī Laylā, and said: this person is consuming the property of my children. He said: so I recounted to him what my father had commanded me.” My father had a slave-concubine (umm walad) who, after my father’s death, went to Ibn Abī Laylā and said to him that this person is consuming the property of my children; I, too, recounted the story for Ibn Abī Laylā and told him my father’s instruction. “Ibn Abī Laylā said to me: if your father commanded you to do something invalid, I shall not authorize it.” Ibn Abī Laylā said to me: if your father instructed you to do something invalid, I shall not give permission for this. “Then Ibn Abī Laylā took testimony against me, that if I undertook this, I would be liable for it.” Ibn Abī Laylā took witnesses against me, that if I undertook this action and dealt in their property, I would be liable. “So I went to Abū ʿAbd Allāh (peace be upon him) and recounted my story to him, and then said to him: what is your view?” I, too, went to Imam al-Ṣādiq (peace be upon him) and recounted my own story to Imam al-Ṣādiq (peace be upon him), and said: what do you say, and what is your view? “He said: as for the statement of Ibn Abī Laylā, I am unable to reverse it; but as for what is between you and God, Mighty and Exalted, you bear no liability.” The Imam (peace be upon him) said: I am not concerned with what Ibn Abī Laylā has said; but, in reality, what exists between you and God is that you bear no liability — that is, the bequest that your father made is effective, and you, on account of working with this property and dealing in the minors’ property, bear no liability.
Approach to the Argument
The approach to the argument from this tradition is evident; because the person, at the time of death, made a bequest to his son that he should put to use the property of his minor brothers and engage in muḑārabah with it, and divide the profit he obtains — giving half to them and taking half himself. Ibn Abī Laylā, one of the jurists of the [Sunnī] majority, stated that this is invalid and held him liable; but the Imam (peace be upon him) stated that you bear no liability. It is as though the Imam (peace be upon him) deemed this action permissible; this means that such a bequest is effective. A father, at the time of death, made a bequest to his son, and this bequest is also effective. If a father, while alive, gave permission with respect to a matter that pertained to him, and made a bequest, then, after his death, the executor too can undertake that action; he can undertake the marrying-off.
Examination of the Tradition
As indicated, the late Āyatullāh Khūʾī has stated that the argument from this tradition is similar to that from the tradition of Muḥammad ibn Muslim. However, the fact of the matter is that there is a difference between this tradition and the tradition of Muḥammad ibn Muslim; in the tradition of Muḥammad ibn Muslim, the cause for the effectiveness of the father’s bequest regarding muḑārabah was mentioned, and the argument was premised upon this causal explanation and its generality; therefore, we extended [the ruling] from the subject matter of the tradition to marriage. Because the Imam (peace be upon him) had stated the cause for the permissibility of the bequest, and we stated that this cause exists with respect to marriage as well; therefore, a bequest regarding marriage is likewise effective, and the executor can marry off the minor. Whereas, in the tradition of Khālid ibn Bukayr, no such causal explanation has been stated. The entirety of the Imam’s (peace be upon him) statement is: “but as for what is between you and God, Mighty and Exalted, you bear no liability” — you bear no liability; but he has stated nothing with respect to the cause for this. Therefore, according to the apparent sense of this tradition, the effectiveness of a bequest in the matter of marriage is not established. Yes, what is derived from this tradition is the effectiveness of a bequest in financial matters and muḑārabah; but the effectiveness with respect to marriage is not derived from it.
Second Category of Traditions
The second category of traditions consists of traditions that have been transmitted in connection with the verse “him in whose hand is the marriage tie”; however, these traditions have, at times, indicated instances of the verse, and at times have explained “him in whose hand is the marriage tie.” There are numerous traditions; we shall refer to two or three traditions and state the approach to the argument from them. Of course, some, such as the late Āyatullāh Khūʾī, have referred to these traditions as corroborations (muʾayyid); the reason these traditions have been treated as corroborations may well be an objection that existed with respect to the chain of transmission of some of these traditions; whereas, when these traditions are considered together, they are also authoritative with respect to their chain of transmission.
First Tradition
The first tradition is the tradition of Abū Baṣīr; of course, we have several other traditions with this same content, which we shall not repeat. “From Abū Baṣīr, from Abū ʿAbd Allāh (peace be upon him), who said: I asked him about ‘him in whose hand is the marriage tie.’ He said: he is the father, the brother, the man to whom a bequest is made, and the one whose discretion in the woman’s property is effective, such that he can sell and buy for her; whichever of these forgoes [a portion of the dower], it is effective.” Abū Baṣīr transmits from Imam al-Ṣādiq (peace be upon him) that I asked the Imam (peace be upon him) about the verse “him in whose hand is the marriage tie”; the Imam (peace be upon him) said: these consist of the father, the brother, the one to whom a bequest is made, and the one whose discretion and opinion regarding the woman’s property is effective, and who can buy or sell on her behalf; whichever of these forgoes [a portion], it is effective. Here, what is meant by “forgoes” is forgoing [a portion of] the dower; he states that, if these (that is, those who are “in whose hand is the marriage tie”) forgo the dower, or forgo half of it as the dower, this is effective — that is, they have the right to forgo a portion of the dower.
Second Tradition
Several other traditions have come with this same content, which, because there is no time, I shall not read; among them is the tradition of Abū Baṣīr and Muḥammad ibn Muslim, both transmitting from Abū Jaʿfar (peace be upon him). This tradition is precisely like the tradition we have read, except that, in the closing of the tradition, it appears as follows: “Whichever of these forgoes, his forgoing is effective with respect to the dower, when he forgoes it.” This has made clear that forgoing pertains to something that falls within the scope of their discretion — that is, they have the right to forgo a portion of the dower. There is also the tradition of al-Ḥalabī and several other traditions, in all of which this matter appears — namely, that the Infallible Imams (peace be upon them) have enumerated certain persons as being those in whose hand is the marriage tie; they have stated that the resolution of the matter of marriage rests in their hands. … These several instances appear in these traditions: the father, the brother, the executor, and the agent.
A Second Tradition [Type]
The traditions we have read up to this point have addressed the matter by stating instances; in certain traditions transmitted in connection with this verse, no instance has been mentioned; rather, they have addressed the explanation of the meaning of “him in whose hand is the marriage tie” — they no longer state “brother and father and executor and agent.” For example, it has been stated that “him in whose hand is the marriage tie” means “the guardian of her affair” (walī amrihā); this has been defined and explained. Among these: The authentic tradition of ʿAbd Allāh ibn Sinān: “From ʿAbd Allāh ibn Sinān, from Abū ʿAbd Allāh (peace be upon him), who said: him in whose hand is the marriage tie [is the guardian of her affair].” Or, for example, in another tradition transmitted from Rifāʿah, it appears as follows: “From Rifāʿah, who said: I asked Abū ʿAbd Allāh (peace be upon him) about him in whose hand is the marriage tie. He said: the guardian, who takes some [actions] and leaves others, but he does not have the right to abandon it entirely.” Here, too, he has stated that what is meant by the one in whose hand is the marriage tie is one who accepts some matters and does not accept others, and abandons them — that is, he does not have the right to entirely set aside the matter of marriage.
Approach to the Argument from the Second Category
The approach to the argument from these traditions is that, just as the brother, the father, the agent, and the executor have discretion and guardianship in financial matters, this guardianship is established for them with respect to marriage as well — especially when an instance is specified. The traditions that have specified an instance, their meaning is entirely clear; it states: who are those who hold discretion in the matter of marriage? It has enumerated the executor as one of them. Therefore, it becomes clear that the executor has discretion in the matter of marriage; this is clear with respect to its indication. Here, some have raised an objection concerning the chain of transmission, which is, of course, answerable. Some have also raised other objections, which we shall state. As for those traditions that, in a general manner, have defined “him in whose hand is the marriage tie,” it is evident that this encompasses the matter of marriage as well. It states: we asked what is meant by “him in whose hand is the marriage tie”? He said: “he is the guardian of her affair.” This, in fact, carries the apparent indication that the matter of marriage rests in the hands of these persons; he has mentioned the brother and the father, and has also mentioned the executor and the agent. This indicates, quite clearly, that the executor can undertake the marrying-off of the minor boy and minor girl.
Question:
Professor: That is taken as a presupposition, namely that benefit must be observed in it — just as the father himself undertook this action on the basis of benefit. … Allow us first to determine whether this basic matter is acceptable or not, and then we shall see whether it can be extended from the specific case to another case. If we do not accept the basic matter, the question of whether, in a specific case where a bequest has been made, he now has the right to marry off, no longer arises. Even with respect to a specific case, if he makes a bequest, it makes no difference; this is broader [in scope].
Examination of the Second Category of Traditions
Several objections are raised here. If we can answer these objections, this category of traditions, too, can be invoked as an argument. The late Narāqī, in al-Mustanad, has referred to some of these objections, and has, of course, answered some of them; some other jurists, such as the author of Kashf al-Lithām, have, in fact, given a different interpretation and have stated a construal for these traditions.
First Objection
One objection is that these traditions are, in essence, ambiguous (mujmal) and cannot be invoked as an argument. This is because they have also mentioned the brother, whereas the brother is not among the guardians (awliyāʾ); the father and the paternal grandfather are among the guardians, but the brother is not among the guardians. Second, the agent in financial matters is certainly not among the guardians either; how, then, has it placed both the brother and the financial agent alongside the father and the paternal grandfather, and made the verse encompass them? Therefore, this tradition is ambiguous — especially given that, in the tradition of Abū Baṣīr and certain other traditions, the matter of forgoing and waiving with respect to the dower has been raised. The tradition stated: “whichever of these forgoes, it is effective” — that is, it states that these have the right to forgo and waive [a portion of] the dower. Here, one might say that it has named those who have the right to forgo, even if the matter of marriage does not rest in their hands. Yes, this possibility, too, exists; but the fact of the matter is that neither possibility has any preference over the other. Therefore, the tradition becomes ambiguous and cannot be invoked as an argument.
Response
This objection is answerable; because the mention of the brother and the financial agent does not conflict with the apparent indication of the tradition that this verse names the guardians of the contract. In other words, the verse recognizes the father, the executor, and the paternal grandfather as the guardians of the contract — that is, the tradition is applying [the verse to instances]. The main problem concerns the financial agent and the brother; if these two have been mentioned, it is because the agent, generally and predominantly, has discretion over other matters as well; or the brother (especially the elder brother), with respect to the sister’s marriage, has, as it were, been given a certain discretion by the sister herself. Yes, it is possible that, in some case, someone might negate this and oppose his brother’s intervention; this falls outside our discussion; or, for example, someone might appoint an agent only for financial matters. But, generally and customarily, the brother (especially if the father is not present) has this discretion; the same applies to the agent. Therefore, this objection is not sound and cannot damage the argument from this tradition.
Second Objection
A further objection that might be raised here regarding this tradition is that what is meant by “bequest” (waṣiyyah) in these traditions (I state this especially because it was also raised in the previous session) is not the technical term “bequest,” but rather means recommendation and counsel. This objection may perhaps apply more particularly to the traditions of the first category… it states that he made a bequest to him that, for example, during his lifetime, he should engage in muḑārabah with this property; ordinarily, this property belongs to the minors after [his] death. How, then, can we now say that he is “making a bequest”? A bequest pertains to [a time] after death. Therefore, the objection that some have raised here is that this “bequest” is not the technical term “bequest”; therefore, it is of no use to us. Our discussion concerns a case in which someone is a technical “executor,” and we wish to determine whether he has guardianship over marriage, or not.
Response
This is contrary both to the apparent sense and to the statement of the linguists. It is true that, in certain instances, “bequest” is construed according to its linguistic meaning, but many of the linguists have taken “bequest” to mean precisely this — that is, this very technical “bequest” is intended by it. Therefore, this objection, too, is not sound. Of course, other objections have also been raised regarding the argument from this tradition, for which there is no time, and which, God willing, we shall pursue after the holidays. Up to this point, for now, the conclusion has become that one of the verses indicates the claim; from the traditions as well, we have traditions that indicate the guardianship of the executor with respect to the matter of the minor’s marriage.
Discussion for the Next Session
A further argument has also been mentioned; further positions also exist, and we must state their arguments as well, and then formulate a summary.