[Rules for Agency (Wakâlah)]
Commissioning an agent (tawkeel) is permissible 896 in all situations in which deputation (niyâbah) 897 is
[حكم الوكالة]
وَهِيَ جَائِزَةٌ فِيْ كُلِّ مَا تَجُوْزُ النِّيَابَةُ فِيْهِ إِذَا كَانَ
The Book of Selling and
Commercial Transactions
Chapter on Agency
الْوَكاَلَةِ
The Book of Purification
The Book of Prayer
Importance of Prayer & Ruling of its Abandonment
Facing the Qiblah & Intention in the Prayer
Etiquettes of Walking to Prayer and its Description
Description of Prayer Continued
Description of Prayer Continued
Description of Prayer Continued
Pillars and Mandatory Acts of Prayer
Two Prostrations of Forgetfulness
Supererogatory (Voluntary) Prayers
Supererogatory (Voluntary) Prayers Continued
Times of Prohibition of (Supererogatory) Prayer
Congregational Prayers & Latecomers
Jumu'ah (Congregational Friday) Prayer
The Book of Funerals
The Book of Fasting
The Book of Hajj and 'Umrah
Book of Zakat
The Book of Selling and Commercial Transactions
Introduction & Commercial and Selling
Selling of Primary & Secondary Commodities
Cancellation Options in Transactions
Cancellation Options Continued
Debt Transference & Guarantor-ship
Mortgaging & Security Deposits
Partnership & Companies Continued
Reviving Barren Lands & Per-Job Wage
Lost and Found Property & Foundlings
Prize Money & Deposits for Safekeeping
The Book of Bequests
The Book of Inheritance
The Book of Marriage
The Book of Divorce
The Book of Sadaq
The Book of Dhihar
The Book of Lian
The Book of Foods
Book of Fatal and Non-Fatal Assault
The Book of Indemnities
The Book of Hudood
The Book of Jihad
The Book of the Judiciary
The Book of Testimonies
Appendix
Glossary
Agency (Wakâlah) 895
895. The act of commissioning an agent (tawkeel) occurs when one party, X, authorizes (yuwakkil) another party, Y, to act on his or her behalf concerning certain matters where that is possible. X is the muwakkil (authorizer/principal), and Y is the wakeel (authorized agent). The whole transaction is called agency (wakâlah).
896. Proofs on the permissibility of commissioning an agent:
Allah said:
{…So send one of you with this silver coin of yours to the city and let him look to which is the best of food and bring you provision from it…} (al-Kahf 18: 19)
{… فَابْعَثُوا أَحَدَكُم بِوَرِقِكُمْ هَٰذِهِ إِلَى الْمَدِينَةِ فَلْيَنظُرْ أَيُّهَا أَزْكَىٰ طَعَامًا فَلْيَأْتِكُم بِرِزْقٍ مِّنْهُ ...)
“The Messenger of Allah (SA) gave ‘Urwah ibn al-Ja‘d al-Bâriqi (RA) one dinar to buy a sheep, so he bought two sheep for him with the money. Then he sold one of the sheep for one dinar, and brought one dinar and a sheep to the Prophet (SA). On that, the Prophet (SA) invoked Allah to bless him in his deals.” (B)
روى البخاري عَنْ عُرْوَةَ أَنَّ النَّبِيَّ - صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ - أَعْطَاهُ دِينَارًا يَشْتَرِي لَهُ بِهِ شَاةً فَاشْتَرَى لَهُ بِهِ شَاتَيْنِ فَبَاعَ إِحْدَاهُمَا بِدِينَارٍ وَجَاءَهُ بِدِينَارٍ وَشَاةٍ فَدَعَا لَهُ بِالْبَرَكَةِ فِي بَيْعِه
In this verse and this hadith, there is one person acting on behalf of another. The Prophet (SA) also delegated to ‘Ali the slaughtering of the rest of the camels he offered during his Hajj. This is an example of deputation in an act of worship.
Rationally, there is a pressing need for this type of contract, since human beings have limited capacity, and they need the assistance of others in conducting their affairs.
In al-Mughni, Ibn Qudâmah reported consensus on the permissibility of commissioning an agent.
897. Niyâbah is acting on behalf of someone else. Some considered wakâlah and niyâbah to be synonymous. However, there are some subtle differences. Niyâbah is wider in scope. A child, an insane person, or someone with no legal capacity will have someone designated to act on his or her behalf (bi-n-niyâbah ‘anhu) even though the former cannot authorize this. Also, one may make Hajj on behalf of someone (bi-n-niyâbah ‘anhu) without the latter asking for it or authorizing the former to do it.
[Type of Contract]
It is a non-binding legal contract 900
that becomes invalid when either one of them [the authorizer or his agent] dies, 901
annuls the contract, becomes insane, or is interdicted (ḥajr) 902
because of foolishness/recklessness (safah).
This is also the case in all [non-binding] contracts such as partnership, watering trees for part of the crop, sharecropping, per-job wages (ja‘âlah) 903
and contests. 904
[نوع العقد]
وَهِيَ عَقْدٌ جَائِزٌ يَبْطُلُ بِمَوْتِ كُلِّ وَاحِدٍ مِنْهُمَا وَفَسْخِهِ لَهَا، وَجُنُوْنِهِ، وَالْحَجْرِ عَلَيْهِ لِسَفَهِهِ.
وَكَذٰلِكَ الشَّرِكَةُ وَالْمُسَاقَاةُ وَالْمُزَارَعَةُ وَالْجَعَالَةُ وَالْمُسَابَقَةُ.
898. Deputation is not permissible in certain acts of worship, such as in the entirely bodily acts of ablution (wuḍoo’) and praying. In some acts, it is permissible, such as in distributing charity or slaughtering. There is controversy regarding many other acts, such as the recitation of the Qur’an, but (A) + (+H, +m, +s, +t) allowed it.
899. In general, the authorizer and the agent need to be sane adults who are eligible to conduct the transaction themselves. Therefore, a woman cannot be given power of attorney (that is, be commissioned to be an agent) to act as a guardian (wali) of another woman in marriage, since she cannot be a guardian in the first place. Also, a man who is not the primary guardian (like a brother, when the father is available) may not make another an agent to act on his behalf concerning a matter over which he has no authority.
N.B.: In some exceptional cases, the agent may not be originally eligible to conduct the transaction. For instance, a woman may not divorce herself or other women; however, she may do so (divorce herself) if authorized by the husband.
There is consensus that a non-Muslim can be an agent of the Muslim in whatever they have the legal capacity to perform.
900. Contracts are of two types: Binding (wâjib), such as sale contracts after separation, and non-binding (jâ’iz), such as wakâlah, where each party has the right at any time to end it.
901. One may still commission another to execute one’s bequests after one’s death, collect one’s properties, pay off one’s debts, and look after one’s children. This commissioned person will be called the waṣiy (executor of the bequests).
902. As mentioned earlier, interdiction (ḥajr) means having one’s property under legal seizure and being prevented from disposing of it.
903. Ja‘âlah is when a certain compensation is set for finishing a particular piece of work; it will be discussed further in a later chapter.
904. This means that the person who offered a prize may withdraw his or her offer before one of the contestants wins the prize.
[Authority of the Agent]
The agent is authorized only in whatever is covered, verbally or by custom, by the permission (given to him or her in the contract). 905
The agent is not to authorize someone else, 906
or to buy from himself (or herself) 907
or sell to himself (or herself) without the approval of his (or her) authorizer.
[صلاحيات الوكيل]
وَلَيْسَ لِلْوَكِيْلِ أَنْ يَفْعَلَ إِلاَّ مَا تَنَاوَلَهُ الإِذْنُ لَفْظًا أَوْ عُرْفًا.
وَلَيْسَ لَهُ تَوْكِيْلُ غَيْرِهِ وَلاَ الشِّرَاءُ مِنْ نَفْسِهِ وَلاَ الْبَيْعُ لَهَا، إِلاَّ بِإِذْنٍ.
If he or she (the agent) buys something for another without the latter’s approval, it becomes a valid transaction if the latter agrees to it. Otherwise, it is binding on the one who bought it. 908
وَإِنِ اشْتَرَى لإِنْسَانٍ مَا لَمْ يَأْذَنْ لَهُ فِيْهِ، فَأَجَازَهُ، جَازَ، وَإِلاَّ لَزِمَ مَنِ اشْتَرَاهُ.
905. In the Ḥanbali madh-hab, people’s customs (‘urf) have an important place in the fiqh of financial transactions. In Majmoo‘ al-Fatâwâ, Shaykh al-Islâm Ibn Taymiyah mentions:
“The customary [implied] permission for granting rights, ownership or control via proxy is equivalent to verbal permission.”
الإذن العرفي في الإباحة أو التمليك أو التصرف بطريق الوكالة كالإذن اللفظي.
906. If the job is customarily known to be beneath the agent or beyond his or her capacity to handle alone, then he or she may authorize someone else. However, the agent may not do so if he or she was explicitly barred from doing so. Likewise, the agent may not do so if he or she is known to be capable of doing the job, and if it is not beneath him or her to carry it out himself or herself. This is the stronger position in the Ḥanbali madh-hab, although there is another opinion in the madh-hab that allows the agent to authorize others as long as he or she was not explicitly barred from doing so. (al-Inṣâf by al-Mardâwi)
907. That is, selling the property of the authorizer on the authorizer’s behalf to himself or herself.
908. For example, X knows that Y wants to buy a car, so X goes and buys one for Y without Y’s knowledge. Y may retrospectively authorize the transaction and take the car, or he or she may decline, in which case the purchase will be binding on X. This type of transaction is called taṣarruf al-fuḍooli (transaction by an unauthorized agent). The hadith of ‘Urwah above is a proof of its permissibility, since he was authorized to buy only, but not to sell what he bought. (Please recall that, in the hadith of ‘Urwah, the Prophet [SA] gave him one dinar to buy a sheep, and he bought two sheep for him with the money. Then he sold one of the sheep for one dinar, and brought one dinar and a sheep to the Prophet [SA].)
[Liability (Ḍamân) 909 of the Agent]
The agent is a trustee 910 who bears no liability in case of damage as long as he or she does not transgress. The agent’s word is legally trusted concerning refunding, 911 damage, and denial of transgression.
912
[ضمان الوكيل]
وَالْوَكِيْلُ أَمِيْنٌ، لاَ ضَمَانَ عَلَيْهِ فِيْمَا يَتْلَفُ، إِذَا لَمْ يَتَعَدَّ، وَالْقَوْلُ قَوْلُهُ فِيْ الرَّدِّ وَالتَّلَفِ وَنَفْيِ التَّعَدِّيْ.
[Compensation for the Agent]
It is lawful to give power of attorney (that is, to authorize an agent) in return for a wage or something else. If the agent was told to sell something for ten
[أجر الوكيل]
وَيَجُوْزُ التَّوْكِيْلُ بِجُعْلٍ وَبِغَيْرِهِ، وَلَوْ قَالَ: بِعْ هَذَا بِعَشَرَةٍ، فَمَا زَادَ، فَلَكَ، صَحَّ.
In general, (A) + (+S) do not validate the transaction of an unauthorized agent, while (a) + (-H, -M, -t) do, contingent upon the approval of the person on whose behalf the transaction was conducted. (Note that there is disagreement within (H) whether this validation applies to selling only or both selling and buying.) (A) argued that one may not sell that which they do not possess, and argued that ‘Urwah was authorized for certain transactions, so his other unauthorized transaction was to be approved, pending the approval of the muwakkil (authorizer).
909. The word ḍamân in this context means ‘liability’, whereas in earlier contexts it referred to a ‘guarantee of payment’.
910. Whenever someone is considered a trustee, like here and in the case of the mortgagee, the person is not liable for the loss of or damage to the property he or she is entrusted with unless the person transgresses or acts recklessly.
911. If the agent claims that he or she returned the property to its owner. (A/SM): a paid agent’s claim of returning the property will not be accepted without proof.
912. The agent may claim that the money was returned to the authorizer, or that it was lost or damaged, and that he or she did not transgress. In this case, the agent shall be believed unless the authorizer proves the opposite, since the authorizer trusted the agent in the first place.
913. That the authorizer owed to someone.
914. If the creditor denies getting paid.
and that any excess is for the agent, it would be valid. 915
915. (-H, -M, -S) do not allow this transaction due to the uncertainty of the compensation. Aḥmad considered it to be like muḍârabah (a permissible type of limited partnership, discussed below). The authorizer may also name a certain amount or a percentage of the profit.
The agent may not make additional profit from his or her work over what is agreed upon. Also, if the agent commissioned another to do the work, the second agent is entitled to the entire compensation promised to the first.
Chapter on Agency
( Page : no 81)