Islamic Fiqh > Companies and leases > Wakala (agency mandate) > Delegating a minor and delegating an apostate
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Updated on 25 September 2026 at 6:57 PM
This part belongs to the full section: All sections of this part.
After the conditions concerning the person of the agent, this part of the fiqh encyclopedia examines the cases in which the mandate passes to a person whose capacity to act is debated: the minor, the apostate, the disbeliever, the notorious sinner, the woman and the dhimmi. It then addresses the fourth pillar of the agency, the delegated object, together with its three conditions: being owned by the principal at the time of delegation, being known in some respect, and admitting representation. The chapter closes with the validity of delegation in hire (ijara), admitted by unanimous agreement of the four schools.
The Malikis, like the Shafi'is, hold that delegation to a minor is invalid. Ibn Rushd (may Allah have mercy on him) writes: "The condition of the agent is that he not be barred by the Law from disposing of the thing for which he was mandated; delegation to a minor is therefore not valid" ("Bidayat al-Mujtahid", 3/85; "Mawahib al-Jalil", 7/52, 54; "Al-Taj wa-l-Iklil", 4/140; "Sharh Mukhtasar Khalil", 6/39; "Tathbir al-Mukhtasar", 4/238; "Al-Sharh al-Saghir" with "Hashiyat al-Sawi", 7/481).
There is, however, no explicit text from Imam Malik on this. Al-Qadi 'Abd al-Wahhab (may Allah have mercy on him) said: "Delegation to the adolescent: I know of no text on it, and I hold that it is not valid, contrary to Abu Hanifa; for whoever cannot delegate cannot be delegated, like the insane person, and because he is not legally accountable, like the minor and the insane" ("Al-Ishraf 'ala Nukat Masa'il al-Khilaf", 3/82, no. 942). Ibn Hubayra (may Allah have mercy on him) said: "They differed over delegating the discerning adolescent who intends the contract and understands it. Abu Hanifa and Ahmad said: it is valid. Al-Qadi 'Abd al-Wahhab said: I know of no text from Malik on it, and I hold that it is not valid. Al-Shafi'i said: it is not valid" ("Al-Ifsah", 1/456).
Next comes delegation to the apostate. The majority of jurists, the Hanafis, Shafi'is and Hanbalis, hold it valid: the apostasy of the agent does not prevent the validity of the agency, so a Muslim may delegate an apostate. For the suspension of the apostate's dispositions stems from the suspension of his ownership, while the agent disposes of the property of the principal, whose dispositions remain effective. The same applies if the agent was Muslim at the time of delegation and then apostatized: his agency continues, for the reason given. The Hanafis add: unless he joins the abode of war, in which case his agency is void ("Bada'i' al-Sana'i'", 6/20; "Al-Bahr al-Ra'iq", 7/142; "Al-Sharh al-Kabir" by al-Rafi'i, 5/218; "Rawdat al-Talibin", 3/497; "Al-Najm al-Wahhaj", 5/26; "Mughni al-Muhtaj", 3/195; "Nihayat al-Muhtaj" with "Hashiyat al-Shabramallisi", 5/20-21; "Hashiyat Qalyubi wa-'Umaya" on "Kanz al-Raghibin", 3/845).
The Hanbalis say: delegation by a Muslim to a disbeliever is valid in whatever his disposition is valid in, whether he is a dhimmi, a protected traveler (musta'man), a belligerent from enemy territory or an apostate; for uprightness is not a condition of the validity of agency, and the same applies to religion, as in sale. If a Muslim delegates someone who then apostatizes, his agency is not void on either of the two views, whether he joins the abode of war or stays put; for his disposition is valid on his own behalf, so his agency is not void, just as it would not be if he had not joined the abode of war. Moreover, apostasy does not prevent the initiation of agency, so it does not prevent its continuation, like other forms of disbelief; for his apostasy does not affect his dispositions, it affects only his property, except in what contradicts it, that is, except if he is delegated for a disposition contrary to apostasy, such as offering the marriage of a Muslim woman or accepting it. There is another view: the agency is void through apostasy if one holds that the apostate loses his property and his dispositions are void, agency being a disposition ("Al-Sharh al-Kabir" by Ibn Qudama, 5/214-215; "Kashshaf al-Qina'", 3/548; "Sharh Muntaha al-Iradat", 3/515).
The jurists differed over the Muslim: may he delegate a disbeliever to sell wine or pork or anything else, or to buy them, or is that not permitted? The majority of jurists, the two companions of Abu Hanifa, the Malikis, the Shafi'is and the Hanbalis, held that it is not permitted for a Muslim to delegate a disbeliever, whether a dhimmi or otherwise, to sell wine or to buy it. For one of the conditions of the agency is that the principal be someone who holds the power of disposition, since the agent derives his power of disposition from him and acts through him: how could someone who has no power over a thing confer it on another? In their view, delegating a disbeliever is valid for things other than wine and pork, contrary to the Malikis, who barred it for sale and purchase without distinction.
The Malikis said: it is barred for a Muslim to delegate a disbeliever, whether a dhimmi or otherwise, to sell to a Muslim or buy for him; for the disbeliever does not seek out what is lawful in his transactions and does not know the conditions of the object of the contract, namely the price and the thing sold. It is likewise barred for a Muslim to delegate the disbeliever to collect his debts, even from a disbeliever, because of their practice of usury (riba) and their deeming it lawful, even if the one from whom the right is collected consents: it is the right of Allah, the Most High. For the disbeliever may mistreat the Muslim who comes to collect the debt from him and lord it over him, in line with the word of Allah quoted below. This is also why he is barred from being the agent and scribe of governors and their like: that belongs to manifest error.
"And Allah will never grant the disbelievers a way over the believers."
Surah An-Nisa, 141
They added: if the forbidden sale, purchase or litigation has taken place in a valid manner, it should stand, without right of rescission. As for delegating a disbeliever to a disbeliever to recover a debt owed by a Muslim, it is barred, for he may mistreat him and impose hardship on him; and if the delegation concerns something else, it involves the dominance of disbelievers, unlike its absence, for such dominance belongs only to the holder of the right. As for matters other than these three, namely sale, purchase and litigation, delegating him in them is permitted, such as accepting a marriage, delivering a gift, granting a discharge (ibra') or making an endowment (waqf).
It is stated in "Al-Mudawwana": Malik (may Allah have mercy on him) said: it is not permitted for a Muslim to hire a Christian except for a service; as for hiring him for a sale, a purchase, the recovery of a debt, or to trade as a broker on his behalf, that is not permitted, because of their practice of usury and their deeming it lawful.
Malik (may Allah have mercy on him) said: the same applies to his Christian slave: it is not permitted to order him to sell anything, buy it, or demand its payment; and the Muslim does not prevent his Christian slave from going to church, or from drinking wine or eating pork.
Ibn al-Qasim (may Allah have mercy on him) said: a Muslim does not enter into partnership with a dhimmi, except on condition that the latter does not absent himself for a sale or purchase except in the Muslim's presence. He said: there is no harm in employing him to irrigate if the dhimmi does not press his share into wine. He said: I do not like a Muslim to grant a qirad to a dhimmi, because of his practice of usury, nor to take a qirad from him, lest he humiliate himself; and if it happens, the contract is not rescinded ("Al-Sharh al-Kabir" with "Hashiyat al-Dasuqi", 5/67; "Al-Dhakhira", 8/5; "Sharh Mukhtasar Khalil", 6/76; "Al-Taj wa-l-Iklil", 4/207; "Mawahib al-Jalil", 7/158; "Sharh Mayyara", 1/207; "Tathbir al-Mukhtasar", 4/290; "Hashiyat al-Sawi" on "Al-Sharh al-Saghir", 8/81; "Minh al-Jalil", 6/127).
Al-'Imrani, the Shafi'i (may Allah have mercy on him), said: if a Muslim delegates a dhimmi to buy wine, it is not valid; and if the dhimmi buys for him, the purchase is not valid for the Muslim. Abu Hanifa said: it is valid for the Muslim. Our proof is that everything for which the Muslim cannot conclude a contract himself, he cannot delegate the dhimmi in, such as contracting marriage with a magian woman ("Al-Bayan", 6/405; "Al-Sharh al-Kabir" by al-Rafi'i, 6/48).
The Hanbalis say: delegation by a Muslim to a disbeliever is valid in whatever his disposition is valid in, whether he is a dhimmi, a protected traveler, a belligerent or an apostate; for uprightness is not a condition of the validity of agency, and the same applies to religion, as in sale ("Al-Sharh al-Kabir", 5/214).
Imam Abu Hanifa (may Allah have mercy on him) held that it is permitted for a Muslim to delegate the dhimmi to sell wine or pork; for the condition is that the delegation be carried out with what the agent holds, while the principal's ownership of it is not a condition. It is therefore permitted, in his view, for a Muslim to delegate the dhimmi to sell wine or buy it. Al-Babarti (may Allah have mercy on him) said in "Al-'Inaya": when a Muslim orders a Christian to sell wine or buy it and he does so, it is permitted according to Abu Hanifa, contrary to the two companions.
Regarding pork, and delegating someone for a forbidden thing by selling its game, the two companions said, on this point of disagreement: the principal does not oversee this disposition, so he does not entrust it to another, as in delegating a magian to marry a magian woman. And because what attaches to the agent transfers to the principal, it becomes as if he had carried it out himself; and had he carried it out himself, it would not have been permitted; the same applies to delegation ("Al-'Inaya", "Sharh al-Hidaya", 9/159-160; "Al-Mabsut", 15/71; "Sharh Fath al-Qadir", 7/510; "Tabyin al-Haqa'iq", 4/254; "Hashiyat Ibn 'Abidin", 7/272; "Durar al-Hukkam", 3/551).
Abu Hanifa (may Allah have mercy on him) said: two capacities count in this chapter: the capacity of the agent and that of the principal. The first is the capacity of the contracting party, that is, the capacity to dispose of what is commanded, and the Christian possesses it. The second is the capacity for the ruling to attach, which belongs to the principal, by the ruling of the contract, so that the bound does not become detached from the binding. Consider the validity of wine becoming the property of the Muslim through inheritance when his Christian testator embraces Islam and dies leaving wine and pork.
It is objected: inheritance is a compulsory matter, delegation is a voluntary one: how do they resemble each other? Because the attachment of the ruling, that is, ownership to the principal, after the cause is realized, that is, after the agent acts, is compulsory: it is established without his choice, as in death. Consider that when the authorized Christian buys wine, ownership of it is established for his Muslim master by consensus. When both capacities are present, the contract is not prevented by Islam, for Islam attracts, it does not take away. Then, if the delegated object is wine, he denatures it, and if it is a pig, he releases it into the wild.
They said, however: this delegation is intensely disliked. And their statement that the principal does not oversee this disposition, so he does not entrust it to another, is refuted by the agent who buys a specific slave when another is delegated to buy it for himself: ownership is established for the first agent, even though he does not himself carry out the purchase for himself; likewise the judge if he orders a dhimmi to sell wine or pork and another dhimmi replaces him, while he does not oversee the disposition himself; and the dhimmi if he bequeaths to a Muslim while leaving both of them: the executor will delegate a dhimmi for the sale and the division, although he does not oversee that himself. The analogy with the magian marrying is rejected: for the rights of the contract in marriage revert to the principal, and the agent is nothing but an ambassador.
The jurists differed over the Muslim: may he delegate a disbeliever to offer a marriage on his behalf, or is that not permitted? The Malikis and the Hanbalis in one view held that it is permitted for a Muslim to delegate the dhimmi to accept marriage on his behalf ("Al-Sharh al-Kabir" with "Hashiyat al-Dasuqi", 5/67; "Sharh Mukhtasar Khalil", 6/76; "Hashiyat al-Sawi" on "Al-Sharh al-Saghir", 8/81; "Majmu' al-Fatawa", 32/17-18).
The Shafi'is and the Hanbalis in the madhhab held that delegating a disbeliever to offer the marriage of a Muslim woman or accept it is not valid; for he does not possess the acceptance of her marriage for himself, so he cannot be delegated in it for another. Likewise, according to the Shafi'is, it is not valid for a Muslim to delegate a disbeliever to marry off his daughter, nor for a Muslim to delegate a magian to marry off his ward. It is also a tendency among the Hanbalis: it does not appear valid for a Muslim to be delegated on behalf of a disbeliever in the marriage of his daughter; for the agreement of religions is one of the conditions of guardianship, except the master who marries off his disbelieving slave woman to a disbeliever: that is valid unconditionally, meaning whether the disbelieving principal is a People of the Book or not; the converse being that it is not valid for a disbeliever to be delegated on behalf of a Muslim in marrying off his daughter ("Matalib Uli al-Nuha", 3/433; "Kashshaf al-Qina'", 3/539; "Sharh Muntaha al-Iradat", 3/504).
The Shafi'is said: if the Muslim delegates a dhimmi to accept marriage for him with a dhimmi woman, it is valid; for the dhimmi possesses the acceptance of her marriage for himself, so his delegation in it is valid.
Al-Mawardi (may Allah have mercy on him) said: as for the disbeliever, he may not be delegated in what involves guardianship over a Muslim, nor in the marriage of a Muslim, neither on the side of the husband nor on the side of the wife; for the marriage of a Muslim never takes place with a disbeliever; but he may act as agent in the marriage of a disbeliever ("Al-Hawi al-Kabir", 6/506; "Al-'Ubbab", 685; "Al-Bayan", 6/405; "Rawdat al-Talibin", 3/497; "Mughni al-Muhtaj", 3/195; "Al-Ashbah wa-l-Naza'ir", 293).
Shaykh al-Islam Ibn Taymiyya (may Allah have mercy on him) was asked about a man who delegated a dhimmi to accept the marriage of a Muslim woman: is the marriage valid? He answered: "Praise be to Allah, Lord of the worlds. This question is disputed; for the agent in accepting marriage must be someone whose acceptance of marriage for himself is valid in principle. If a woman, an insane person, or a child without discernment were delegated, it would not be allowed. But if the agent is someone whose acceptance of marriage is valid with the permission of his guardian and not valid without it, and he is delegated in that, such as delegating a slave to accept marriage without his master's permission, or a prodigal under interdiction without his guardian's permission, or a discerning child without his guardian's permission, the scholars of the madhhab of Ahmad and others have two views on this. As for one whose acceptance of marriage is valid without permission, yet who in the specified situation is not permitted for a reason tied to her, such as delegating for the marriage of a slave woman someone for whom marrying her is not permitted: the delegation is valid."
As for delegating the dhimmi to accept marriage for himself, it resembles the dhimmi marrying off his dhimmi daughter to a Muslim; if he married her to a dhimmi, it is allowed; if he married her to a Muslim, there are two views in the madhhab of Ahmad and others: it is said that it is permitted; it is said that it is not permitted, but that he should rather delegate a Muslim; and it is said that she is not married off except by the ruler with his permission, his guardianship over the marriage of the Muslim resembling his acting as agent in the marriage of the Muslim woman.
Whoever holds all of that to be permitted said: ownership in marriage accrues to the husband, not to the agent, by agreement of the scholars, unlike ownership in other contracts, over which the jurists disputed. The madhhab of al-Shafi'i, Ahmad and others is that the rights of the contract attach to the principal and ownership accrues to him: if a Muslim delegated a dhimmi to buy wine, it would not be allowed, and Abu Hanifa differs on that. Since ownership accrues to the husband, who is the Muslim principal, delegating the dhimmi is like delegating him to marry a woman to one of her unmarriageable kin, such as her maternal aunt: it is permitted to delegate him to accept her marriage on behalf of the principal, even though he may not marry her himself. Likewise the dhimmi delegated in the marriage of a Muslim, even though it is not permitted for him to marry off the Muslim woman. But it is safer not to do so, because of the dispute it involves, and because marriage partakes of acts of worship: it is recommended to conclude it in the mosques. The traditions have given the answer:
Whoever witnesses the concluding of the marriage of a Muslim is like one who has witnessed a conquest in the cause of Allah.Reported among the athar
For this reason, on one of the two views in the madhhab of Ahmad and others, it is obligatory to conclude the contract in Arabic, like the prescribed invocations. That being so, it does not follow that the disbeliever exercises guardianship over the marriage of a Muslim; yet at the same time the contract does not appear to be void: there is no legislative proof of its nullity, the disbeliever's own marriage is valid, and he does not belong to the category of acts of worship. And Allah knows best ("Majmu' al-Fatawa", 32/17-18; "Al-Fatawa al-Kubra", 4/105-106).
The jurists differed over the ruling on delegating a disbeliever by a Muslim to divorce his wife: is it valid or not? The Shafi'is in the madhhab held that delegating a disbeliever by a Muslim to divorce a Muslim woman is valid; for it is conceivable that a disbeliever divorce a Muslim woman: she embraces Islam first, he falls away, then he divorces her during the waiting period ('idda), then embraces Islam before it expires: his divorce has indeed taken effect on her. According to another view: he does not possess the divorce of a Muslim woman, but he possesses divorce in principle ("Al-Hawi al-Kabir", 6/506; "Rawdat al-Talibin", 3/497; "Mughni al-Muhtaj", 3/195; "Al-Ashbah wa-l-Naza'ir", 293). This is what is understood from the Malikis, who barred delegating him in sale, purchase and litigation, and permitted it in accepting marriage for a Muslim ("Al-Sharh al-Kabir" with "Hashiyat al-Dasuqi", 5/67; "Sharh Mukhtasar Khalil", 6/76; "Hashiyat al-Sawi", 8/81; "Minh al-Jalil", 6/127).
The Hanbalis say: delegating a disbeliever by a Muslim to divorce his wife, or to take her back (ruju'), is not valid ("Matalib Uli al-Nuha", 3/433, 437; "Kashshaf al-Qina'", 3/539; "Sharh Muntaha al-Iradat", 3/504). The Hanafis do not require the agent to be a Muslim, but I have found no explicit statement from them on this.
There is no disagreement among the people of knowledge on the permissibility of delegating the disbeliever in principle in whatever his disposition is permitted in, even though they differ as to whether he holds the delegation in some situations or not.
Imam al-Bukhari (may Allah have mercy on him) mentions in his Sahih a chapter titled: "If a Muslim delegates a belligerent disbeliever, whether in the abode of war or in the abode of Islam, it is permitted":
'Abd al-'Aziz ibn 'Abdallah narrated to us: Yusuf ibn al-Majishun narrated to me from Salih ibn Ibrahim ibn 'Abd al-Rahman ibn 'Awf, from his father, from his grandfather 'Abd al-Rahman ibn 'Awf (may Allah be pleased with him), who said: I concluded a written pact with Umayya ibn Khalaf whereby he would protect my interests (saghya) in Mecca and I would protect his in Medina. When I mentioned "al-Rahman", he said: I do not know "al-Rahman"; write with your name of the Jahiliyya. So I wrote "Abd 'Amr". When the day of Badr came, I went out to a mountain to guard my interests while the people were asleep. Bilal saw him, went out and stopped at a gathering of the Ansar and said: Umayya ibn Khalaf? May I never be saved if Umayya is saved. A group of the Ansar went out with him on our tracks. When I feared they would catch up with us, I left his son behind to keep them busy, and they killed him, then they pressed on until they followed us. He was a heavy man. When they caught up with us, I said to him: halt. He halted. I threw myself over him to shield him, and they pierced him with their swords from beneath until they killed him. One of them struck my leg with his sword, and 'Abd al-Rahman ibn 'Awf used to show us that scar on top of his foot.Reported by al-Bukhari (2179)
Ibn Hajar (may Allah have mercy on him) said: the reason for this entry is that 'Abd al-Rahman ibn 'Awf, being a Muslim in the abode of Islam, entrusted to Umayya ibn Khalaf, a disbeliever in the abode of war, what concerned his affairs; and it appears that the Prophet (peace and blessings of Allah be upon him) knew of it and did not object.
Ibn al-Mundhir (may Allah have mercy on him) said: delegation by a Muslim to a protected belligerent, and delegation by the protected belligerent to a Muslim: there is no disagreement as to its permissibility ("Fath al-Bari", 4/480). Badr al-Din al-'Ayni (may Allah have mercy on him) said: "Chapter: if a Muslim delegates a belligerent disbeliever in the abode of war or in the abode of Islam, it is permitted." That is, this is a chapter dealing with such delegation. His saying "or in the abode of Islam" means: or he delegates the belligerent while the latter is in the abode of Islam under protection. His saying "it is permitted" refers to the delegation, as indicated by his saying "delegated", as in the word of Allah "Be just: that is nearer to piety", that is, justice is nearer (Surah Al-Ma'ida, 8).
Al-'Ayni then related the hadith and said: its conformity with the entry lies in that 'Abd al-Rahman ibn 'Awf, a Muslim in the abode of Islam, made a pact with Umayya ibn Khalaf, a disbeliever in the abode of war, by entrusting him with what concerned him: that is the meaning of delegation, for the agent is the one who watches over his principal's interests and fulfils his needs. By this he refuted what Ibn al-Tin had said: there is in this hadith no delegation, but rather an agreement that each of the two would protect the interests of the other.
If you say: by this alone, a Muslim's delegation to a belligerent in the abode of war is valid. I say: it appears that 'Abd al-Rahman did this only with the knowledge of the Prophet (peace and blessings of Allah be upon him), who did not object to it, which proves its validity. And if you say: the entry covers two things, and the hadith proves only one of them, namely the Muslim's delegation to the belligerent while the latter is in the abode of war, I say: if that is valid, his delegation in the abode of Islam is valid all the more. Ibn al-Mundhir said: delegation by a Muslim to a protected belligerent, and delegation by the protected belligerent to a Muslim: there is no disagreement as to its permissibility ("Fath al-Bari", 12/128).
Ibn Qudama al-Maqdisi (may Allah have mercy on him) said: delegation by a Muslim to a disbeliever is valid in whatever his disposition is valid in, whether he is a dhimmi, a protected traveler, a belligerent or an apostate; for uprightness is not a condition of the validity of agency, and the same applies to religion, as in sale ("Al-Sharh al-Kabir", 5/214).
Yet the statement of Ibn al-Mundhir, as transmitted by Ibn Hajar and al-'Ayni, that there is no disagreement on the permissibility of delegating the disbeliever in general, is not accepted, for two reasons. The first: in "Al-Ishraf" he did not say "without disagreement"; rather he said: the Muslim delegates the dhimmi and the dhimmi delegates the Muslim, according to the view of al-Shafi'i and the people of opinion, and this is what we choose. And if the Muslim delegates the protected belligerent, or the protected belligerent delegates the Muslim, it is permitted. Ibn al-Mundhir said: if the Muslim delegates the protected belligerent, or the protected belligerent delegates the Muslim, it is permitted; this is what Ibn Battal transmitted from him ("Al-Ishraf", 8/282; "Sharh Sahih al-Bukhari" by Ibn Battal, 6/433), and he did not mention "without disagreement".
The other matter: the Malikis do not permit delegating the disbeliever in sale, purchase, or the collection of debt. The Malikis said: it is barred for a Muslim to delegate a disbeliever, whether a dhimmi or otherwise, to sell to a Muslim or buy for him; for the disbeliever does not seek out what is lawful in his transactions and does not know the conditions of the object of the contract, namely the price and the thing sold. It is likewise barred for a Muslim to delegate the disbeliever to collect his debts, even from a disbeliever, because of their practice of usury and their deeming it lawful, even if the one from whom the right is collected consents: it is the right of Allah, the Most High, and the disbeliever may mistreat the Muslim who comes to collect the debt from him and lord it over him: "And Allah will never grant the disbelievers a way over the believers" (Surah An-Nisa, 141). This is also why he is barred from being the agent and scribe of governors and their like: that belongs to manifest error.
They said: if the forbidden sale, purchase or litigation has taken place validly, it should stand. As for delegating the disbelievers to a disbeliever to recover a debt owed by a Muslim, it is barred, for he may mistreat him and impose hardship on him; and if it concerns something else, it involves the dominance of disbelievers, unlike its absence, for such dominance belongs only to the holder of the right. As for matters other than these three, sale, purchase and litigation, delegating him in them is permitted, such as accepting a marriage, delivering a gift, granting a discharge or making an endowment.
It is stated in "Al-Mudawwana": Malik (may Allah have mercy on him) said: it is not permitted for a Muslim to hire a Christian except for a service; as for hiring him for a sale, a purchase, the recovery of a debt, or to trade as a broker on his behalf, that is not permitted, because of their practice of usury and their deeming it lawful. Malik (may Allah have mercy on him) said: the same applies to his Christian slave: it is not permitted to order him to sell anything, buy it, or demand its payment; and the Muslim does not prevent his Christian slave from going to church, or from drinking wine or eating pork. Ibn al-Qasim (may Allah have mercy on him) said: a Muslim does not enter into partnership with a dhimmi, except on condition that he does not absent himself for a sale or purchase except in the Muslim's presence. He said: there is no harm in irrigating for him if the dhimmi does not press his share into wine. He said: I do not like a Muslim to grant a qirad to a dhimmi, because of his practice of usury, nor to take a qirad from him, lest he humiliate himself, meaning that if it happens, it is not rescinded ("Al-Sharh al-Kabir" with "Hashiyat al-Dasuqi", 5/67; "Al-Dhakhira", 8/5; "Sharh Mukhtasar Khalil", 6/76; "Al-Taj wa-l-Iklil", 4/207; "Mawahib al-Jalil", 7/158; "Sharh Mayyara", 1/207; "Tathbir al-Mukhtasar", 4/290; "Hashiyat al-Sawi" on "Al-Sharh al-Saghir", 8/81; "Minh al-Jalil", 6/127).
The jurists nevertheless disliked delegating the dhimmi, on account of the word of Allah, the Most High: "O you who believe! Do not take the disbelievers as allies instead of the believers" (Surah An-Nisa, 144). Abu Bakr al-Jassas said: our companions disliked delegating the dhimmi in buying, selling, and handing over capital to him as a mudaraba; and this verse attests the soundness of that view ("Ahkam al-Qur'an" by al-Jassas, 3/280). Shams al-Din al-Sarakhsi (may Allah have mercy on him) said: it is disliked for a Muslim to delegate a dhimmi to dispose on his behalf ("Al-Mabsut", 11/198). He also said: I dislike delegating a dhimmi to conclude a salam contract on one's behalf; if he does it, it is permitted; for the dhimmi does not guard against usury, nor against concluding a corrupt contract, whether out of ignorance of that, or out of his belief or intent to impose the unlawful on the Muslim. That is why it is disliked to take him in that, and it is permitted if he does it; for the salam contract belongs to transactions, and in that they are equal to the Muslims ("Al-Mabsut", 12/216).
The second case: delegating a notorious sinner (fasiq) to offer marriage on behalf of another. The Shafi'is in the madhhab and the Hanbalis in the madhhab held that it is not permitted to delegate the fasiq to offer marriage on behalf of another; for he is the one who offers the marriage, so he must not be a sinner, like the guardian. According to the second view of the Shafi'is and a narration of the Hanbalis: his delegation to offer the marriage is valid; for he is not a guardian: the guardian is the one who delegates, and he is the upright one ("Al-Bayan", 6/404; "Rawdat al-Talibin", 3/497; "Kifayat al-Akhyar", 323; "Al-Mughni", 5/51; "Al-Sharh al-Kabir", 5/204; "Al-Furu'", 4/257-258; "Al-Mubdi'", 4/357; "Al-Insaf", 5/359; "Kashshaf al-Qina'", 5/60, 62; "Matalib Uli al-Nuha", 5/70; "Manar al-Sabil", 2/561).
The majority of jurists, the Malikis, Shafi'is and Hanbalis, held that delegating a woman to conclude the marriage contract, whether by offer or acceptance, is not valid; for she does not possess the right to marry herself, so she does not possess the right to marry another. Even if she authorized her guardian with the formula of delegation, saying: I delegate you to marry me, it is valid, but it is an authorization, not a delegation ("Al-Sharh al-Kabir" by al-Rafi'i, 5/215; "Al-Bayan", 6/403; "Rawdat al-Talibin", 3/496; "Sharh al-Manhaj", 3/402; "Al-Kafi", 2/242).
Imam Abu Hanifa, Zufar, al-Hasan, and the apparent narration from Abu Yusuf, held that delegating a woman in the marriage of another is valid; for she may marry herself off. Al-Mawsili, the Hanafi (may Allah have mercy on him), said: a woman's word carries weight in marriage, to the point that if a free, adult, sane woman marries herself off, it is permitted; likewise if she marries off another by guardianship or delegation; likewise if she delegates someone to marry her, or someone marries her and she ratifies it. This is the view of Abu Hanifa, Zufar and al-Hasan, and the apparent narration from Abu Yusuf.
Muhammad said: it is only valid with the guardian's ratification; if they die before her, they do not inherit from each other, nor does his divorce take effect, nor his zihar, and intercourse with her is unlawful. If the guardian refuses to ratify, al-Tahawi transmitted from Muhammad that the judge renews the contract between them. And Hisham transmitted from Muhammad: if the guardian does not ratify it, I ratify it, and he was a judge at the time, so two narrations result from him. It is also transmitted from him that he returned to the view of Abu Hanifa seven days before his death. The jurist Abu Ja'far al-Hinduwani transmitted that a woman came to Muhammad three days before his death and said: I have a guardian who will not marry me off until I give him much money. Muhammad said to her: go and marry yourself off; this supports what is transmitted of his return. From Abu Yusuf, outside the narration of the Usul, a position like Muhammad's first view. And in one narration: if she marries herself to a match (kuf'), it does not depend on anything; if he is not a match, it depends on the guardian's ratification ("Al-Ikhtiyar", 3/112).
Imam Ibn 'Abd al-Barr (may Allah have mercy on him) said: it is not permitted for a woman to conclude her marriage contract herself without her guardian, nor to conclude the marriage of another. Those who said this include Malik, al-Shafi'i, Sufyan, al-Thawri, Ibn Abi Layla, Ibn Shubrama, Ibn al-Mubarak, 'Ubaydallah ibn al-Hasan, Ahmad, Ishaq, Abu Thawr, Abu 'Ubayd and al-Tabari. It is transmitted from 'Umar, 'Ali, Ibn Mas'ud, Ibn 'Abbas and Abu Hurayra, and it is the view of Sa'id ibn al-Musayyab, al-Hasan, 'Umar ibn 'Abd al-'Aziz and Jabir ibn Zayd Abu al-Sha'tha'. Opposing them were the people of opinion among the Kufans and a group of the Followers ("Al-Tamhid" by Ibn 'Abd al-Barr, 19/84).
The jurists differed over delegating a woman to divorce another: is it valid or not? This after their agreement on the validity of her delegation in her own divorce. The Shafi'is in the soundest view and the Hanbalis held that a woman may act as an agent in divorce; for if the husband grants her power over her own divorce, she possesses it, so she may act as an agent in the divorce of another. On this basis, it is permitted for a husband to delegate a woman.
The Shafi'is in another view held that delegating a woman in divorce is not permitted; for she does not possess divorce, so she cannot be an agent in it. Her delegation was permitted only in her own divorce out of necessity, and there is no necessity for her delegation in the divorce of another, so it is not permitted. On this basis, it is required that the husband's agent be a man ("Al-Hawi al-Kabir", 10/90-91; "Al-Bayan", 6/404-405; "Al-Muhadhdhab", 1/349; "Rawdat al-Talibin", 3/497; "Al-Mughni", 5/51; "Al-Kafi", 2/242; "Al-Sharh al-Kabir", 5/204; "Zad al-Ma'ad", 5/294, 299; "Al-Mubdi'", 4/357; "Kashshaf al-Qina'", 3/540; "Sharh Muntaha al-Iradat", 3/505).