Islamic Fiqh > Companies and leases > Wakala (agency mandate) > A woman's delegation in resuming marriage, and a guardian's delegation in marriage
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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.
The Shafi'is said: delegating a woman in her own resumption (ruju') or in the resumption of another is not valid; for intimacy is not made lawful by the word of women ("Rawdat al-Talibin", 3/497; "Mughni al-Muhtaj", 3/194).
There is no disagreement among the jurists of the schools that a woman's guardian may delegate another to conclude the marriage of his ward, provided the required conditions are met in the agent. The Malikis said: the delegation of a woman's guardian is valid only for one who resembles him in fulfilling the required conditions. Thus al-Sawi said in "Al-Sharh al-Saghir" ("Hashiyat al-Sawi" on "Al-Sharh al-Saghir", 4/467).
Imam al-Qarafi (may Allah have mercy on him) said in "Al-Dhakhira": "The sixth investigation: the delegation of the guardian and of the husband. The guardian may delegate someone to contract on behalf of his ward after the husband has been designated, and the husband may appoint an agent for the contract. What is required of guardians is not required of the agent: delegation is valid with a child, a slave or a Christian; for the agent is like the servant of his principal, and his office does not exclude lowly attributes; and because he is only delegated after his competence and sound management have been ascertained, unlike one who would be appointed guardian in the first instance. It is also said: what is required of guardians is required of him, as a safeguard for the contract. The agent says: I have married the daughter of so-and-so, and not: of me; and the agent says: I have accepted for so-and-so. If he merely says: I have accepted, that suffices if he intended his principal" ("Al-Dhakhira", 4/250).
The Shafi'is said: delegation to marry is permitted. If the guardian is one who may compel, he may delegate without her permission, on the sound view; it is said that her permission is required, as related by al-Hannati and al-Qadi Abu Hamid; on this, if she is a minor, delegation is excluded. And on the sound view, if he delegates, the designation of the husband is not required, on the more apparent view. If a previously married woman consents to marriage, or a virgin consents to someone other than her father or grandfather, there are two views on requiring designation; it is said that it is not required at all: for the guardian is charged with warding off the shame of lineage, unlike the agent.
When the guardian is not one who may compel, either because he is not the father or grandfather, or because she is previously married, delegation takes four forms. The first: she says to him: marry me, and he delegates: both marriage and delegation are available to each of the two. The second: she forbids him to delegate, so he does not delegate. The third: she says: delegate for my marriage, and confines herself to that: he has the delegation; may he then marry her himself? There are two views, and al-Nawawi held the sounder to be yes. The fourth: she says: I authorize you to marry me: he has the delegation on the sounder view, for he disposes by guardianship. If he delegates without returning to her at all or asking her permission, it is not valid on the sound view, for he then does not possess the power to marry her himself; according to the second view, it is valid. It follows that the guardian or his agent asks permission of the guardian and then marries, and that he may not ask for himself ("Rawdat al-Talibin", 4/710; "Fath al-Wahhab", "Sharh Minhaj al-Tullab", 4/159; "Hashiyat al-Bujayrimi" on "Minhaj al-Tullab", 3/408-409).
The Hanbalis said: the agent of every guardian among the guardians stands in his place, whether the guardian is present or absent, one who may compel or not; for marriage is a contract of exchange, so delegation in it is permitted, as in sale, and by analogy with the husband's delegation:
It is reported that the Prophet (peace and blessings of Allah be upon him) delegated Abu Rafi' to conclude his marriage with Maymuna, and delegated 'Amr ibn Umayya al-Damri to conclude his marriage with Umm Habiba.Reported in the hadith collections
The guardian is not the woman's agent; for his guardianship was not established from her side. If the guardian were her agent, she could dismiss him like other agents. Her consent is considered only as a condition for the validity of his action, resembling the ruler's guardianship over her. Since it is established that he is not her agent, he may delegate the one who will offer her marriage without her consent and before her consent, even if she is not one who may be compelled; and his delegation does not require the presence of two witnesses, for it is the guardian's authorization to marry, which requires neither the woman's consent nor witnessing, like the ruler's authorization. What attaches to the principal attaches to the agent, including compulsion, for he is his deputy; the same applies to the ruler and the judge, who authorize another to marry.
However, the consent of a woman who may not be compelled is required for her guardian's agent, after his delegation, to marry her: her consent does not suffice for her guardian to marry her without consulting an agent, nor for that agent after she has delegated him; for he is the deputy of one who may not compel, so he has what his principal has, and her consent before the guardian's delegation has no effect: before the delegation he is a stranger, after it he is a guardian.
Al-Buhuti (may Allah have mercy on him) said: from this it is taken that if she authorized the more distant of the guardians to marry her while the nearer is competent, and guardianship then passes to the more distant, he must consult her after the guardianship has passed to him. And if the guardian of a woman who may not be compelled is delegated for her marriage, and the woman then authorizes the agent to marry her, that is valid, even if she did not authorize the guardian to marry her or to delegate; for he is not her agent. What is required of the guardian is required of the guardian's agent: uprightness and the rest, such as maturity of judgment, masculinity, puberty, reason and unity of religion; for it is a guardianship, which none but its rightful holder may exercise; and because if he may not marry his own match, all the more may he not marry, by delegation, the ward of another. The husband's agent's uprightness is not required: delegating a sinner for the acceptance is valid, for the sinner may validly accept marriage for himself, and so for another. Likewise, if a Muslim delegates a Christian to accept the marriage of a Christian woman, for the validity of that acceptance on his own behalf.
Delegation by the guardian to offer marriage is permitted without restriction, and her authorization of her guardian for the contract is absolute, as in the woman's saying to her guardian: marry whom you wish, or whom you approve; and the guardian's saying to his agent: marry whom you wish, or whom you approve. It is reported that a man of the Arabs left his daughter with 'Umar and said: if you find her a match, marry her to him, even if he were her match only as the sole of his sandal. 'Umar married her to 'Uthman ibn 'Affan, and she became the mother of 'Amr ibn 'Uthman; this became widely known and was not objected to: it is like delegation in sale and the like. The guardian is bound by the match if she authorizes him to marry her and she makes the authorization absolute as to the match; likewise his agent is bound by the match, apparently even without stipulation. He said in "Al-Targhib": if he stipulates and confines himself to it, mentioned in "Al-Mubdi'" and elsewhere; and perhaps what the author mentions is preferable, for absoluteness is construed toward what has no defect.
The agent may not marry her for himself, like the agent in sale who does not sell to himself; nor may the guardian, if the woman authorized him to marry her and made it absolute, on the sound view of the madhhab; for the absolute authorization requires marrying her to another, as settled in "Al-Sharh" and "Al-Mubdi'" at the end of the discussion of the two parties of the contract. He said in "Al-Insaf": as for him whose guardianship is by the Law, such as the guardian, the ruler and his deputy, he may marry himself off; and if we say they may not buy from the property, the qadi mentions it in his disagreement, and he assimilated the executor. He said in "Al-Qawa'id al-Fiqhiyya wa-l-Usuliyya": it merits examination, for the executor resembles the agent in acting by permission; the same applies to the orphan girl as to any other, the qadi stated it explicitly: that is when she has a considered authorization.
It is permitted for the absolute agent, and for the guardian if she authorized him to marry her and she made it absolute, to marry her to his son, his father, his brother or the like, if he is a match; for the wording embraces them; unlike the agent in sale, for he does not sell to one whose testimony in his favor would be rejected, since he would be under suspicion: the price is a pillar of sale, unlike the dower. His restricted delegation is valid, such as: marry so-and-so specifically, and he does not marry another, because of the limited scope of his guardianship. For the validity of the marriage, the guardian's word to the husband's agent, or the guardian's agent's word to the husband's agent, is required: I have married off so-and-so, daughter of so-and-so, naming her lineage, and so-and-so, son of so-and-so, naming his lineage; he does not name him here out of knowledge of him, in line with what precedes on requiring the designation of the two spouses. Or his saying: I have married your principal, so-and-so son of so-and-so, to so-and-so daughter of so-and-so. The guardian, nor his agent to the husband's agent, says: I married her to you, nor: I gave her to you in marriage. It is required that the husband's agent say: I have accepted her for so-and-so son of so-and-so, naming him, or: I have accepted her for my principal, so-and-so son of so-and-so; if he does not say that, it is not valid, unlike sale and the like ("Al-Mughni", 7/14-15; "Al-Sharh al-Kabir", 7/439; "Al-Qawa'id wa-l-Fawa'id al-Usuliyya" by al-Ba'li, p. 208; "Al-Insaf", 8/84; "Kashshaf al-Qina'", 5/60, 62; "Matalib Uli al-Nuha", 5/68-69; "Manar al-Sabil", 2/561).
The Hanbalis in the madhhab said: delegation in paying zakat is valid, but it is required that the agent be trustworthy and be a Muslim, on the sound view of the madhhab. On one view, delegating the dhimmi to pay it is permitted; for it is a handing over with authorization, as when a dhimmi is appointed to slaughter the sacrificial animal, which is permitted according to the two narrations. He said in "Al-Ri'aya": delegating the dhimmi to pay zakat is permitted if the principal intends it and the agent's intention suffices for him; otherwise not. Al-Mirdawi said: this is a strong position ("Al-Insaf", 3/198; "Matalib Uli al-Nuha", 2/124).
The Shafi'is said: delegating a man in the marriage of his wife's sister, for example, or of a fifth wife when he already has four, or in the marriage of his unmarriageable kin, such as his sister, is not valid ("Mughni al-Muhtaj", 3/195; "Nihayat al-Muhtaj", 5/23; "Hawashi al-Shirwani", 5/301). The Hanbalis said: a man may accept the marriage of his sister, from her father, to a stranger, and the like ("Al-Insaf", 5/356).
The second condition: knowledge of the agent. The jurists of the four schools, the Hanafis, Malikis, Shafi'is and Hanbalis, agreed that the agent must be known and specified, as in: I delegate so-and-so for such-and-such. It is not valid to say: I delegated one of these two, on account of ignorance. The Hanafis said: the agent must be known; delegating an unknown person is not valid. The creditor's word to his debtor, "Whoever comes to you bearing such a mark, or took your finger, or said such-and-such to you, hand over to him what I owe you", is not valid; for it is an unknown delegation, and he is not discharged by payment to him ("Hashiyat Ibn 'Abidin", 7/271).
The Shafi'is said: it is required without exception that the agent be specified. If he says: I authorize whoever wishes to sell my house to sell it, or says to two men: I have delegated one of you to sell my house, it is not valid, and neither of them may sell it. If he says: I delegated Zayd, without knowing who Zayd is, it is not valid. But if he says: I delegate you to sell such-and-such, O any Muslim, it is valid, apparently, and practice follows it. Al-Ramli (may Allah have mercy on him) said: al-Nawawi transmitted it in his fatwas from the companions, saying: the disposition of either of them does not take effect on the basis of this when the delegation concerns something in which specifying the agent has a purpose, such as delegation in sale and the like; for his specification is bound up with safekeeping and recourse. If the thing is not one in which there is a purpose, such as manumission, al-Subki said: it should be valid: if he says: I delegated whoever wishes for the manumission of this slave of mine, or for the marriage of this slave woman of mine, nothing prevents its validity. This shows that generalizing the delegated person is valid only in contesting adversaries, for lack of uncertainty (gharar); and so it is here.
Al-Ramli added: among the questions of our time is that a woman with no guardian authorize every marriage officiant in the town to marry her; and this investigation establishes the validity of such authorization, for she has no purpose in the persons of the officiants. Al-Adhra'i said: what is mentioned, if valid, belongs to the case where she has designated the husband and delegated only the formula of the contract; and that is apparently what is meant. Ibn al-Salah gave a verdict that if she authorized that the officiant in the town marry her to a husband specified by such a description, and her authorization was joined by an indication requiring specification, because a specified person had been mentioned before, or because she believed there was only one such, it is not permitted for every officiant to marry her; otherwise it is permitted ("Hashiyat al-Ramli" on "Asna al-Matalib", "Sharh Rawd al-Talib", 2/265; "Al-Najm al-Wahhaj", 5/26-27; "Mughni al-Muhtaj", 3/195).
Al-'Imrani (may Allah have mercy on him) said: if he says to two men: whichever of you sells my slave, it is permitted, and neither of them may sell him. Abu Hanifa (may Allah have mercy on him) said: if one of the two sells him, it is valid. Our proof: delegation is void through ambiguity of the agent, so it is not valid, as if one said: I delegated one of the children of so-and-so. If he says to a man: sell this man or this slave, he may not sell either of them, contrary to Abu Hanifa. Our proof: there is doubt about the object sold, so it is not valid, as if one said: I sold you this or that.
If he says: I delegate you to buy me a Turkish slave woman for a hundred, the fairest of them, and he buys for him one whose intercourse is unlawful for him, such as his unmarriageable kin or his wife's sister, the principal is not bound; for he bought for him what he was not permitted. And if he buys for him a slave woman who is the sister of a slave woman he already owns, whose intercourse is unlawful for him, Abu al-Mahasin said: the principal is not bound; and Abu Hanifa said: he is bound. Our proof: it is not lawful for him to consummate with her, so she is not imposed on him, like his wife's sister ("Al-Bayan", 6/408).
The Hanbalis said: specifying the agent is required for the validity of the agency. If he says: I delegated one of these two, it is not valid, on account of ignorance, for there is shared knowledge; the intended person must be known, by description, by gesture, or the like, which specifies him. The agent's knowledge of it, that is, of the delegation, is not required for the validity of the disposition: if he sells Zayd's slave thinking himself unauthorized, and it emerges that Zayd had delegated him to sell him before the sale, the sale is valid, considering the reality of the affair itself, not the opinion of the accountable person ("Al-Insaf", 5/355; "Kashshaf al-Qina'", 3/539; "Sharh Muntaha al-Iradat", 3/502; "Matalib Uli al-Nuha", 3/430; "Manar al-Sabil", 2/162).
As for the Malikis, al-Hattab (may Allah have mercy on him) said: here is a real question that spread confusion. When two adversaries have finished their dispute and agreed on a matter they wish to establish before the judge, some people refrain from going to the judge's court out of pride, and others due to an excuse. Each of the two adversaries then testifies that he delegated every Muslim for the claim, the formal notice, the establishment of proof and the request for judgment. Witnesses come attesting the delegation in favor of a man, and testify before the judge that such-and-such is the agent of so-and-so, and that another is the agent of the other, and they complete their affair. Is this delegation valid or not? Know that it is one of two things: either the principal intends, by his words "I delegated every Muslim for establishing such-and-such", to delegate each and every Muslim without specification; this is the immediate meaning, and there is no doubt about the invalidity of this route, on account of ignorance of the person of the agent ("Mawahib al-Jalil", 7/134).
The third condition: the agent's knowledge of the delegation. The jurists differed over the agent: is his knowledge required for the validity of the agency, or is it not required, his disposition being valid when he is delegated without knowledge of the delegation? The Hanafis held that the agent's knowledge of the delegation is required for its validity. If a man delegates someone to divorce his wife while the agent is absent and unaware, and he divorces her, the divorce is void; if he delegates him to buy something and he buys it without knowing of his delegation, the purchase is void; and so for all contracts; for the agency is not established before the agent's knowledge of it, like withdrawal ('azl), which is not established before his knowledge ("Bada'i' al-Sana'i'", 6/20-21; "Al-Mabsut", 19/127; "Al-'Inaya", 10/358-359; "Majma' al-Anhar", 3/307; "Hashiyat Ibn 'Abidin", 7/48).
The Shafi'is in the soundest view and the Hanbalis held that the agent's knowledge of the delegation is not required: if the agent acts before knowing of the delegation and then appears to have been an agent, his disposition is valid. Against the soundest view among the Shafi'is: his knowledge of it is required ("Rawdat al-Talibin", 3/498; "Hashiyat Qalyubi wa-'Umaya", 2/851; "Kashshaf al-Qina'", 3/538; "Sharh Muntaha al-Iradat", 3/502; "Manar al-Sabil", 2/162). The question was treated earlier, under the first pillar (the formula), with some detail.
The fourth pillar is the delegated object, which is the locus of the agency. The locus of the agency is the disposition the principal authorizes the agent to carry out, belonging to ownership or guardianship. Delegation and accepting delegation are valid only from one who may validly dispose in it, whether the agency is general or particular. The jurists have mentioned conditions for the locus of the agency, what admits it and what does not: some matters are agreed upon, others disputed. Here is the explanation in detail, condition by condition, with the questions under each.
First condition: that the delegated object be owned by the principal at the time of delegation. The jurists required, for the validity of the agency, that the delegated object be owned by the principal at the time of delegation; for delegating a disposition over what he does not own is inconceivable, the agency being valid only in what his disposition is valid in ("Rawdat al-Talibin", 3/489; "Mughni al-Muhtaj", 3/196; "Al-Najm al-Wahhaj", 5/30; "Nihayat al-Muhtaj", 5/24; "Asna al-Matalib", 2/260; "Al-Dibaj", 2/305; "Kanz al-Raghibin", 2/846; "I'anat al-Talibin", 3/163). On this basis, delegating to divorce a woman one will marry, to sell what one will come to own, or to marry one whose waiting period is ending, is not valid.
The Shafi'is in the soundest view and the Hanbalis in the madhhab stated explicitly that delegation is not valid for divorcing the woman one will marry, for marrying the one whose waiting period will end, for marrying off his daughter when her waiting period ends or her husband divorces her, for selling what one will come to own, for manumitting one he will come to own, or for paying a debt that will bind him; for he cannot carry out what was delegated to him at the time of delegation. The Shafi'is against the soundest view and the Hanbalis in one view held it valid, and that ownership occurring at the time of the disposition suffices: the disagreement comes back to whether consideration is given to the time of delegation or the time of the disposition.
That said, if what he does not own is attached to what he owns, such as delegating him to sell his slave and what he will come to own, there are two possibilities, upheld by al-Rafi'i and transmitted from Shaykh Abu Hamid (al-Ghazali) and others: validity, as in an endowment on his existing son and on those of his children yet to be born. If he delegates him to sell property he owns and to buy for him with its price such-and-such, the more widely held of the two views is the validity of the delegation for the purchase. If he says: I delegate you to litigate every adversary that arises for me, there are two views: the Basrians held it void and the Baghdadis valid. Ibn al-Salah transmitted validity where one is delegated to sell a fruit before it appears, for one owns its origin ("Rawdat al-Talibin", 3/489; "Mughni al-Muhtaj", 3/196; "Al-Najm al-Wahhaj", 5/30; "Nihayat al-Muhtaj", 5/24; "Asna al-Matalib", 2/260; "Al-Dibaj", 2/305; "Kanz al-Raghibin", 2/846; "I'anat al-Talibin", 3/163).
The Hanbalis said: the agency is not valid for selling what one will come to own, nor for divorcing the one he will marry, for the principal does not own them at the time of delegation. If he says: if I marry so-and-so, I have delegated you to divorce her, it is not valid, unlike: if I buy so-and-so, I have delegated you to manumit him; for conditioning on his property is valid, unlike conditioning on his marriage. The agency is not valid for selling what one will come to own following the delegation, in addition to the sold property owned at the time of delegation, as in the principal's word to his agent: sell this animal and what it will produce, or sell it and buy with its price such-and-such, meaning a known share. As for: sell what comes from the animal, such as its yield, its wool and its hair, it is not valid, for it does not exist ("Al-Insaf", 5/355-356; "Kashshaf al-Qina'", 3/540; "Sharh Muntaha al-Iradat", 3/505; "Matalib Uli al-Nuha", 2/260).
The jurists required of the delegated object that it be known, even in some respect, without requiring knowledge in every respect; otherwise the agency is void. Al-'Imrani (may Allah have mercy on him) said: the agency is valid only for a known disposition; if he says: I delegate you for everything, little and much, it is not valid; most of the scholars said so ("Al-Bayan", 6/406). The question was treated in detail under the types of agency (general and particular), and the scholars' views on requiring knowledge of the delegated object were reported in detail; I mention them here briefly.
The Hanafis said: the principle is that ignorance which prevents execution and cannot be known prevents the validity of the agency; otherwise not. Ignorance is of three types. The first is grave ignorance: that of the genus, which prevents the validity of the agency, whether the price is specified or not, as in delegating him to buy a garment or a mount. The second is slight ignorance: that of the pure species, as in delegating him to buy a horse, a donkey, or a harawi or marwi garment: the agency with it is permitted even if the price is not specified; Bishr dissented, holding it not permitted, and the proof against him is the report that the Prophet (peace and blessings of Allah be upon him) delegated Hakim ibn Hizam to buy a sheep for the sacrifice. For ignorance of the species does not impair the purpose, and it can be averted by directing the delegation to what suits the principal's situation: thus if an ordinary man delegates someone to buy a horse and he buys a horse fit for kings, it does not bind him. The third is ignorance between species and genus, as in delegating him to buy a slave or a slave woman: if he specifies the price or the species, saying: a Turkish or Abyssinian slave, the agency is permitted; if he specifies neither, it is not permitted; for the price makes known the species intended, and the species makes known its price, and the remaining ignorance is then slight and does not prevent validity; unlike ignorance of the genus, which prevents validity even with the price specified, for at that price there is something of every species, so it yields no knowledge ("Tabyin al-Haqa'iq", 4/258-259).
The Prophet (peace and blessings of Allah be upon him) delegated Hakim ibn Hizam to buy a sheep for the sacrifice.Reported by the hadith scholars
The Malikis held that the delegated object must be known by the text, the indication, or custom. If he says: I delegate you, it yields nothing until he restricts it by the delegation or a specific order. If the principal's word is general, custom specifies it: if he says: I delegate you for the sale of my mounts, and custom requires restricting it to certain kinds of mounts, it is restricted; likewise if he says: I delegate you for the sale of this merchandise, a general word for its sale in every place and time: if custom holds that it is sold in a particular market or at a particular time, the generality is specified. Likewise if the delegated thing is absolute, or the principal's word is: it is restricted by custom, as if he says: buy for me: it is restricted to what befits him, and the agent does not exceed what he was delegated for, whether specified by the text, particularized, or restricted; and it is custom that specifies and restricts ("Al-Sharh al-Kabir" with "Hashiyat al-Dasuqi", 5/57-58; "Al-Taj wa-l-Iklil", 4/199-200; "Mawahib al-Jalil", 7/147-148; "Tathbir al-Mukhtasar", 4/282; "Sharh Mukhtasar Khalil", 6/70-71; "Minh al-Jalil", 6/638).
The Shafi'is said: it is required that the delegated object be known in some respect in which uncertainty is small, whether the agency is general or particular; knowledge in every respect is not required; for permitting the agency out of necessity requires leniency: it suffices that it be known in a respect that reduces uncertainty for the agent, unlike when it is great. If he says: I delegate you for everything, little and much, of my affairs, or for all my affairs, or: I have delegated everything to you, or: you are my agent, dispose as you wish, and the like, the delegation is not valid; for it includes what he can and cannot do, the harm grows and the uncertainty multiplies. But if he says: I delegate you for the sale of my properties, the collection of my debts and their recovery, the manumission of my slaves, the return of my deposits, and the litigation of my opponents, and the like, it is valid, even if he is ignorant of the properties, the debts and their debtors, the slaves and the deposits and their custodians, the opponents and the subject of the dispute; for the uncertainty is small: he knows his property and his debt. Unlike: sell part of my property, or a portion, or a share of it, or: sell this or that: not valid, for the great uncertainty. If he says: sell, or give away, from my property, or: pay from my debts whatever you wish, or: manumit or sell from my slaves whoever you wish, it is valid for some, not for all, so the agent does not act for all, for "from" indicates division. If he says: marry me to whomever you wish, it is valid, as in: sell from my property whatever you wish. If he says: discharge so-and-so of whatever you wish from my property, it is valid, whether he leaves some of it or discharges him of all of it, in whole or in part: that is valid. And if he says: I discharge him of some of it, he discharges him of the least to which the name applies, as the principal does. For the validity of the delegation in discharging a debt, the principal's knowledge of the amount of the debt suffices, even if the agent and the debtor are ignorant of it.
If he delegates him to buy a slave, the species must be stated, such as Turkish or Indian; mention of the genus alone does not suffice, as: a slave, for purposes differ accordingly; and if the attributes within one species vary, the category must be stated, such as Khatabi or Qafjaqi. The attributes required for salam are not required, nor what approximates them, by agreement. If he delegates him to buy a slave, the statement of the species must be joined by stating male or female, to reduce uncertainty, for purposes differ accordingly; if he says: buy me a slave as you wish, it is not valid, for the great uncertainty. If he delegates him to buy a house, the neighborhood must be stated, the street, and knowledge of the town and the like is required by necessity. For buying a shop, the market is stated, to reduce uncertainty; and by analogy. If he delegates him to marry him to a woman without designating her, the delegation is not valid; unlike: marry me to whomever you wish, which is valid, as in delegating him to buy a slave he did not describe; unlike the first, for it is absolute, and the indication of the general term to singularity is apparent, unlike the absolute, which has no indication of singularity. Stating the amount of the price is not required, on the sounder view, in what was mentioned; for his purpose may attach to a single one of that species, precious or lowly. In the second case, the amount must be stated, such as a hundred, or its limit: from a hundred to a thousand, because of the apparent difference. All this when the purpose is acquisition; for trade, neither the statement of a species nor anything else is required; it suffices: buy whatever you wish of the goods, or what carries profit and benefit. If he says: buy me a Turkish slave of such description, at whatever you wish, it should be restricted to the price of the equivalent, for permitting an excess is uncertainty, like the general delegation; likewise if he says: at the price of the equivalent and more, he is not heeded. Attention should be paid to this, for it happens often in delegations, and judges validate them without noticing. If he says: sell this slave at whatever price you wish, small or great, it is valid, as if he had settled himself on the least: there is no uncertainty; as for the agency being void entirely, that does not appear ("Al-Muhadhdhab", 1/350; "Rawdat al-Talibin", 3/493, 495; "Mughni al-Muhtaj", 3/199, 201; "Al-Najm al-Wahhaj", 5/36, 38; "Nihayat al-Muhtaj", 5/29-30; "Al-Dibaj", 2/308; "Kanz al-Raghibin", 2/849-850; "I'anat al-Talibin", 3/169-170).
Al-Mawardi (may Allah have mercy on him) said: as for the second condition, namely mentioning what one is delegated for, it divides into three categories: a category general in all circumstances, a category specific to a particular situation, and a category general in one respect and specific in another. The first category, general in all circumstances, takes the form: I have delegated you for everything, or: I have delegated you for everything, little and much, or: I have delegated you to do what you see as beneficial for my property. This is a void delegation, for ignorance of it and for the contradiction of possibilities: it is possible to suppose delegation for preserving little and much, and possible to suppose selling little and much, two opposed contraries, so the agency is void on account of it. The second category, specific to a particular situation, takes the form: I have delegated you to sell this slave, or buy this house, or collect this debt, or confirm this bequest, or litigate this claimant: the agency is then valid specifically for what is authorized, to the exclusion of the rest. This is what Abu Hanifa followed, though he differs over the bequest: Abu Hanifa makes the executor of one thing an executor of everything, and does not make the agent of one thing an agent of everything; in al-Shafi'i's view the two are alike: their action is limited to what is authorized, to the exclusion of the rest.
The third category, general in one respect and specific in another, is of two kinds. The first: the specification makes the generality known, and the agency in it is valid, as in: I have delegated you to sell everything, little and much, of my property; for specifying the sale has made known what is meant by the generality of my property. The second kind: the generality does not become known by the specification mentioned, and the agency in it is void, as in: I have delegated you to buy whatever you see of everything, little and much, of my property; for the genus of what he will buy with his property does not become known, so the agency is void. Likewise: buy for me with this thousand whatever you see of the goods, or what you find profitable in discharging a debt: the agency in it is void, unless his purpose is seeking profit without acquisition, as in mudaraba. If it is said: is it not that when capital is put into a mudaraba for the worker to buy whatever he sees as beneficial, it is permitted; why not the like in delegation? It is said: the difference is that the purpose in mudaraba is seeking profit, which the difference of genera does not affect, so the purpose is known and it is valid; while the purpose in delegation is your acquiring the purchased object itself, and its absoluteness despite the difference of genera does not make the purpose known, so it is void. On these principles the answer to what the principal intends is formulated, and by them the ruling on each case becomes clear.
Thus if he says: I have delegated you to buy a slave, it is not valid until he describes him by what distinguishes his purpose in the slave for the agent, namely the genus and the species; and he does not need to mention the attributes required in salam, for that would constrict people. If he says: I have delegated you to buy whomever you see of the slaves, or to buy whatever you see of the horses, it is not permitted, because of the difference of slaves and horses and the agent's ignorance of the purpose. Likewise: sell whomever you see of my slaves, or: sell whatever you see of my horses, is not permitted, whether he mentions the number or not, until the sold and the bought are distinguished from others by an attribute or a gesture. Some of our companions said: he may delegate him to buy a slave or a garment without pointing to its attributes, relying on the opinion of the delegated agent; and on the first madhhab, concluding the contract of agency and specifying the agent are not valid unless he binds himself to it at once ("Al-Hawi al-Kabir", 6/498-499).
The Hanbalis added: the delegation is not valid if the principal says to his agent: buy whatever you wish, or: buy a slave at whatever price you wish; for what may be bought, and what may be bought with, is plentiful, so the uncertainty multiplies, until he states for the agent the species and the amount of the price to be paid; for uncertainty is removed only by mentioning both things, unless the amount of its price is known among the people, as with measured and weighed things: there is then no uncertainty and no harm. If he says: buy this and that, the delegation is not valid, for ignorance. Like his saying: I delegate you for everything, little and much: if he says: buy me whatever you wish of such merchandise, it is not valid, for he may buy what he cannot pay the price of ("Matalib Uli al-Nuha", 3/433, 435; "Al-Mughni", 5/55; "Al-Insaf", 5/392; "Kashshaf al-Qina'", 3/562-563; "Manar al-Sabil", 2/163). The question was treated with some detail under the types of agency.
The third condition: that the delegated object admit representation. The jurists required of the locus of the agency that it admit representation: what permits representation, the agency in it is valid; what does not permit it, the agency is not valid in it. The jurists also laid down a criterion for the locus of the agency: every contract a person may conclude himself, he may delegate another in; for a person may be unable to act himself in some situations, and needs to delegate another, as a way of meeting his need, and so that it may admit representation. What admits representation may be delegated in; what does not admit it may not be delegated in ("Al-Hidaya", "Sharh al-Bidaya", 3/136; "Sharh Mukhtasar Khalil", 6/68; "Mughni al-Muhtaj", 3/196).
The chapter concludes with the purpose of delegation: securing the benefit of the human being, created to worship Allah ("Maratib al-Ijma'", p. 61; "Fatawa al-Saghdi", 2/596-597; "Bada'i' al-Sana'i'", 6/23-24; "Al-'Inaya", "Sharh al-Hidaya", 11/104; "Al-Ikhtiyar", 2/192; "Al-Jawhara al-Nayyira", 3/478; "Al-Lubab", 1/556-557; "Mukhtasar al-Wiqaya", 2/172-173; "Al-Sharh al-Kabir" with "Hashiyat al-Dasuqi", 3/52-53; "Al-Mukhtasar al-Fiqhi", 10/267, 269; "Tathbir al-Mukhtasar", 4/278-279; "Bidayat al-Mujtahid", 2/226; "Al-Taj wa-l-Iklil", 4/195; "Mawahib al-Jalil", 7/123, 125; "Sharh Mukhtasar Khalil", 6/68, 70; "Hashiyat al-Sawi" on "Al-Sharh al-Saghir", 8/36; "Al-Muhadhdhab", 1/348; "Al-Hawi al-Kabir", 6/496-497; "Al-Bayan", 6/396-397; "Rawdat al-Talibin", 3/490; "Mughni al-Muhtaj", 3/197-198; "Nihayat al-Muhtaj", 5/27-28; "Kanz al-Raghibin", 2/847-848; "Al-Najm al-Wahhaj", 5/32-33; "Al-Dibaj", 2/306; "Al-Mughni", 5/52; "Al-Sharh al-Kabir", 5/205; "Al-Mubdi'", 4/357-358; "Al-Insaf", 5/360; "Kashshaf al-Qina'", 3/539, 543; "Sharh Muntaha al-Iradat", 3/506, 511; "Al-Ifsah" by Ibn Hubayra, 1/452).
The jurists of the four schools agreed on the validity of delegation in hire (ijara). Ibn Hubayra (may Allah have mercy on him) said: they agreed that the agency is among the contracts permitted in principle, and that everything in which representation among rights is permitted, delegation in it is permitted, such as sale, purchase and hire ("Al-Ifsah" by Ibn Hubayra, 1/452, and the previous sources). Ibn Qudama (may Allah have mercy on him) said: delegation in hire is permitted, for it belongs, in meaning, to the contracts in which representation is permitted.