Agency for guarantee and surety

The jurists first discussed a preliminary question on the payment of a transferred debt: when one of the two is asked to pay, two views clash. According to the first, payment is obligatory on him, because it has been established that the right was transferred to him, so that he becomes like an heir. According to the second, payment is not obligatory on him, because paying does not discharge: the holder of the right may come, deny the hawala (transfer of debt) and claim compensation; and even if he calls him a liar, payment will not become obligatory on him in all cases.

Should the debtor then take an oath? If we say that, once he is believed, payment becomes obligatory on him, then he is made to swear, for he may fear the oath and thereby be believed, which will make payment obligatory. If we say that payment is not obligatory on him even after confirmation, he is not made to swear, because the oath is presented so that he may fear it and be believed; and if, when believed, payment does not become obligatory, presenting the oath has no meaning (al-Muhadhdhab, 1/356).

The jurists of the four schools agree on the validity of agency for guarantee (daman) and surety (kafala). Ibn Qudama (may Allah have mercy on him) says: it is permitted to appoint an agent for guarantee and surety, and we know of no difference of opinion on this (al-Mughni, 5/52).

The formula of guarantee by agency is to say: "I have made my agent a guarantor to you of such and such an amount" (al-Najm al-Wahhaj, 5/33; Hashiyat al-Bajirmi on Minhaj al-Talibin, 3/19; Rawdat al-Talibin, 3/490; Hashiyat Qalyubi and 'Umayra, 2/848, and the previous sources).

Ibn 'Arafa (may Allah have mercy on him) reports that Ibn al-Hajib and Ibn Shas said: agency is permitted for surety, as it is for hawala and sale. Ibn 'Abd al-Salam (may Allah have mercy on him) explains: that is, one may appoint someone to stand surety for him in a right owed by him. Ibn 'Arafa (may Allah have mercy on him) objects: this deserves examination, for agency is used in customary reality only for what the agent can perform directly, whereas a person standing surety for himself is impossible: this must therefore be pondered.

Ibn Harun (may Allah have mercy on him) defines it: it is to appoint the agent to stand surety, on behalf of the principal, toward so-and-so for what is owed by so-and-so. Ibn 'Arafa (may Allah have mercy on him) holds this formulation closer to the mark than the first, for in this example the act is within the principal's own capacity; it should be added that he undertook, toward the creditor, to bring him a surety, so that bringing the surety becomes a right over the principal (al-Mukhtasar al-fiqhi, 267-268; Manh al-Jalil, 6/357; Hashiyat al-Dasuqi, 5/53). Al-Kharashi (may Allah have mercy on him) says: he may appoint someone to stand surety for him toward so-and-so for what is owed by so-and-so, or to bear, in his place, a right owed by him (Sharh Mukhtasar Khalil, 6/69; Tahrir al-Mukhtasar, 4/279).

The Hanafis, however, mention that appointing an agent as a guarantor with property (kafil bil-mal) is not valid, whereas appointing a guarantor with his person (kafil bil-nafs) is valid, unlike the validity of agency for surety and guarantee. In their view, appointing a guarantor with property is void, whether the surety preceded the agency or followed it.

Agency for money exchange (sarf)

All scholars agree on the validity of agency for money exchange (sarf). Imam Ibn al-Mundhir (may Allah have mercy on him) says: everyone whose views we preserve, among the people of knowledge, agrees that agency for exchange is permitted.

If a man appoints a man to exchange dirhams for him, and another appoints a man to exchange dinars for him, and they meet and exchange, the exchange is valid, even if both principals, or one of them, are absent.

If a man appoints two men with dirhams to exchange them, neither may exchange them without his partner; if they exchange them together, it is valid. If one of them rises from the place of exchange and leaves before the exchange takes place, the exchange is annulled, for the Prophet (peace and blessings of Allah be upon him) said:

"Silver for gold is usury, except hand to hand."Narrated by al-Bukhari and Muslim

The partisans of opinion (ashab al-ra'y) say: if one rises before taking possession, the share of the one who left is annulled, and the share of the one who remains is valid.

Abu Bakr says: the principal did not assign the matter to one of the two to the exclusion of the other, and the act of one without the other is not permitted. There is a basis for this in the Book of Allah:

"If you fear a breach between the two of them, appoint an arbitrator from his family and an arbitrator from her family."
Surah An-Nisa, 35

And neither of the two arbitrators may act except together with his companion. Ibn 'Abbas (may Allah be pleased with them both) said: "Mu'awiya and I were appointed as arbitrators, and it was said to us: if you see fit to unite, unite, and if you see fit to separate, separate."

Abu Bakr says: if the two agents entrusted the owner of the money with taking the dinars, and the owner, the principal, takes them himself, the exchange is annulled; for taking is the task of the two agents, who concluded the contract of exchange. This is the madhhab of al-Shafi'i and of the partisans of opinion, and it is what we follow (al-Ishraf, 8/312-313).

The scholars supported this with what al-Bukhari reported, titling the chapter: "Chapter on agency in exchange and weighing, while 'Umar and Ibn 'Umar appointed agents for exchange." He reports there, through Malik from Abd al-Majid ibn Suhayl ibn Abd al-Rahman ibn Awf, from Sa'id ibn al-Musayyib, the hadith of Abu Sa'id al-Khudri and Abu Hurayra (may Allah be pleased with them): the Prophet (PBUH) appointed a man as collector at Khaybar; he brought them superior janib dates; the Prophet said to him: "Are all the dates of Khaybar like this?" The man replied: "We take a sa' of this for two sa's, and two sa's for three." The Prophet said: "Do not do that: sell the mixed lot for dirhams, then buy janib dates with the dirhams, and the same applies to weighing."

"Do not do that: sell the mixed lot for dirhams, then buy janib dates with the dirhams, and the same applies to weighing."Narrated by al-Bukhari (2180)

Badr al-Din al-'Ayni (may Allah have mercy on him) comments on this hadith: this chapter establishes the ruling of agency in exchange, that is, the sale of currency for currency; "weighing" designates agency for what is weighed.

'Umar and Ibn 'Umar did indeed appoint agents for exchange: these are two suspended reports (mu'allaq). That of 'Umar is connected by Sa'id ibn Mansur, through Musa ibn Anas from his father: 'Umar gave him a vessel inlaid with gold and said to him: "Go and sell it." He sold it to a Jew for twice its weight; 'Umar said: "Return it." The Jew said: "I will add more." 'Umar said: "No, unless at its weight." That of Ibn 'Umar is likewise connected by Sa'id ibn Mansur, through al-Hasan ibn Sa'd: "I had dirhams with Ibn 'Umar and had obtained dinars from him; he sent me to the market with a messenger who said: if the price stands, offer them to him; if he takes them, well; otherwise buy his due for him, then pay it to him."

The correspondence with the chapter lies in the Prophet (PBUH) telling the collector of Khaybar: "Sell the mixed lot for dirhams, then buy," that is, buy janib with the dirhams: this is agency for selling and buying; and the sale of food for food, hand to hand, is exactly like exchange, as is the sale of a dirham for a dirham and a dinar for a dinar, without anyone being able to object ('Umdat al-Qari, 12/130-131).

Ibn Battal (may Allah have mercy on him) says: the correspondence is sound, and the sale of food for food, hand to hand, resembles exchange in meaning; that is why this hadith was placed under the chapter of agency for exchange. Agency proved valid in this hadith because the Prophet (PBUH) told the collector of Khaybar "sell the mixed lot for dirhams" after he had sold contrary to the sunna; had the sale by the agent or the overseer of the property been invalid, the Prophet (PBUH) would have informed him that his sale was annulled, even had it conformed to the sunna; but the Prophet only forbade the usury committed in selling a sa' for two sa's, which proves that a sale conforming to the sunna is licit (Sharh Ibn Battal, 6/436-437).

Ibn Rushd (may Allah have mercy on him) says: the condition for the scope of agency is that the object be susceptible to representation, such as sale or exchange (Bidayat al-Mujtahid, 2/226).

The Hanafis say: when the two agents exchange, they must not separate before mutual taking of possession, just as if they had contracted for themselves; for the rights of the contract attach to the contracting party, whether he acts for another or for himself. See how dispensing with attributing the contract to another occurs, and the absence of the principals does not harm them, the latter being, in the rights of the contract, like strangers. If the agent leaves his partner before taking, the contract is void, due to separation occurring without taking of possession. The separation of the principal is not taken into account, for he is not a contracting party, and what is owed by the contract is taking by the contracting party, that is, the agent: his taking is therefore valid even though the rights do not attach to him, like the minor and the interdicted slave, unlike the messenger, for the message bears on the contract and not on the taking, and his words transfer to the sender, so that the messenger's taking is that of a non-contractor and is therefore not valid. Al-Haddadi reports that in his commentary it is said: disposition by message is not valid, for the rights of the contract attach not to the messenger but to the sender, the two being distinct at the time of the contract; that is why it is not permitted. In al-Mustasfa: the words "the separation of the principal is not taken into account" mean it is only disregarded if he comes after the sale before the taking; but if he comes to the sitting where the agent contracted, the contract transfers to him and his separation is taken into account, for being present in the sitting he becomes as if he exchanged himself, and the agent's separation is then no longer taken into account (al-Jawhara al-Nayyira, 3/482-483; al-Lubab, 1/558).

They also say: if a man appoints two men for exchange, neither may act alone, for he delegated to them a matter requiring consultation, and the opinion of one is not the opinion of two. If they contract together and one leaves before the taking, his share is annulled and the share of the other remains valid, as if they had contracted for themselves; if they both entrust the owner of the money with the taking or the delivery and then leave, the exchange is void, due to the separation of the two contracting parties before mutual possession, the owner of the money being, in the rights of the contract, like another stranger.

If the agent exchanges and they both take possession, and the one who received the dirhams acknowledges having received them in full, and then a counterfeit dirham is found among them which the agent accepts, acknowledging it came from his dirhams, while the principal denies it, that dirham binds the agent: the taker cannot claim unfairness after acknowledging full discharge of his due; the counterfeit is charged to the agent by his own admission, and his admission is not proof against the principal.

If he is appointed to exchange these dirhams for dinars and he exchanges them, the agent may not thereafter dispose of the dinars, for the agency has ended: the dinars received are a trust in his hand for the principal, which he may not dispose of without an order.

If he is appointed to buy a silver ewer at its equivalent from a man, and he buys it with dirhams or dinars, the purchase is valid on behalf of the principal, and valid too if he did it for himself, for general agency for purchase refers to purchase with cash; he thus intended, by his intention, to comply with the principal's order, and he cannot remove himself from the agency except by an authorization from the principal. If, however, he buys it with something weighed or measured, at an equivalent price or not, it is not valid on behalf of the principal, for general agency for purchase is restricted to purchase with cash; buying with something else is a divergence, and he becomes a buyer for himself. If he is appointed to sell silver of which the price is not specified, and he sells it for more silver than it, it is not valid, just as if the principal had sold it himself, and the agent does not guarantee: the agent guarantees only for diverging from the order, not for the invalidity of the contract. The principal has more right to this silver than the agent: he takes from it the weight of his silver, for his silver has become a debt upon the taker, who has reached the genus of his due in the debtor's property, so he takes from that sum the measure of his right, the remainder remaining in the agent's hand until returned to its owner (al-Mabsut, 14/60-61; al-Muhit al-Burhani, 7/406-407).

The Malikis: Ibn Shas (may Allah have mercy on him) says that agency for exchange is valid if the agent takes charge of both the contract and the taking; if only one of the two is entrusted to him: as for the taking, if the principal is absent at the moment of taking, the exchange is corrupted, and if it occurs in the principal's presence, it is valid. An absolute prohibition has been narrated; Qadi Abu al-Walid (al-Baji) understood it absolutely and recorded two views in the madhhab on requiring that the principal take himself for the validity of the exchange ('Aqd al-Jawahir al-Thamina, 2/632). As for the contract, the agent's ruling is that of the principal in the first question.

In "Tahrir al-Maqala fi Sharh al-Risala": agency for exchange is valid if one appoints a trustworthy man, knowledgeable of what is lawful and unlawful in the matter; if he contracts and you come before the taking, he takes and hands it over to you so as to be himself the contracting taker; if he authorizes you to take in his presence, the exchange is not corrupted: so held al-Lakhmi and Ibn Rushd. Ibn Bashir says it is disliked. Al-Mazuri transmits from Ibn al-Qasim: "There is no good in it," and from Ashhab: "It is not annulled." If the principal is absent before your taking and you take validly after him, al-Mazuri says there is no documented disagreement on its annulment (fasakh), while some elders of the madhhab hold it merely disliked, immediate settlement (munajaza) being obtained.

Ibn 'Arafa (may Allah have mercy on him) specifies that this view is al-Lakhmi's, who argued: agency for giving and taking in the principal's presence does not corrupt the exchange, and likewise after separation; for the words "hand to hand," if understood as immediate settlement, are satisfied, and if understood as the contracting party being the giver, corruption would follow even with immediate settlement.

In "al-Muwaziyya": if two men exchange dirhams for dinars between themselves, then one entrusts the other at that moment with the taking of his share, there is no harm, and the same applies to the jewel (huliyya). Ibn Rushd (may Allah have mercy on him) reports: if one appoints his companion to take what they contracted and leaves before the taking, and he hears 'Isa ibn al-Qasim on its permissibility, it applies; for the stranger (third party to the contract), it is not permitted.

Three views emerge on the separation of partners in exchange: permission for the partner and the stranger, by extension from its permission for the partner; prohibition in both, by extension from its prohibition for the stranger; the third view: separation is permitted for the partner, for his hand is like his partner's hand, and prohibited for the stranger. It is then said that prolonging the sitting after the contract of exchange and before immediate settlement (munajaza) is corrupting, even if they do not separate until mutual possession; Ibn Shas transmitted it (Tahrir al-Maqala fi Sharh al-Risala, 5/97-98).

The Shafi'is say: if two men exchange and one of them wants to leave the sitting before the taking, appointing an agent to remain in the sitting, it is not valid, and the contract is annulled by the principal's separation, execution depending on the contractor's remaining in the sitting. If the contractor dies, does his heir stand in his place for the taking, so that the contract remains valid? Two views, reported by al-Imam (al-Shafi'i) and al-Ghazali in al-Basit, on the basis of the survival of the sitting option (Rawdat al-Talibin, 3/490, 493).

Agency for salam (forward sale)

The jurists of the four schools affirmed the validity of agency for salam. The Hanafis say: agency for concluding the contract of salam is permitted, for it is a contract he can conclude himself, and he can therefore delegate its conclusion; and this means agency on the side of the owner of the salam, who concludes the salam for his agent. As for agency on the side of the one to whom delivery is due, appointing someone to receive the salam on his behalf, it is not permitted: the agent would be selling food charged upon his own liability (dhimma) on condition that the price go to another, which is invalid (al-Jawhara al-Nayyira, 3/482; al-Lubab, 1/558).

Al-Sarakhsi (may Allah have mercy on him) says: if a man appoints a man to deliver dirhams for him in a kurr of wheat, and the agent concludes the salam according to its conditions, it is valid; the agent is the one who demands delivery of what was promised at the due date, and the one who delivers the capital. If he pays the principal's dirhams, he takes what was promised and hands it to the principal; if he pays his own dirhams and the principal gave him nothing, what he paid reverts against the principal. The agent may therefore take the salam, and once taken, withhold it from the principal until he recovers his dirhams: if what was taken perishes in his hand before he withholds it, it perishes as a trust; after withholding, Abu Yusuf says it perishes as a pledge, whereas Abu Hanifa and Muhammad say the debt lapses, whether the pledge's value decreased or increased.

If he paid the capital from the principal's property and took for the salam a guarantor or a pledge, it is valid; if, when the salam falls due, the agent defers delivery, or releases the debtor of the food, or gives it to him as a gift, it is valid but the agent guarantees to the principal; likewise if he transfers the debt to a rich man or a poor one, releasing the first: that is charged to him in particular, and the principal guarantees with his food. If the food demanded is of a lower quality than the condition, it is valid and the principal may have the agent guarantee the equivalent of his food; if he abandons the salam or cancels it for compensation, it is valid and he guarantees the food to the principal, according to the view of Abu Hanifa and Muhammad (may Allah have mercy on them both).

If the agent concludes the contract of salam, then the principal orders the payment of the capital and the agent leaves, the salam is void; likewise if the one owing the salam appoints a man to take the capital and leaves the sitting before his agent has taken the capital, the salam is void.

If the agent diverges by concluding the salam otherwise than ordered, the principal may have the agent guarantee his dirhams, or the beneficiary if he wishes: if the agent guarantees, the salam remains valid against him; if the beneficiary guarantees while they are still in the sitting, namely the agent and the beneficiary, and the agent pays other dirhams, the salam is valid; if he guarantees after they have left the sitting, the salam is void.

Al-Sarakhsi adds: if ten dirhams are handed to a man to deliver them in food, and the agent entrusts the act to a man who contracts, attributing the contract to the principal's dirhams, the contract belongs to the principal; if he attributes it to his own dirhams, he has contracted for himself; if he contracts with ten unattributed dirhams and then intends them for the principal, the contract is for the principal; if he intends them for himself, the contract is for him. If he has no intention at the moment of the contract: if he pays his own dirhams, the contract is for him; if he pays the principal's dirhams, it belongs to the principal according to Abu Yusuf. Muhammad says: he contracts for himself as long as he has not, at the moment of the contract, intended it for the principal; if the two lie about the intention, the principal saying "I intended it for me" and the appointed one "I intended it for myself," the food belongs to the one who paid his dirhams, by agreement (al-Mabsut of al-Sarakhsi, 12/202, 204; al-Fatawa al-Hindiyya, 3/198-199).

The "Mudawwana al-Kubra" reports a long discussion on agency for salam: Sahnun says: if I say to a man "take for me dirhams as salam in food for a term" and the man does so, taking for me dirhams as salam in food for a term, it having been taken only for me, does the salam bind me or not in Malik's view? He replied: that binds the principal in Malik's view. Malik also said: if the buyer stipulates of the appointed agent that, if he is not satisfied with the one named to him, the one who charged him guarantees the sale until delivery at the term, that is permitted. Malik gives the example of a man saying to another: "Buy me a servant, a mount or a garment in the market"; the agent goes to the seller and says: "So-and-so sent me to buy a garment for him"; the sellers reply: "We sell on condition that your principal confirms the price; otherwise the price is upon you, payable in cash or on term": that is permitted.

Sahnun asked further: if a man is ordered to buy a slave-girl, or to buy a garment without specifying the type of garment or of slave-girl, and he buys, does the purchase bind the principal? He replied: if the agent buys a slave-girl whom he knows to be like those serving the principal, or fit to be among his slave-girls, it is valid on behalf of the principal; one examines the principal's standing: what matches his ways binds him; what resembles neither his garments nor his slave-girls is not charged to him, unless he accepts it, and then it remains upon the appointed one. That is Malik's opinion, as far as has reached me.

Sahnun says he asked Malik about bidding: a man auctions with another for a slave-girl, to buy her for him for forty dinars, and he buys her for thirty dinars, or more, describing her qualities. Malik replied: if he buys her at the lowest price, matching the description, that binds him; if he buys her for more by a dinar or two, or by an increase of the like order, that also binds the principal, who remains liable for it, and the goods belong to the principal if they match the description; if the increase is considerable, such that one would not suppose such an increase upon such a price, the principal has the choice: if he wishes, he gives the surplus and takes the goods; otherwise they remain upon the appointed one, who guarantees to the principal what he bid with him. And he said: I hold that, if the increase is considerable and the goods are lost or carried off before the principal accepts them, their loss falls upon the appointed one, who returns the money to the principal; if the increase resembles the price, the loss falls upon the principal, and the increase remains owed by him, the appointed one recovering it from him, for the goods are his goods and he has no option over them.

Sahnun finally asked: if I hand money to a man to deliver it for me in food, and he concludes the salam for himself, his wife, his father, his son, his grandson, his mother, his grandfather or his grandmother, his mukatab, his mudabbar or his mudabbara, his concubine (umm walad), his slave licensed for trade, the slaves of his minor children under his guardianship, or those of his wife, or of any of these, is it permitted? He replied: I have heard nothing from Malik on this, and I hold it all permitted, except for himself, his young son, or those under his guardianship such as the orphan or the spendthrift and their like; apart from these, among those you mentioned, I hold the salam permitted provided no favoritism on his part is recognized and the sense of the purchase is clearly established. If he concludes it for a partner in mufawada, I hold it not permitted, for delivering to his mufawad partner is delivering to himself; if he concludes it for a partner in sharika 'anan, which is not a mufawada partnership, there is no harm; and if he concludes it for a Christian or a Jew, there is no harm (al-Mudawwana al-Kubra, 9/49-50).

The Shafi'is say: agency is valid for both sides of the sale in all its types, such as salam, exchange (sarf) and tawliyya, among others (Rawdat al-Talibin, 3/490, and the previous sources).

The formula of agency for salam: "So-and-so appointed so-and-so to hand over to so-and-so, at its equivalent, or to pay from his property to whom he wishes an amount of such and such, a lawful salam, in what the said agent deems fit among measured, weighed, counted and cultivated things on which the contract of salam is lawfully concluded, in one payment or several, as the agent sees fit, at an immediate, installment-based or deferred due date, and to pay the capital of the salam in the sitting of the contract concluded between the two of them, according to what they stipulate, the beneficiary undertaking to carry what is delivered to him to such and such a land, as a lawful agency, preceded by his lawful acceptance, and he completes it" (Jawahir al-'Uqud of al-Suyuti, 1/167).

Agency for irrigation (musaqa) and sharecropping (muzara'a)

The jurists do not differ on the validity of agency for musaqa and muzara'a. Ibn Qudama (may Allah have mercy on him) says: agency is permitted for musaqa, and we know of no difference on this (al-Mughni, 5/52; Kashshaf al-Qina', 3/541; al-Sharh al-Kabir with Hashiyat al-Dasuqi, 5/52). Al-Nawawi (may Allah have mercy on him) says: agency is valid for both sides of the sale in all its types, such as salam or musaqa (Rawdat al-Talibin, 3/490, and the previous sources).

The Hanafis distinguish: agency for muzara'a comes either from the landowner or from the cultivator (muzari'). If the landowner appoints a man to give his land to another for muzara'a, that is permitted; the agent may give it to him, stipulating for the landowner any share of the produce, for by not specifying a fixed share, the principal delegated to him the determination of that share with the cultivator; whatever share is stipulated therefore complies with his order and fulfills his aim.

But the agent may not give it on terms where it would be known that he favored the taker beyond what people normally grant in like cases, for general agency is restricted to established custom. If he gives it with such favoritism, the produce is between the cultivator and the agent according to their stipulation, with nothing for the landowner: the agency is void in this case, the agent having become a usurper of the land by diverging from his principal; and the produce of usurped land given for muzara'a is between the usurper and the one to whom it was given, according to the stipulation.

The landowner may have the agent or the cultivator guarantee the diminution suffered by the land, according to Abu Yusuf's first view and Muhammad's view: if the cultivator guarantees, he turns against the agent, who caused the exposure to risk. According to Abu Yusuf's second view, only the cultivator guarantees, for he is the destroyer; the agent is a usurper, and real estate is not guaranteed by mere usurpation; then the cultivator turns against the agent for the loss suffered. If the agent favored the taker beyond what people normally grant in like cases, the produce is divided between the cultivator and the landowner according to the stipulation, and it is the agent who received the principal's share, for it is he who leased the land and whose contract gives rise to the landowner's share: he is therefore the one in charge of taking it, and the landowner may not take it except through an agency from the agent.

If the landowner orders the agent to give the land for muzara'a without specifying the year or anything else, the agent may give it for muzara'a for the first year; if he gives it for more, or after that year without having given it for that year, it is not permitted according to istihsan, but permitted according to qiyas, for the agency is unrestricted as to time: in whatever year or period he gives it, his act is not contrary to the principal's order, like the agent appointed to rent houses or slaves. It is nevertheless preferred to say: giving land for muzara'a customarily takes place in a specific season of the year, and a restriction established by custom in agency is like one established by text; the agency is therefore interpreted in its most specific sense, namely the sowing season of the first year, like the agent appointed to buy the sacrificial animal being restricted to the days of sacrifice of the first year.

As for agency coming from the cultivator, if he appoints another man to take for him this land for muzara'a this year, the seed being at the principal's charge, the agency is permitted. The rules of unrestricted agency described in the first case apply here too: the agent is bound by established custom among people in transactions just as he is bound by the law, and may not make any disposition harmful to the principal. This applies to an agency free of restrictions; if the principal, whether the landowner or the cultivator, restricts his agent by a specific condition, the agent must comply; if he diverges, the agency is void, unless the divergence serves the principal's interest: it is then valid in his regard, for it counts as implicit compliance. In contracts, meaning counts, not words and structures. If the landowner appoints a man to give his land for muzara'a at a third, and the agent gives it at half, he has indeed diverged from his principal, but the contract is valid, the divergence having been for the good and interest of the principal: he contracted at half instead of a third. That is why the agency is not annulled if the principal ratifies his agent's divergent act, subsequent ratification being like prior agency (al-Mabsut, 23/137-139; al-Fatawa al-Hindiyya, 5/266).

Agency for the pledge (rahn)

The jurists do not differ on the validity of agency for the pledge. Ibn Qudama (may Allah have mercy on him) says: agency is permitted for the pledge, and we know of no disagreement on this (al-Mughni, 5/52); for the agent here is a pure messenger, and the messenger conveys the words of another: whoever conveys the words of another is not bound by the ruling of those words, just as whoever reports another's slander is not a slanderer, and whoever reports another's disbelief is not a disbeliever (Mukhtasar al-Wiqaya, 2/171).

The formula for appointing an agent to give a pledge: "So-and-so appointed so-and-so to pledge what runs in his hand, his ownership and his power of disposal, namely such and such property, in guarantee of the lawful debt established in his liability toward so-and-so, according to a lawful written deed of such and such amount, dated such and such, and of the lawful debt that will be established in his liability toward so-and-so, as a lawful pledge, and to hand it over to the aforesaid pledgee by a lawful delivery." And the formula for taking a pledge for him from a third party on what lies in his liability: "to take for him from so-and-so, in guarantee of the lawful debt lying in his liability, a lawful pledge according to its lawful conditions, and to receive it for his aforesaid principal by a lawful receipt, as a lawful agency preceded by his lawful acceptance, and he completes it."

The formula of the agency given by the pledgor for selling the pledge when the debt falls due and paying the pledgee: the best, at the foot of the deed of debt after mentioning the pledge, is to write: "after the completion of the foregoing and its lawful binding character: the aforesaid pledgor appointed so-and-so for the sale of the pledge mentioned above, at its due date and after, at the price of the equivalent and what resembles it, to whoever might wish to buy it, for receiving the price and delivering the thing sold, or for the set-off with the buyer if he is the pledgee, of the price due upon the contract of sale against his equivalent of the debt specified above, and for the drafting and witnessing according to the customary form, as a lawful agency preceded by his lawful acceptance, and he completes it" (Jawahir al-'Uqud, 1/167).

Al-Sarakhsi (may Allah have mercy on him) says: if a man hands goods to a man saying "sell them or give them to me as a pledge," and he does so, it is valid according to Abu Hanifa (may Allah have mercy on him), whether the pledge equals the price or is less, in what people do not customarily overvalue; for the order to take as pledge is absolute, and it applies in its absoluteness as long as no evidence of restriction is established. According to Abu Yusuf and Muhammad, only a pledge equal to the price or less is permitted, in what people customarily accept, on the basis of their principle of restriction by custom. If he sells without giving as pledge, the sale is not valid, for the principal restricted the agency to what benefits him, namely taking the price as pledge, to secure his right and avert the harm of a windfall at the death of an insolvent buyer; if he sells without a pledge, the stated aim is not achieved and the disposition does not take effect, as if one said "sell it stipulating an option of three days."

If he says "sell it against a pledge of trust" and the agent gives a pledge less than the price, in what people do not customarily overvalue, it is valid; if it is less in what people overvalue, it is not valid, for he restricted the pledge here to trustworthiness, which means what suffices to discharge the debt; only the measure of what people overvalue is excepted, which cannot be guarded against and is therefore pardoned.

If the agent takes a trustworthy pledge and then returns it to its owner, the return is valid on his own behalf, for he is like the contractor for himself; the pledge aims at obtaining the price, and the right of taking belongs to the agent: even if he releases the buyer, it is valid; and if the pledgor returns it to him for some reason, that is also valid, but he becomes its guarantor. His divergence from Abu Yusuf (may Allah have mercy on him) is not mentioned here; it is said: according to his view, the return of the pledge is not valid on the basis of the stated principle; it is also said: it is not valid here because it nullifies nothing of the price, and it is a practice of merchants of which the agent is the owner.

If the agent places the pledge in the hands of an upright man ('adl), it is valid; the pledge placed with an 'adl or with the agent is equivalent in respect of the principal, whose privilege it is to keep the pledge when he cannot recover his debt elsewhere, and the order was not restricted to the agent's hand, so it is not so restricted. The principal may not take the pledge, for the acquirer consented only to taking by the 'adl or by the agent, and his consent counts in the acquisition; the same answer applies to a loan against a pledge in all the cases mentioned.

Al-Sarakhsi continues: if a hundred dirhams are handed to a man saying "take them to so-and-so and tell him: so-and-so lent you this sum on condition that you give him a pledge, he charged me with receiving it from you, bring it to me," and the man does so and takes the pledge, it is valid and the pledge counts as taken; the principal may take it from the agent, for he made him a messenger by ordering him to convey his message, and the message arrived: the messenger only conveys, no rights attaching to him; the principal may therefore take the pledge from the agent and demand the borrower for his debt. The pledge is perfected by the messenger's taking, he being the sender's deputy in taking from his deputy, and if it perishes in his hand it perishes from the principal's property. But if he is told "lend yourself and take a pledge," the principal may not take it from the agent, for by directly concluding the contract the agent is an agent and not a messenger: he attributed the contract to himself, the rights attach to it, and the borrower consented only to the pledge being in his hand to the exclusion of any other; if the pledge perishes in the agent's hand it perishes from the principal's property too, for the agent acted for him in what he did, and his taking is like the principal's.

If a garment worth ten dirhams is handed to him, appointing him to give it as pledge for ten, and he does so and takes the ten: if he said to the one who gave the money "so-and-so sent me to you with this pledge, for you to lend him ten dirhams and take this garment from him in dirhams," the dirhams belong to the principal, the agent being a trustee over them, for he presented the words in the form of a message, attributing them to the principal: the contract was concluded between the pledgee and the principal, so that the messenger cannot take back the garment, nor be pursued for the ten. If he said to the lender "lend me ten dirhams and take this garment from me as pledge," the ten belong to the agent, who attributed the contract to himself and is therefore neither messenger nor agent, agency for borrowing not being valid, for the borrower binds himself to repayment in his own liability; if he is told "sell something of yours on condition that its price come to me," that does not stand; likewise if told "bind yourself for ten in your liability on condition that the compensation come to me": agency for borrowing, measured upon agency, would be void; the ten belong to the agent, who may withhold them from the principal; if they perish, they perish from his property, without that being a divergence against the principal.

If he is told "borrow for me," the agency being invalid, his borrowing for himself or for another is the same in ruling: it is a restriction of no effect, and is therefore not taken into account.

If the owner of the garment says to him "tell so-and-so to lend me, and give him this garment as a pledge on my behalf by my message," and the agent attributes the contract to himself, he diverges and guarantees the garment, and the pledge is not permitted, for the owner of the garment made him here a messenger-agent, which constitutes authorization on his part to attribute the contract to himself (al-Mabsut, 19/77-79).

The Shafi'is say: agency is valid for the contract of pledge, its taking and its delivery (Rawdat al-Talibin, 3/490; al-Bayan, 6/396, and the previous sources). Ibn Hubayra (may Allah have mercy on him) reports their disagreement over one who appoints an agent to sell the pledge and then dismisses him: al-Shafi'i and Ahmad say he may; Abu Hanifa says it is not for him if the agency bore on the pledge itself, but if he appointed him for the sale after the pledge was completed, he may dismiss him; Malik says he may dismiss him absolutely (al-Ifsah, 1/419).

Agency for the deposit (wadi'a)

Agency for the deposit is permitted without disagreement among the jurists. Ibn Qudama (may Allah have mercy on him) says: agency is permitted for the deposit, and we know of no difference on this (al-Mughni, 5/52; al-InSaf, 6/356; al-Bayan, 6/397; Rawdat al-Talibin, 3/490; Bada'i' al-Sana'i', 6/23; al-Hidaya, 3/138; Mukhtasar al-Wiqaya, 2/171; al-Ikhtiyar, 2/191), for the same reason of the pure messenger who conveys the words of another without being bound by them.

The jurists differ, however, if someone is appointed to receive a deposit or to deposit his property without bringing witnesses, with details specific to each madhhab.

The Hanafis say: if a man says to another "so-and-so appointed me to receive from you what he is owed," three cases arise: the debtor confirms him, denies him, or stays silent. If he confirms him, he is compelled to pay him and cannot retract afterwards; if he denies him or stays silent, he is not compelled; but if he pays nonetheless and then wants to retract, that is not permitted to him. If the principal then comes and confirms the agency, the matter is settled; if he denies the agency, he recovers his debt from the payer, and the payer turns against the agent if he is solvent; if he consumed it, he guarantees its equivalent; if the money perished in his hand: if the debtor had confirmed him, there is no reversion; if he had confirmed him while stipulating the guarantee, or had denied him or stayed silent, the reversion takes place; and the principal having then turned against the payer, the latter cannot turn a second time against the agent.

The payer may have the principal swear that he did not appoint him; if he paid out of silence, he may not have the claimant swear, unless he returns to confirmation; if he paid while denying, he may not have the claimant swear, whether he returns to confirmation or not, but he turns against the agent; the agent may have the payer swear, in denial as in silence, that he does not know he was appointed: if he swears, the matter is settled; if he abstains, there is no guarantee on the agent. The agent may also refrain from making the payer swear and instead have the claimant swear that he did not appoint him: if he swears, the guarantee is established on the agent; if he abstains, the agent turns against the claimant.

All this holds when he claims to be an agent, and all this concerns the debt. As for the deposit: if the agent says to a man "you have with you a deposit whose recovery I was charged with," and the depositor confirms him then refuses to hand it back to him, that refusal is permitted, for his acknowledgment bears not on another's ownership (the deposit), whereas in the debt it is his own ownership. If the agent says "he did not appoint me, but pay me the debt: he will ratify my taking and I will guarantee its restitution," he owes neither to pay the debt nor to return the deposit; if he pays, he becomes guarantor and cannot turn against the recipient, even if the guarantee was stipulated. And if the debtor knows that the agent is not appointed for the taking yet pays nonetheless, the money is with him like a deposit: the payer may recover it before the absent one arrives; if it is lost in the recipient's hands after ratification, it is at the claimant's charge, he being deemed an agent on the day the money was taken (Majma' al-Damanat, 549; al-Fatawa al-Hindiyya, 3/623).

The Malikis: Qadi Abd al-Wahhab (may Allah have mercy on him) says: if someone is appointed to receive from a man a debt or a deposit, and the payer confirms the agent although the latter has no proof, the payer is not compelled to hand the thing to the agent, contrary to Abu Hanifa's view that he is compelled when the right lies in the liability and not otherwise. For the payer owes payment only of what discharges him: proof of this is that if a right lies upon him and its holder demands it, he may withhold it until the document is produced, whereupon the witnesses' testimony falls away; yet payment by mere acknowledgment does not discharge, as shown by the fact that if the creditor denies the agency, he would have to pay a second time. In other words: whoever is not discharged by payment made to him cannot be compelled to it, like a stranger; and because he testified to another's agency, that acknowledgment does not obligate him to hand over what is in his hand to the agent, since it is a corporeal thing.

Since he is not compelled to pay one who claims to be an agent without proof: if the creditor acknowledges him, the payer is discharged; if he denies the agency while acknowledging receipt of the right, the payer is discharged too, for the establishment of the agency is not a condition of discharge, just as if the payer sent the thing spontaneously through a messenger and the creditor acknowledged receipt, the payer would be discharged. If the creditor acknowledges the agency but denies that the payer handed the debt to the agent, no account is taken of the agent's words about the taking nor of his denial: the payer must produce proof of payment to the agent; failing that, he guarantees to the creditor, for he is the one who lost his property by paying one who is not discharged by payment made to him. Likewise, if the agency was established by proof and the payer paid the agent without proof while the creditor denies: the payer guarantees a second time, for the agent's acknowledgment of the taking is not accepted in respect of the principal, the agent being a trustee between himself and his principal, not between himself and others; the payer thus guarantees a second time, and the creditor may swear that he received nothing and knew nothing of the payment of the right to his agent. If the agent claims he handed the money to the creditor and produces proof thereof, the payer is discharged, no proof of payment to the agent being required, the testimony having already attested the creditor's receipt of his due; if he claims payment to the creditor without proof, it does not bind the creditor, as we established (al-Ma'una, 2/207-208).

Al-Shirazi (may Allah have mercy on him) says: if he was appointed to deposit and claims he deposited while the depositor denies, the agent's word is not accepted against him, for the depositor did not take him into his trust, so his word is not opposed to him, like the executor who claims he handed over the money to the orphan. Does the agent guarantee? It is examined: if he brought witnesses and the witnesses then died or became corrupt, he does not guarantee, having not been negligent; if he did not bring witnesses: if witnessing is deemed obligatory, he guarantees, having been negligent; if it is deemed not obligatory, he does not guarantee, having not been negligent.

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