Islamic Fiqh > Companies and leases > Wakala (agency mandate) > Claiming agency before the debtor
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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.
Chapter: claiming agency before the one owing the right. If a man owes a right to another and a man comes claiming to be the creditor's agent to collect it, and the debtor confirms him, he may pay him, without the payment being obligatory on him. Al-Muzani says the payment is obligatory, the acknowledgment of the right of taking implying an obligation; but this does not stand, for a non-discharging payment cannot be imposed, like the payment of a debt proven by testimony demanded without administering an oath. If the debtor pays, and the principal then arrives and denies the agency, his word with an oath prevails that he appointed no one, the principle being the absence of agency. If he swears: if the right is a corporeal thing, he takes it if it still exists, or turns against its value if it perished, and he may pursue both the payer and the taker, the payer having delivered to one whom the principal did not authorize and the taker having taken what he could not take; if the payer guarantees, he does not turn against the taker, and vice versa, each of the two maintaining that the owner's taking back is an injustice.
If the right is a debt, the principal may claim it from the payer, his right in his liability not having been transferred. May he pursue the taker? Two views: the first, that of Abu Ishaq, allows him to pursue him, for he acknowledges that the latter took his due, which reverts to him like a thing; the second, the view of the majority of our companions, forbids it, the debt remaining in the payer's liability without having crystallized in the taker's hand, so that he cannot claim it from him.
If a man comes to the debtor claiming to be the creditor's heir and the debtor confirms him, the payment is obligatory on him, for he acknowledged having no creditor other than him and that paying him discharges: it is therefore obligatory on him (al-Muhadhdhab, 1/356).
Ibn Qudama (may Allah have mercy on him) says: if he appoints him to deposit his property and he deposits without witnessing, our companions say he does not guarantee if the depositor denies; al-Khirqi's general words imply that his word is not accepted in respect of the principal, which is one of the two views of the Shafi'is, the deposit being established only by proof, like the debt. Our companions also say that the analogy with the debt does not stand, for the depositor's word is accepted regarding restitution and loss, so assurance has no use, unlike the debt.
If the agent says "I handed the money to the depositor" and the latter replies "you did not hand it over," the agent's word prevails, the disagreement bearing on his act, the very object of his agency.
Section: if a man has both a debt and a deposit, and a man comes claiming to be the agent of the creditor and of the depositor to collect both, producing proof thereof, the payment is obligatory on the debtor; without proof, it is not obligatory on him, whether he confirms or denies his being an agent: such is al-Shafi'i's view. Abu Hanifa says: if he confirms him, discharging the debt is obligatory on him; as for handing over the thing, two transmissions, the more famous being that it is not obligatory to hand it over, the argument being his attestation of the right of recovery, as if he attested that he is his heir. For us, this delivery is not discharging and is therefore not obligatory, as for a corporeal thing; and likewise if the debtor acknowledges that such a one is the minor's executor, which differs from acknowledging the heirship, the latter implying discharge through acknowledging that no one else has a right.
If the debtor denies the agency, he is not administered an oath; Abu Hanifa says he is. The root of the disagreement is the disagreement on the obligation to pay after confirmation: whoever makes payment obligatory after confirmation also imposes the oath in case of denial, as for other rights; whoever does not make it obligatory says the oath is not required in case of denial, for lack of use. If the debtor pays, with or without confirmation, and the principal comes and confirms the agent, the payer is discharged; if he denies, his word with an oath prevails. If he swears and the thing still exists with the agent, the principal takes it, and he may demand its return from whom he wishes, the payer having delivered to one not entitled and the agent having the principal's thing in his hand; if the payer demands it, he may demand it from the agent and take it from his hand to deliver it to its owner; if it perished or its return is impossible, the owner turns against its value against whichever of the two he chooses, the payer having guaranteed it by paying and the recipient having taken what he did not deserve to take; whichever of the two guarantees does not turn against the other, each maintaining that the owner's taking back is an injustice and acknowledging that his companion committed no aggression, so that one does not turn against him for another's injustice.
Unless the payer paid the agent without confirming his claim of agency: if he guarantees, he turns against the agent, the latter having been acknowledged neither in his agency nor established by proof; if the agent guarantees, there is no reversion against him, even after confirmation; and if the agent transgresses or is negligent, the guarantee is established upon him. If the payer guarantees, he turns against the agent: although acknowledging a valid taking, the guarantee was owed for his negligence and transgression; the payer will say "the owner wronged me by turning against me, and I have over the agent a right he acknowledges," which he recovers to obtain his right from him. If what was paid was a debt, the reversion takes place only against the payer alone, his right remaining in his liability, not discharged by delivery to one other than the creditor's agent; what the agent took is, in the creditor's view, the payer's property, the agent and the payer both maintaining that it became the creditor's property and that he wrongs the payer by taking it back from him; the payer therefore turns for what the agent took from him, as retribution for what the creditor took from him; and if it perished in the agent's hand there is no reversion against him in any respect, since he is acknowledged as a trustee without guarantee, unless it perished by transgression or negligence, in which case one turns against him (al-Mughni, 5/66-67).
Agency has already been established for sale, marriage and the rest of the contracts (Kashshaf al-Qina', 3/540). The jurists of the schools agree on the validity of agency for ju'ala. Ibn Qudama (may Allah have mercy on him) says: agency is permitted for ju'ala, and we know of no difference on this (al-Mughni, 5/52). 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 ju'ala (Bidayat al-Mujtahid, 2/226; see Tahrir al-Mukhtasar, 4/278). Ibn al-Hajib (may Allah have mercy on him) says: agency is representation in what does not require direct performance, so that it is permitted for surety, agency, hawala and ju'ala (al-Taj wa-l-Iklil, 4/195). The Shafi'is say that agency is valid for ju'ala (Rawdat al-Talibin, 3/490; al-Najm al-Wahhaj, 5/33).
The jurists of the four schools also agree on the validity of agency for the loan. Ibn Qudama (may Allah have mercy on him) says: agency is permitted for the loan, and we know of no difference on this (al-Mughni, 5/52; al-Bayan, 6/397; Rawdat al-Talibin, 3/490; al-Najm al-Wahhaj, 5/33), for the same reason of the pure messenger who conveys the words of another without being bound by them.
The Hanafis say: agency is permitted for lending and for borrowing, except that agency for borrowing is not valid and does not establish ownership of what is borrowed for the principal, for the borrower binds himself to repayment in his own liability; it would be as if one said "sell something of yours on condition that its price come to me," or like agency for begging: it is void, the loan being at the outset a favor and a charity that occurs for the borrower; representation in it is therefore invalid, it being a form of self-abasement in the sense of begging; what is borrowed is for the agent himself, who may withhold it from the principal, and if it perishes it perishes from his property.
Except if the matter proceeds by message: he says "so-and-so sent me to borrow from you such and such," and then ownership is established for the borrower meant, namely the sender; for the message was instituted to convey the sender's expression, the messenger being but an expresser, and the expression being the sender's property, whose disposal he ordered him to make in consideration of it: it is valid. Agency, on the other hand, was not instituted to convey the principal's expression, the expression belonging to the agent, to whom the rights of the contract revert. According to a transmission from Abu Yusuf (may Allah have mercy on him), agency for borrowing is permitted (Bada'i' al-Sana'i', 6/23; al-Hidaya, 3/138; al-'Inaya, 11/99-100; Tabyin al-Haqa'iq, 4/255-257; al-Ikhtiyar, 2/191; Mukhtasar al-Wiqaya, 2/171; Ibn Abidin, 5/167 and 7/276).
The jurists of the four schools agree on the validity of agency for paying the debts owed to the principal, for he may be unable to recover them himself and need to delegate to another, like the agent for sale, purchase and other dispositions; only the agency for receiving the capital of the salam or the price of exchange is permitted only in the sitting, the principal owning the taking only there. When the agent recovers the debt from the payer, the latter is discharged, a valid taking entailing discharge; and agency for paying the debt is valid, for he may pay himself but be prevented, so that he needs to delegate to another (Bada'i' al-Sana'i', 6/22-23).
Al-Sughdi al-Hanafi (may Allah have mercy on him) says that agency for paying and collecting debts is permitted, in three forms:
And if one says to the debtor "pay my debt to so-and-so, he is my agent," that is permitted, whether the agent was charged with the taking or the debtor with the payment (Fatawa al-Sughdi, 2/600).
The scholars supported this with what al-Bukhari reports in his Sahih, in the chapter on agency for paying debts: Sulayman ibn Harb reported to us, from Shu'ba, from Salama ibn Kuhayl, from Abu Salama ibn Abd al-Rahman, from Abu Hurayra (may Allah be pleased with him), that a man came to demand his due from the Prophet (PBUH) harshly, so that his companions meant to strike him; the Prophet said:
"Leave him, for the creditor has the right to speak." Then: "Give him a camel of his age." They said: "O Messenger of Allah, we find only a better one." He said: "Give it to him, for the best of you are the best in paying."Narrated by al-Bukhari (2183)
Ibn al-Munir (may Allah have mercy on him) explains the import of this chapter: one might imagine that, the payment of the debt being due immediately, agency would be forbidden therein as a delay granted by the principal to the agent; he established that it is permitted and is not counted as procrastination (Fath al-Bari, 4/483; Sharh Ibn Battal, 6/440).
Imam Muslim reports from Jabir (may Allah be pleased with him) that he said: "We were returning from Mecca to Medina with the Messenger of Allah (PBUH) when my camel stumbled"; and he relates the whole hadith with its story, in which it is said: he said to me: "Sell me this camel." I said: "No, it is yours." He said: "No, sell it to me." I said: "No, it is yours, O Messenger of Allah." He said: "No, sell it to me." I said: "I have an uqiyya of gold owed to a man, it is yours against it." He said: "I have taken it." Upon reaching Medina, the Messenger of Allah said to Bilal (may Allah be pleased with him): "Give him an uqiyya of gold and add." Bilal gave me an uqiyya of gold and added a qirat; I said: "May the Messenger of Allah's increase never leave me!" That gold was in a bag of mine, and the people of Syria took it on the day of al-Harra."
"Give him an uqiyya of gold and add." And Jabir said: "May the Messenger of Allah's increase never leave me!"Narrated by Muslim (715)
Imam al-Nawawi (may Allah have mercy on him) draws from it the permissibility of agency for paying debts and fulfilling rights, and the recommendation to add something when paying a debt and to tip the scale (Sharh Sahih Muslim, 11/33).
Agency is likewise valid for collecting the debts that others owe the principal, by appointing someone to pay a debt owed by the principal, given the generality of the need; the scholars supported it with what Abu Dawud and others report from Abu Nu'aym Wahb ibn Kaysan: Jabir ibn Abdallah (may Allah be pleased with him) said: "I intended to set out for Khaybar and the Messenger of Allah said to me: when you come to my agent at Khaybar, take from him fifteen wasq, and if he asks you for a sign, place your hand on his collarbone." The hadith is authentic, reported by Abu Dawud (3632) and al-Daruqutni (4304); the collarbone is the bone between the hollow of the neck and the shoulder, two bones on both sides.
Al-Jassas (may Allah have mercy on him) says: Hudhayfa's hadith indicates the permissibility of agency for paying and claiming a debt; the Prophet (PBUH) related that a man had done no good deed except that he said: "I used to order my servants to grant respite to the insolvent and to waive the solvent," and that Allah said: "Waive it against him."
When the principal orders the agent to pay a debt without bringing witnesses:
The jurists agree: whoever appoints another to pay a debt owed by the principal, saying "pay it without bringing witnesses," the agent does not guarantee if the creditor denies the payment, whether the principal is present or absent, for he has not been negligent. They also agree: whoever charged him with bringing witnesses, and the agent pays without witnessing while the payer denies, the agent guarantees.
They differ on the agent's guarantee when the principal ordered him to pay a debt without ordering witnessing, the agent pays without witnessing and the creditor denies the payment: the Hanafis, the Malikis according to the famous view, the Shafi'is and the Hanbalis according to the madhhab hold that the agent guarantees in this case, his word not being accepted by the creditor without proof, for he is not his trustee and is not believed in the payment, as the principal would be; the agent therefore guarantees to his principal what the creditor denied, for having been negligent in leaving out witnessing (al-Fatawa al-Hindiyya, 3/627; 'Aqd al-Jawahir al-Thamina, 2/692; al-Muhadhdhab, 1/363; al-Mughni, 5/65; Matalib Uli al-Nuha, 3/479; al-InSaf, 5/395; Kashshaf al-Qina', 3/565-566, and other sources).
The Malikis say: when the agent recovers the debt owed to his principal without witnessing the taking, or without witnesses establishing it, which includes the case where proof of the taking exists without having been sought, but simply by agreement, and the taker denies, the agent guarantees for his negligence in not witnessing; and sale is like the debt in this, as if he were appointed to sell without witnessing the buyer's taking, or a pledge, or a deposit, and the like; and this, whether the agent was delegated or not, whether custom favors witnessing, its absence or both, or there is no custom. According to a Maliki view, there is no guarantee in the absence of witnessing when custom is against witnessing. Some indicated that there is no disagreement on the lapse of the guarantee when custom is not to bring witnesses, the disagreement concerning only mixed custom or the absence of custom (al-Sharh al-Kabir with Hashiyat al-Dasuqi, 5/73-74; al-Taj wa-l-Iklil, 4/213; Sharh Mukhtasar Khalil, 6/80-81; Tahrir al-Mukhtasar, 4/294; Sharh al-Zurqani, 6/85).
There are situations in which the agent does not guarantee for leaving out the witnessing of payment:
If the agent says "I witnessed, then the witnesses died or were absent," or says to the principal "you authorized the payment" without proof, or says "I paid in your presence" and the principal denies, the principal's word with an oath prevails, the principle being the absence of it (Kashshaf al-Qina', 3/565-566).
Among the Hanafis, the absence of guarantee is restricted to the case where the agent swears to the witnessing: he is then cleared, having reported that he fulfilled the trust, and his word with an oath prevails (al-Mabsut, 19/71; al-Fatawa al-Hindiyya, 3/627). According to Imam Ahmad: the agent does not guarantee, whether witnessing was possible for him or not; it is also reported: he guarantees if witnessing was possible for him and he did not witness, otherwise not. Al-Mirdawi (may Allah have mercy on him) reports in "al-Furu'" that it is probable he guarantees if the principal denies it, otherwise not (al-InSaf, 5/396).
The jurists of the four schools agree on the validity of agency for the gift. Ibn Qudama (may Allah have mercy on him) says: agency is permitted for the gift, and we know of no difference on this (al-Mughni, 5/52), for the same reason of the pure messenger who conveys the words of another without being bound by them (Mukhtasar al-Wiqaya, 2/171; Bada'i' al-Sana'i', 6/23; al-Hidaya, 3/138; al-'Inaya, 11/99-100; Tabyin al-Haqa'iq, 4/255-257; al-Ikhtiyar, 2/191; Hashiyat al-Dasuqi with al-Sharh al-Kabir, 5/53-54; Kashshaf al-Qina', 3/541; Sharh Muntaha al-Iradat, 3/506). The Malikis say that agency is valid for the gift (Hashiyat al-Dasuqi, 5/53-54). The Shafi'is say: agency is valid for both sides of the sale in all its types, such as salam or gift, that is, it is valid for what has two sides, both together or one of them, and for what has only one side within that side (Rawdat al-Talibin, 3/490; al-Bayan, 6/396; Mughni al-Muhtaj, 3/197; al-Najm al-Wahhaj, 5/32; Hashiyat 'Umayra, 2/847).
The proof is what al-Bukhari reports in the chapter: "If a man appoints someone to give something without specifying how much to give, he gives according to the established custom of people": Maki ibn Ibrahim reported to us, from Ibn Jurayj, from Ata' ibn Abi Rabah and others, each of them completing the other without all of them conveying it in full, one single man among them having done so, from Jabir ibn Abdallah (may Allah be pleased with him) who said: I was traveling with the Prophet (PBUH) on a slow camel, at the rear of the caravan; the Prophet passed by me and said: "Who is this?" I said: "Jabir ibn Abdallah." He said: "What is the matter with you?" I said: "I am on a slow camel." He said: "Do you have a stick?" I said: "Yes." He said: "Give it to me," and I gave it to him; he prodded it and urged the camel on, and from that spot it became the fastest of the caravan. He said: "Sell it to me." I said: "It is yours, O Messenger of Allah." He said: "Sell it to me; I have taken it for four dinars, and its saddle is yours as far as Medina." Near Medina, I intended to set out, and he said: "Where are you going?" I said: "I have married a woman previously married." He said: "Why not a young girl, to play with you and you with her?" I said: "My father has died leaving daughters, and I wanted to marry a woman of experience to look after them." He said: "That is right." Upon reaching Medina, he said: "Bilal, pay him and add," and he gave him the four dinars, adding a qirat. Jabir said: "May the Messenger of Allah's (PBUH) increase never leave me!" and the qirat never left the bag of Jabir ibn Abdallah.
"Bilal, pay him and add." And the Prophet appointed Bilal to increase him, which is a gift.Narrated by al-Bukhari
The formula of agency for the gift: "So-and-so appointed so-and-so to give as a gift to so-and-so what stands in the ownership of the aforesaid principal, in his possession and under his hand, the whole being such and such, and to hand over to him the said gift, as a lawful agency preceded by his lawful acceptance, and he completes it" (Jawahir al-'Uqud, 1/168).
The Hanafis say: the donor may appoint someone for the delivery, for it is an act in which representation suffices and in which an error, should it occur, can be remedied; the agent's act stands in the place of the principal's. The donee may likewise appoint someone for the taking, charity being analogous to the gift in this: the delivery and the taking therein stand in the place of the offer and acceptance in sale and purchase, and agency is valid therein.
If the donor appoints for the delivery and the donee for the taking, both standing ready, then the donor's agent is prevented from delivering, and the donee's agent disputes him, producing proof that the owner of the thing appointed him to hand it to him, the proof is accepted and the agent is compelled to deliver, what is established by proof being like what is established by the adversary's acknowledgment; the purpose of this report is that he cannot withhold the thing, not that he be compelled to perform an act: the donee's agent may indeed take by the donor's order if no one prevents him, and this proof establishes that he has no right to prevent; once that is established, the donee's agent takes it himself.
If a claimant raises a claim in this matter, neither of the two agents is an adverse party in his suit, for each is a trustee of the thing, and the trustee is not an adverse party to one who claims a trust so long as the owner is absent. The donor's agent has no right of reversion on the gift, whether he was appointed for the delivery or for the contract of gift, for he is a messenger and an expresser: one cannot dispense with attributing the contract to the principal, and the gift is a favor on the side of the principal, not of the agent; the contract of gift concluded and the delivery made, the agency ends and the thing passes to another third party, with no right of reversion, the right of reversion in the gift being conditional upon the loss of what is its purpose, namely the compensation, which is the principal's purpose, not the agent's.
If the donor wishes to retract from the gift while it is in the hand of the donee's agent, he cannot, and the agent is not an adverse party against him, for the agent's hand is like the principal's, and the compensation is the purpose on the side of the principal, not of the agent: the taking is purely established, the agency ends with the taking, and one cannot dispense with attribution to the principal by saying "return to me what was given to so-and-so," not "what was given to me"; likewise the agent appointed to accept the gift cannot dispense with attributing the contract to the principal by saying "give so-and-so such and such"; were he to say "give it to me," the contract would be for the agent to the exclusion of the principal, unlike the agent for purchase saying "sell to me," for attribution to the principal there obligates a guarantee by oath in favor of the agent, whereas the contract of gift entails no guarantee of the price; that is why the contract is deemed sought for himself if it is not attributed to the principal.
If two men give a thing as a gift to a man and then appoint a man to deliver it to him, that is permitted; likewise if they appoint two men, or if each of them appoints one individually, each agent being deputy to his principal, the representation of one for a single person, as for two, being permitted; if one of the two delivers the thing, or takes it without delivery, it is permitted, their appointment for the delivery having given the donee the power to take.
If the donee appoints two men to take the gift and one of the two takes it, that is not permitted, for he trusted the trustworthiness of the two and not of one; the donee being able to take himself without delivery, it is the same if one of the two delivers. On this model, if the delivery agent appoints another, it is permitted; if the donee's agent appoints another to take, it is not permitted, unless the principal said "whatever you do is permitted," in which case he may appoint another for that, having authorized his mandate in generality, the agency deriving from his mandate.
If a man appoints a man to give the garment to so-and-so against a compensation he will take from him, and the agent does so, the compensation being less than the value of the gift, it is valid according to Abu Hanifa (may Allah have mercy on him), on the basis of his principle of the generality of the term, the name of compensation covering the little and the much; and it is not valid according to Abu Yusuf and Muhammad, unless the compensation equals the given property or is less than it in what people accept, on the basis of their principle of restricting the general term by custom.
If the donee appoints someone to compensate without naming the compensation, and the agent pays from the donee's property, that is not permitted, for what he was ordered to pay is unknown through persistent ignorance, the agent being unable to achieve the principal's aim; the agency is therefore void, as in "sell a part of my property and replace it with something else"; unless he is told "compensate him from my property as you wish," in which case he compensates as he wishes, the principal having delegated his judgment in generality.
If he is told "compensate for me from your property, I guarantee it to him," and he compensates, it is valid and the principal turns for the equivalent if the property has one, otherwise for its value; for with the stipulation of guarantee the agent becomes a borrower from him, the compensation belonging to his own property, and what is borrowed is guaranteed by the equivalent if the property is quotable, otherwise by the value. If he is ordered to compensate from his own property without stipulating the guarantee and he compensates, there is no reversion against the principal.
The donor may appoint someone for the reversion on the gift, for he may claim it himself, and the judge orders it upon his request; the same holds at his agent's request. If the principal appoints two men for that, neither of the two may act alone to the exclusion of his companion, for they are both agents for the taking: the reversion on the gift is accomplished only by establishing the hand upon the donee, and we have shown that two agents for the taking cannot act alone.
If the principal appoints a man to recover for him a debt from so-and-so and then give it as a gift to so-and-so, it is valid: he appointed him for two things, the taking of the debt and then the contract of gift upon the amount taken; agency for each being valid alone, so it is for both; and appointing him to give as a gift a debt he will recover from the debtor is like appointing him to give as a gift a thing he will deliver, both being valid, the attribution being made to his own ownership.
Likewise if the debtor is ordered to pay to the donee and he pays, it is valid, the order to pay giving the beneficiary the power to take. If the payer says "I have paid" and the donee confirms him, it is valid; if he denies, the payer is not believed, his claim of having paid the donee being like his claim of having paid the donor: if the donee confirms him, the payment is established; otherwise not, the debt being guaranteed in the liability and not discharged by mere words.
If the principal appoints someone to recover a debt and the agent hands it to the donee, the payer saying "I paid to the agent" and the agent "I paid to the donee," the payer and the agent are both discharged, the agent being confirmed for having chosen to fulfill the trust; but he is not confirmed in respect of the donee, the trustee's word being accepted only for his own discharge from guarantee: claiming that something reached another does not establish, by his word, the donee's receipt of the gift, so that the donor cannot retract upon him (al-Mabsut, 19/91-94).
They also say: agency for the gift implies agency for delivering the given thing, the gift not being perfected without the taking; that is why the agent for the gift, after offering the gift, may deliver the given thing after the offer and the acceptance; and the principal cannot say "I appointed him only for the gift, not for delivering the given thing."
The division of the taking: the commentary establishes that the taking must be complete, and it is of two kinds. The first is complete taking: each given thing is taken in the form suited to its taking, as the taking of the keys which counts as taking of the house. The second is incomplete taking, such as the taking of an undivided share in property part of which was given and which is divisible; incomplete taking does not suffice to perfect the gift: whoever gives a share of divisible property must have the given share separated, divided, delivered and taken by the donee; if the given share is delivered together with the non-given share without separation, and the donee takes it, the gift is not perfected. If the given property is not divisible, the gift is perfected by consequential taking, that is, the taking obtained implicitly through taking the whole of the property.
Complete taking is of two types: the first is real taking, such as the donee taking the given property with his hand, or carrying it off and going with it; the second is juridical taking (hukmiyya), by the way of clearing the place (takhliya), of which the example is someone giving another property present and available in the sitting of the gift, and the donee saying to the donor "I have taken it," without actually having taken the property. Taking by takhliya requires the given property to be present in the sitting of the gift as described; if someone gives property while giving the power to take it whenever it is found, the gift is corrupt according to Imam Abu Yusuf (may Allah have mercy on him) and valid according to Imam Zufar. The gift is valid through taking of the second type according to Imam Muhammad, the preferred view, whereas according to Imam Abu Yusuf the gift is not perfected; but this disagreement concerns only a valid gift, for a corrupt gift they agree that takhliya is not a taking (Durrar al-Hukkam, 2/352).
The jurists do not differ on the validity of agency for sulh, which resembles sale in needing agency. Ibn Qudama (may Allah have mercy on him) says: agency is permitted for sulh, and we know of no disagreement on this (al-Mughni, 5/52; al-Sharh al-Kabir, 5/205; Bidayat al-Mujtahid, 2/226; al-Sharh al-Kabir with Hashiyat al-Dasuqi, 5/52; Rawdat al-Talibin, 3/490; al-Bayan, 6/396; Mughni al-Muhtaj, 3/197; al-Najm al-Wahhaj, 5/32; Hashiyat 'Umayra, 2/847). Ibn Razin (may Allah have mercy on him) says it is valid by consensus (al-Furu', 4/276; al-InSaf, 5/356; one Hanbali view renders it invalid), for the agent is a pure messenger who conveys the words of another, and whoever conveys the words of another is not bound by the ruling of those words (Mukhtasar al-Wiqaya, 2/171; Bada'i' al-Sana'i', 6/23; al-Mabsut, 19/148; al-Ikhtiyar, 2/191).
The Hanafis say: the agent for sulh is not an agent in the litigation, for sulh is a contract built on agreement and peace, the opposite of litigation. See that the agent in litigation cannot conclude the sulh, and that even his acknowledgment of the nullity of the claim does not bind his principal, the validity of the litigation agent's acknowledgment resting on his being agent for answering the adversary, whereas the agent for sulh is not an agent for answering: he is an agent for a contract he performs directly, and acknowledgment is in no way part of that contract (al-Mabsut, 19/143-144).
The jurists of the four schools do not differ on the validity of agency for ibra'. Ibn Qudama (may Allah have mercy on him) says: agency is permitted for ibra', for it resembles sale in needing agency, and its same ruling applies, with no known difference (al-Mughni, 5/52; Kashshaf al-Qina', 3/540; Bada'i' al-Sana'i', 6/23; al-Sharh al-Kabir, 5/53; Tahrir al-Mukhtasar, 4/279; al-Taj wa-l-Iklil, 4/195; Mawahib al-Jalil, 7/133; Sharh Mukhtasar Khalil, 6/69; Hashiyat al-Sawi on al-Sharh al-Saghir, 8/63). The Shafi'is say: it is permitted to appoint an agent for the waiver of debts, for if agency is permitted to establish them and recover them, it is permitted to grant their waiver (al-Muhadhdhab, 1/349).
The jurists differ, however, over the one released by the waiver: must he be known or not? The question hinges on two points: is ibra' a dropping of a right or a transfer of ownership, or mostly one of the two? And is the waiver of an unknown debt valid or not? Whoever views ibra' as a transfer of ownership requires knowledge, for one cannot transfer an unknown thing; whoever views it as a dropping holds its validity, for the gift of an unknown thing is valid.
The majority of jurists, namely the Hanafis, the Malikis and the Hanbalis according to the sound view of the madhhab, hold valid the release of an unknown debt.
The Malikis say: it is permitted to appoint someone to release one who owes him a right, in money or otherwise, whether the principal, the agent and the debtor know or do not know the object of the waiver; for agency for ibra' does not require that the principal know the amount of the debt released, nor the agent, nor the debtor: it is a gift of the unknown, permitted with us, a mere dropping in which gharar poses no problem; as the Mudawwana says: if you have dirhams against him and you have forgotten their amount, you may conclude a settlement on whatever you wish (al-Sharh al-Kabir, 5/53; Tahrir al-Mukhtasar, 4/279; al-Taj wa-l-Iklil, 4/195; Mawahib al-Jalil, 7/133; Sharh Mukhtasar Khalil, 6/69; Hashiyat al-Sawi, 8/63).
The Hanbalis say: agency for ibra' is valid, even if the debt released is unknown to the creditor and the debtor, or to one of them, whether they are ignorant of its amount, its description, or both; the waiver of the unknown is valid even if knowledge of it is impossible, according to the sound view of the madhhab, for it is a dropping of a right which takes effect with knowledge and without, like manumission and divorce. The waiver of the unknown is therefore valid in all unknown rights; but if the creditor knows the debt and the debtor conceals it from him for fear that, knowing it, he would not release him, the waiver is not valid, for it deceives the one releasing while he could guard against it. The apparent meaning of Abu al-Khattab's words is validity without restriction, and he says: "This is the closest view."
From Ahmad, one transmission holds the waiver valid when the released one is ignorant of the debt without the releaser knowing it; from him also: it is not valid even if both are ignorant, unless knowledge of it is impossible. In "al-Muharrar": the waiver is valid in every circumstance, except if the released one knows the debt while the releaser believes him ignorant: then it is not valid. It is also reported from him that the release of the unknown is not valid, like the release from a defect, a view mentioned by Abu al-Khattab and Abu al-Wafa', when the released one conceals the debt for fear that the releaser, knowing it, would not release.
Among the forms of release of the unknown: if two debts are owed to him by one person and he releases one of them without designating it, or two debts by two persons and he releases one of them without designating it, it is owed, that is, it turns back against the releaser, and it is specified by designation, like his divorcing one of them or freeing one of them, then by drawing lots, according to the madhhab. If he releases from a hundred dirhams while believing he owes nothing, though a hundred are owed by him, the validity of the ibra' has two aspects (al-Furu', 4/144; al-InSaf, 7/128-129; Kashshaf al-Qina', 4/367-368; al-Rawd al-Murbi', 2/182; Sharh Muntaha al-Iradat, 4/400; Matalib Uli al-Nuha, 4/393).
Ibn Qudama (may Allah have mercy on him) says: the release of the unknown is valid when the two parties have no way of knowing it. Abu Hanifa says it is valid without restriction. Al-Shafi'i says it is not, unless the person, intending it, says "I release you from a dirham to a thousand," for ignorance is forbidden only because of gharar; if one accepts the whole, the gharar disappears and the release is valid.
For the Hanbalis, the Prophet (PBUH) said to two men disputing before him over erased inheritances: "Divide, aim at the truth, then draw lots, then part," a hadith reported by Abu Dawud (3584); Ibn Abd al-Barr says in al-Tamhid (22/222) that from it derives the permissibility of release of the unknown, amicable settlement upon it and its being given as a gift. Moreover, ibra' being a dropping, it is valid upon the unknown like divorce, as in "from a dirham to a thousand"; and need calls for discharging liability, with no way to know what it contains: were validity conditioned upon knowledge, this would close the door of a Muslim's forgiveness of his brother and of discharging his liability, which is not permitted, like the prohibition of manumission.
If, however, the debtor knows the debt and the creditor conceals it for fear that, knowing it, he would not accept the waiver, the waiver should not be valid, for it deceives the acquirer while one could guard against it. Our companions say: if one releases from a hundred dirhams while believing one owes nothing, though a hundred are owed, the validity has two aspects: one, it is valid, for falling upon the debtor's ownership, which it abolishes as if it were known; the other, it is not, for one released from what one believed one did not owe, which is not a true release; and the root of both aspects is the sale of property bequeathed by a deceased, which the seller believes still exists with the testator although the latter has died and ownership has passed to him: is it valid? Two aspects, and al-Shafi'i has two views in sale; the validity of ibra' thus has two aspects (al-Mughni, 5/385; al-Kafi, 2/94; al-Sharh al-Kabir, 6/256; Ibn Abidin, 6/249).
As for the Shafi'is, Imam al-Nawawi (may Allah have mercy on him) says: in agency for ibra', the principal's knowledge is required if we hold the apparent view that the waiver of the unknown is not valid, as previously stated in the book of guarantee; the agent's knowledge is not required according to the sounder view, with which Qadi Husayn and al-Ghazali decided; in al-Muhadhdhab and al-Tanhid, his knowledge of the genus and the amount is required, as in "sell" at the price at which so-and-so sold his horse: for the validity of the sale, the agent's knowledge is required, not the principal's. The debtor's knowledge is not required according to the sound view, the disagreement resting on the nature of ibra', a dropping or a transfer: if a transfer, his knowledge is required like that of the donee, otherwise not.
As for the formula: "I release so-and-so from my debt" releases from all of it; "from something of my debt" releases from the least of it, that is, the minimum to which the name of the thing applies, as explicitly explained in al-Tatimma, which is clear; "from what I wish" releases from what he wishes, leaving something. And if one says "I release him from all of it" and he releases only from part of it, it is valid, unlike selling part of what one was appointed to sell, and Allah knows best (Rawdat al-Talibin, 3/495).
The jurists of the four schools agree on the validity of agency for the waqf. Ibn Qudama (may Allah have mercy on him) says: agency is permitted for the waqf, and we know of no disagreement on this (al-Mughni, 5/52), and Ibn Razin says: by consensus (al-InSaf, 5/356). The proof is what al-Bukhari reports under the title: "Chapter on agency for the waqf and its expenditure, feeding a friend and eating charitably": Qutayba ibn Sa'id reported to us, from Sufyan, from 'Amr, who said concerning 'Umar's charity: "The custodian commits no wrong in eating and letting a friend eat, without amassing wealth; Ibn 'Umar managed 'Umar's charity and made gifts to Meccans with whom he stayed" (Sahih al-Bukhari, 2/813). Ibn Battal (may Allah have mercy on him) draws from it that this is the sunna of the waqf: that the custodian eat of it and let others eat (Sharh Sahih al-Bukhari, 6/451).
The jurists of the schools likewise do not differ on the validity of agency for charity and the payment of zakat. Ibn Qudama (may Allah have mercy on him) says: agency is permitted for charity, and we know of no difference on this (al-Mughni, 5/52; al-Furu', 2/419). Ibn Rushd (may Allah have mercy on him) says: agency is permitted for financial acts of worship, such as charity and zakat (Bidayat al-Mujtahid, 2/226, and numerous sources). The Shafi'is say: as for zakat and all the expiations, agency for their payment, from the principal's property or the appointed one's, is permitted (al-Bayan, 6/396).
The jurists supported the permissibility of agency for charity and the payment of zakat with what Abu Dawud and others report from Abu Rafi': the Messenger of Allah (PBUH) had borrowed a young she-camel (bakr); camels of the charity arrived; he ordered me to settle the man's she-camel with him; I found among the camels only a superb four-year-old she-camel; the Prophet (PBUH) said: "Give it to him, for the best of men are the best in paying" (authentic hadith, reported by Abu Dawud, 3346). And from Abu Nu'aym Wahb ibn Kaysan, who said: I heard Jabir ibn Abdallah say: "I intended to set out for Khaybar and the Messenger of Allah said to me: when you come to my agent at Khaybar, take from him fifteen wasq, and if he asks you for a sign, place your hand on his collarbone" (authentic hadith, reported by Abu Dawud, 3632, and al-Daruqutni, 4304).
In this hadith lies the proof of the validity of agency: the imam may appoint and establish an agent over the charity to receive it and hand it to its rightful recipients, and to the one he sends with a sign (Nil al-Awtar, 6/4). The two Sahihs report that the Prophet (PBUH) sent collectors to take the zakat: Abu Humayd al-Sa'idi (may Allah be pleased with him) said: "The Messenger of Allah appointed a man of the tribe of al-Asd over the charities of Banu Sulaym, called Ibn al-Lutbiyya; upon his return, he had him render accounts" (reported by al-Bukhari, 1429, and Muslim, 1832); Muslim reports from Abu Hurayra (may Allah be pleased with him): "The Messenger of Allah sent 'Umar over the charity" (Muslim, 983).
The Shafi'is say: agency for receiving the zakat and taking possession of it is valid; the rightful categories may appoint someone to receive it on their behalf, and the owner to hand it over to them (Mughni al-Muhtaj, 3/198; al-Najm al-Wahhaj, 5/33).
The formula of agency for distributing the zakat of hidden and visible property: "So-and-so appointed so-and-so to distribute the zakat of his hidden property, gold and silver; if he is a Shafi'i, he lists for him the categories of rightful recipients according to the Shafi'i madhhab; otherwise he distributes it among the eight categories, or those present, as indicated by the other schools. Likewise for the zakat of breaking the fast (zakat al-fitr) and the zakat of visible property, livestock and grains: he specifies for him the heads of livestock and the wasq of grains and fruits, as a lawful agency, establishing him in that in his own place, accepting his word and his deed, and handing over to him the amount due from his property, which he receives from him by a lawful taking, so that he may distribute it as appointed, acting in all of that in the taqwa of Allah, His obedience, His fear and vigilance in secret as in public; it is accepted from him by a lawful acceptance and he completes it." The agent's word prevails for the distribution of these zakats to their rightful recipients (Jawahir al-'Uqud, 1/166).
The Hanbalis say: agency for paying the zakat is valid, but the agent must be trustworthy and, according to the sound view of the madhhab, a Muslim. According to one view, the dhimmi's agency for the payment of zakat is permitted, for he is a carrier (munawwil), just as appointing a dhimmi to slaughter the sacrificial animal is permitted, according to the two transmissions, and the same is said for shepherding; the dhimmi's agency for paying the zakat is permitted if the principal intends it, his intention sufficing, otherwise not. Al-Mirdawi says: this view is strong (al-InSaf, 3/198; Matalib Uli al-Nuha, 2/124).
The Shafi'is and the Hanbalis affirm that one may say to the agent: "Pay the zakat of my property, which is such, from your property": for it is a loan upon the agent's property, and an agency for paying it (Kashshaf al-Qina', 3/543).
Ibn Hajar al-Haytami (may Allah have mercy on him) was asked: is it permitted to appoint an agent to pay the zakat from the agent's property, or from a debt owed to the principal? He replied: the two shaykhs explicitly permitted agency for paying one's zakat from the agent's property, with the recovery of what was paid, as mentioned for agency to pay a debt; if it was sold for the amount of the zakat or for the whole nisab, the sale is not valid in the first case, nor, in the second, for the amount of the zakat. If the thing sold perishes and the seller authorizes the buyer to pay out the amount of the zakat, it is valid and set-off applies; if he is told "claim it against my debt to you," it does not discharge, apparently, the one authorizing, for one cannot be the taker of what lies in one's own liability, nor the receiver for the owner on behalf of the rightful recipients (al-Fatawa al-Fiqhiyya al-Kubra, 3/78).
May the agent take from the zakat money if he is poor? The Hanbalis say: if he is authorized to give as charity part of his dirhams or other property, it is not permitted to the agent to take from it for himself as charity, if he is among the rightful recipients of charity, nor anything for his work, according to the sound view of the madhhab, for the principal's general term refers to handing over to others; it is possible that it be permitted if an indication shows he meant him to take from it.
May he give of it to his father, his son or his wife? Two aspects: the first is permissibility, their inclusion in the generality of the term; likewise if he was bequeathed to distribute a third upon people among whom he is, or if he was handed property ordered to be distributed to whom he wishes, or paid to whom he wishes (al-InSaf, 5/357; Kashshaf al-Qina', 3/540).
Ibn Qudama (may Allah have mercy on him) says: if he appoints him to give charity to the poor while he is poor, or he was bequeathed to distribute a third upon people among whom he is, or he was handed property ordered to be distributed to whom he wishes, or paid to whom he wishes, the explicit text from Ahmad is that he may not take anything from it; Ahmad said: if he has in his hand the money of the poor and of charitable causes while he is in need, let him eat nothing of it, he only orders its execution, the principal's general term referring to handing over to others.
It is possible that taking be permitted to him if the generality of the term encompasses him, as in the preceding questions, the meaning of entitlement being realized in him and the term covering him: he takes like the others. It is also possible that it be referred to the indications of the circumstances: what predominantly shows the intention to generalize permits him to take, what predominantly shows the opposite forbids him; and if the two are equal, there are two aspects.
May he give it to his son, his father or his wife? Two aspects: the first is permissibility, their inclusion in the generality of the term and the presence of the meaning permitting payment to them; as for those whose maintenance is obligatory upon him besides these, payment to them is permitted, as is the payment of voluntary charity to them (al-Mughni, 5/70).