Islamic Fiqh > Companies and leases > Wakala (agency mandate) > Delegation in marriage
Contents
Updated on 25 September 2026 at 6:57 PM
This part belongs to the full section: All sections of this part.
This fourth and final part of the chapter on the pillars of delegation (wakala) covers delegation in the most sensitive contracts of fiqh: marriage, divorce, khul' and taking the wife back, then in litigation and its conditions according to the Malikis, in acknowledgment (iqrar), in permissible property, in hajj and umra, in leading prayer, in prayer and in fasting, before closing with oaths, vows, division between wives and acts of disobedience. Each question is presented with the exact positions of the four schools, their scriptural proofs from the Quran and the Sunna, their figures and their classical references cited in parentheses.
Al-'Imrani, a Shafi'i, may Allah have mercy on him, first cites a limiting case: if someone is delegated to distribute a third of a fortune to the poor and the needy, he is not allowed to divert any of it to himself, even if he is poor; for he is addressed by a command that charges him with commanding others, and he therefore does not enter into the scope of the command addressed to another, as in delegation to an unrestricted sale in which he may not sell on his own account (al-Bayan, 6/420).
The jurists of the schools agree on the validity of the mandate in the marriage contract. The proof is the following report.
"The Messenger of Allah (peace and blessings of Allah be upon him) sent Amr ibn Umayya al-Damri to al-Najashi to ask for Umm Habiba bint Abi Sufyan in marriage on his behalf; she had previously been married to Ubaydullah ibn Jahsh. He married her to him, and al-Najashi paid her, from his own wealth, a dower of four hundred dinars on behalf of the Messenger of Allah (peace and blessings of Allah be upon him)."Reported by al-Hakim in al-Mustadrak (6771)
Its chain contains Muhammad ibn Umar al-Waqidi, abandoned, but the report has a supporting witness: a mursal version judged hasan; Ibn Ishaq reported it in his Sira (373) and al-Bayhaqi in al-Kubra (13574), from Muhammad ibn Ishaq: Abu Ja'far informed me that the Messenger of Allah (peace and blessings of Allah be upon him) sent..., and then he cited the report.
"The Messenger of Allah (peace and blessings of Allah be upon him) sent Abu Rafi' and a man of the Ansar, and the two married Maymuna bint al-Harith, while the Messenger of Allah (peace and blessings of Allah be upon him) was in Medina, before his departure."Reported by Malik in the Muwatta (771)
Its apparent meaning suggests an unconnected report (mursal), but Imam Ahmad and others transmitted it with a continuous chain.
"The Messenger of Allah (peace and blessings of Allah be upon him) married Maymuna lawfully, consummated the marriage with her lawfully, and I was the messenger between the two."Reported by Ahmad in his Musnad (27241), al-Darimi (182), al-Tirmidhi (841) and Ibn Hibban in his Sahih (4130, 4135)
This is the report of Abu Rafi', client of the Messenger of Allah (peace and blessings of Allah be upon him), via Sulayman ibn Yasar. Abu Umar (Ibn Abd al-Barr), may Allah have mercy on him, deduces: in Malik's version, this hadith is a proof of the lawfulness of delegation in marriage, and it is a matter in which I know of no disagreement (al-Tamhid, 3/152). Ibn Hubayra, may Allah have mercy on him, writes: they agreed that delegation is among the contracts permissible in general, and that every right for which deputization is valid admits delegation, such as sale, marriage and divorce, among others (al-Ifsah, 1/452).
Indeed, need calls for it: one may need to marry from a distant place to which travel is impossible, and the Prophet (peace and blessings of Allah be upon him) married Maymuna while she was in the land of Abyssinia; and because marriage is a contract aimed at exchange, delegation is valid in it as in sales (al-Mabsut, 19/117; Bada'i' al-Sana'i', 6/23; al-Jawhara al-Nira, 3/476; Bidayat al-Mujtahid, 2/10; al-Sharh al-Kabir with Hashiyat al-Dasuqi, 5/52-53; al-Ma'una, 2/206; al-Taj wa-l-Iklil, 4/195; Sharh Mukhtasar Khalil, 6/69; Tahbir, 4278; Hashiyat al-Sawi on al-Sharh al-Saghir, 8/63; al-Umm, 5/16; al-Muhadhdhab, 1/348; al-Mughni, 5/52; Sharh Muntaha al-Iradat, 3/506; Kashshaf al-Qina', 3/540; al-Insaf, 8/82; Hashiyat Ibn al-Qayyim on Sunan Abi Dawud, 5/207).
Al-Kasani, may Allah have mercy on him, explains: marriage is concluded by these formulas directly just as it is concluded by them through representation, by delegation or by message; for the act of the agent is equivalent to that of the principal, and the word of the envoy to that of the sender. The origin of the lawfulness of delegation in marriage is the report that al-Najashi married Umm Habiba (may Allah be pleased with her) to the Messenger of Allah (peace and blessings of Allah be upon him): either he did so at his command, and he is then his agent; or without his command, and the Prophet (peace and blessings of Allah be upon him) ratified the contract, a subsequent ratification being equivalent to a prior delegation (Bada'i' al-Sana'i', 2/231).
The Shafi'is say: delegation is valid for both parties of the marriage (Rawdat al-Talibin, 3/490; al-Bayan, 6/397; Mughni al-Muhtaj, 3/197; al-Najm al-Wahhaj, 5/32). The formula of the mandate given to a man to accept, on behalf of the legal guardian of a woman, her marriage contract runs as follows: "So-and-so delegated so-and-so to accept the marriage contract of so-and-so, an adult virgin, or of the woman or the previously married virgin, from her guardian so-and-so, her father, or her paternal grandfather, or another in the order of guardians in marriage, for a dower of such an amount, immediate or deferred, as a valid delegation conforming to the Law; the latter received from him his acceptance by a legal acceptance, and the deed is dated" (Jawahir al-'Uqud, 1/164).
The Hanbalis specify: he may delegate someone to accept marriage on his behalf, but the validity of the agent's contract requires that the principal be named within the contract: the guardian says "I have married your principal so-and-so" or "I have married so-and-so", attributing him to so-and-so, and the agent says "I accept this marriage for so-and-so son of so-and-so" or "for my principal so-and-so". If he says "I accept this marriage" intending to have accepted it for his principal without mentioning him in the contract, the marriage is not valid (Kashshaf al-Qina', 3/542).
Al-Mawardi, may Allah have mercy on him, sets out: once the lawfulness of delegation in marriage is established, the guardian and the husband may be represented, but not the wife, for she has no right over the conduct of the contract, and delegation is therefore not valid on her part. The guardian's delegation involves two clauses: the delegation of the guardian and that of the husband. As for the guardian, he may delegate only one who could validly exercise guardianship: a male of age, free, Muslim, sane and of sound judgment; the combination of these six qualities validates his delegation just as it validates his guardianship, and if any one of them is lacking, so that he delegates a woman, a minor, an insane person, a slave, an unbeliever or a spendthrift, it is not permitted and the delegation is void: if he concludes by it, the contract is corrupt.
Once these qualities are complete in the agent, the delegated guardian enters into the role of the guardian in only one of two ways: either he is among those who are compelled in marriage, like the father and the grandfather with the virgin; or among those who are not, like the other guardians with the previously married woman, or any guardian other than the father and the grandfather with the virgin as with the previously married woman.
If the guardian is among those who are compelled, like the father and the grandfather with the virgin, he may delegate with or without her consent, just as he may marry her with or without her consent. Two views differ as to whether he must designate the husband to his agent or leave the choice to him: according to the first, he may leave him the choice, for he has established him as his own substitute through the delegation, with no requirement of designation, as in delegation over property; he must then choose for her a husband of equivalent standing (kuf'), and it is better, if he wishes to marry her to the one he has chosen, to ask her consent, her silence counting as consent as with the father; if he marries her without asking her, the marriage is valid, as when the father marries without consent. On this view, if the guardian designates the husband to his agent, the agent's choice lapses and he may not marry her to anyone other than the one designated, as with the agent in a purchase once what he is to buy has been designated.
According to the second view, the guardian must designate to his agent, within the delegation contract, the husband to whom he marries her, without leaving the choice to him; for the guardian's attachment to dishonor passes to his agent, and the agent's choice therefore does not stand in place of his own, unlike delegation over property, in which attachment to dishonor is not taken into account. Accordingly, whether the agent marries her to a compatible husband or to an incompatible one, the marriage is void for corruption of the delegation. If he is designated to marry her to one of two men, the matter is examined: if the guardian had chosen them and had left to the agent the task of concluding with one of the two, it is valid; if there was no choice on the guardian's part, but he left it to the choice and option of his agent, the rule becomes the absence of option for the guardian.
If the guardian is not among those who are compelled, does his mandate require her consent or not? Our colleagues (the Hanafis) differed on it in two ways. The first, the choice of Abu Ali ibn Abi Hurayra: his delegation is valid only with her consent, for he is her deputy, like the agent who may not delegate what he was delegated except with the permission of his principal; in that case, if the guardian delegates without her consent and the agent marries her with or without her consent, the marriage is void for corruption of the delegation; and if the guardian asks her consent after the delegation contract, it becomes valid only once he has obtained her consent to his delegation; once he delegates him after her consent, the agent being agent for both together, if she retracts his delegation, the delegation lapses and he may no longer marry her.
The other way, the choice of Abu Ishaq al-Marwazi: the delegation is valid even if the guardian does not ask her consent to its conclusion, for he is delegated in virtue of a right of his own person fixed by the Law, not by deputization: he resembles the father and differs from the delegated agent. The delegation is thus valid without his consulting her, and he is the agent of the guardian alone; her refusal does not affect it; but the agent may marry her only with her consent, as the guardian could not: if he marries her without her consent, the marriage is void, whether the husband is compatible or not; and even if he marries her, with her consent, to an incompatible man, the marriage is void, whether the guardian ratifies it or not.
As for the delegation of the husband: to marry a specific woman, he may delegate anyone who can validly accept marriage in his own person, that is, one who combines three conditions: to be a male of age and sane, free or slave, of sound judgment or a spendthrift; for the slave may be delegated with the one who dissolves a bond, and likewise in a marriage, a khul' or a divorce, since dissolution designates termination in general.
It is therefore permitted for a man to delegate one who will divorce his wife on his behalf, even if she is menstruating, for the prohibition in that case has an incidental cause (al-Sharh al-Kabir with Hashiyat al-Dasuqi, 5/52-53; al-Ma'una, 2/206; al-Taj wa-l-Iklil, 4/195; Sharh Mukhtasar Khalil, 6/69; Tahbir, 4278; Hashiyat al-Sawi, 8/63). The Shafi'is say: delegation is valid in dissolutions (fusukh), for if it is valid in contracts, it is a fortiori valid in their dissolution; this applies to deferred dissolutions, such as the deposit (wadi'a), the waqf, the bequest, the ju'ala, the guarantee (daman), the partnership, and dissolution by the option of the session or by a stipulated condition. As for immediate dissolution, it is examined: if an excuse exists that exempts the person from being deemed deficient for delegating, then so it is; otherwise delegation is not valid in it, due to the deficiency (Rawdat al-Talibin, 3/490; Mughni al-Muhtaj, 3/197-198; Nihayat al-Muhtaj, 5/27; al-Najm al-Wahhaj, 5/33; al-Dibaj, 2/306; Kanz al-Raghibin, 2/847).
The Hanbalis say: delegation is valid for every human right, contractual or of dissolution, such as sale or divorce, for what admits delegation in its conclusion admits it in its dissolution even more evidently (Sharh Muntaha al-Iradat, 3/506; Kashshaf al-Qina', 3/540; Matalib Uli al-Nuha, 3/737).
The jurists of the four schools agree on the validity of delegation in divorce: the husband says "I have delegated you to divorce my wife", for need calls for it, as it calls for delegation in sale and marriage; and since delegation is valid in marriage despite the severity of its ruling, its lawfulness in divorce is even more evident.
A note in the text records the disagreement of Ibn Hazm, may Allah have mercy on him: in al-Muhalla (10/196) he judges delegation not permitted in divorce, starting from the word of Allah:
"...and that no soul earns except against itself"
Surah al-An'am, 164
No one therefore acts for another where the Quran or the authentic Sunna has not authorized it, and no text establishes that anyone divorces on behalf of another by his mandate. He adds: divorce, zihar, li'an and ila' are words, and all agree that no one may perform zihar, li'an or ila' on behalf of another, whether by delegation or otherwise; why did they not reason by analogy about divorce? They follow neither the texts nor analogy. Wherever Allah the Most High mentions divorce, He addresses the husbands: no one may substitute for them, for that would be transgressing the limits of Allah:
"And whoever transgresses the limits of Allah, those are the wrongdoers"
Surah al-Baqara, 229
"It is not for a believing man or a believing woman, when Allah and His Messenger have decided a matter, to have any choice in their affair"
Surah al-Ahzab, 36
He concludes that he knows of no permission of delegation in divorce from any of the predecessors, except Ibrahim and al-Hasan. Ibn Hubayra writes for his part: they agreed that every right for which deputization is valid admits delegation: sale, purchase, hire, the payment of a debt, conducting a lawsuit in the claiming of rights, marriage and divorce, among others (al-Ifsah, 1/452; Bidayat al-Mujtahid, 2/226; Bada'i' al-Sana'i', 6/23; al-Jawhara al-Nira, 3/476; Bidayat al-Mujtahid, 2/10; al-Sharh al-Kabir with Hashiyat al-Dasuqi, 5/52-53; al-Ma'una, 2/206; al-Taj wa-l-Iklil, 4/195; Sharh Mukhtasar Khalil, 6/69; Tahbir, 4278; Hashiyat al-Sawi, 8/63; al-Muhadhdhab, 1/348; al-Bayan, 6/397; Rawdat al-Talibin, 3/490; Mughni al-Muhtaj, 3/197-198; Nihayat al-Muhtaj, 5/27; al-Najm al-Wahhaj, 5/33; al-Dibaj, 2/306; Kanz al-Raghibin, 2/847; al-Mughni, 5/52; Sharh Muntaha al-Iradat, 3/506; Kashshaf al-Qina', 3/540).
The formula of delegation aimed at having the wife divorced in return for compensation, whether her dower or an amount owed by her, runs: "So-and-so delegated so-and-so to ask his wife so-and-so to be divorced by one first revocable divorce, or by a second divorce following the first, after consummation of the marriage with the said wife and acknowledgment by the said principal, at the time of the delegation, of this, in return for the equivalent of the amount of her dower owed to him, which is such and such, or for such and such an amount owed by her; as a legal delegation, the latter accepted it from him by a legal acceptance, and he completes the deed" (Jawahir al-'Uqud, 1/168).
"Abu Amr ibn Hafs divorced her irrevocably while he was absent; he sent his agent to her with barley, she disliked it, and he said: by Allah, you have nothing to claim from us. She came to the Messenger of Allah (peace and blessings of Allah be upon him) and mentioned that to him, and he said: you have no maintenance from him."Reported by Muslim (1480)
Al-Mawardi, may Allah have mercy on him, draws from it: delegation in divorce is permitted, for Fatima bint Qays was divorced by her husband's agent in the presence of the Messenger of Allah (peace and blessings of Allah be upon him), who ratified it; and since delegation is valid in marriage despite the severity of its ruling, its lawfulness in divorce is even more evident.
If the man delegates a sane man, it is valid, whether he is free or slave, Muslim or unbeliever; it is not permitted to delegate an insane person or a minor, for their word has no legal standing. As for delegating a woman, two sound views were set out in connection with khul'. Delegation is then of two types.
The first type is absolute delegation: he says "I have delegated you to divorce my wife so-and-so"; the agent may then divorce her immediately or later, unlike the case in which the power of divorce is transferred to him (tamlik): the former is representation, the latter a transfer of ownership. If the principal fixes him a number not to be exceeded: if he says to him "divorce her three times" and he says to her "you are divorced three times", she is divorced three times; if he says to her "you are divorced" intending three divorces, two views clash: the first, she is divorced three times, for the intention of the three takes the place of uttering the three; the second, she is not divorced three times, for the husband is bound in divorce and his act is operated according to his intention, whereas the agent is not bound in it, so that his act is not operated according to his intention. The same applies if the agent divorces her by allusion (kinaya) with intention.
If he was delegated to divorce her three times and divorces her only once, there are two views on whether it takes effect: according to the first, it does, for it is part of what he was delegated; according to the second, it does not, for he was delegated for an irrevocable divorce and this divorce is revocable, so that it is no longer what he was delegated for. If he was delegated for a single divorce, the three do not take effect. If he was delegated to divorce one of his wives without her being designated, there are two views: according to the first, the one he divorces is validly divorced, for an unspecified divorce can take effect, and the delegation in it is therefore valid; according to the second, he may divorce one before the husband designates her, and if he divorces one before designation she is not divorced: the unspecificity is tolerated on the husband's side, whose choice of designation remains pending, but not on the agent's side, whose choice is not pending.
The second type is restricted delegation: one delegates him to divorce her subject to a condition, ordering him to divorce her on a Thursday: he may divorce her only on that day, otherwise she is not divorced; or to divorce her for the Sunna: if he divorces her for an innovation, she is not divorced; or for an innovation: if he divorces her for the Sunna, she is not divorced. If he says to him "divorce her if you wish", his divorce does not take effect until he says "I wish it"; and the effect of the divorce does not depend on his wish, for divorce may occur with or without a wish, and the wish is known only through speech. Promptness is not required of his wish, unlike the wife's: making the divorce subject to the agent's wish is a condition, without required promptness, whereas making it subject to the wife's wish is a transfer of ownership in which promptness is required; he may indeed divorce her immediately or later, and his wish may therefore accompany a later divorce. But the validity of his wish requires that he inform the husband before divorcing: if he informs someone else and then divorces, it does not take effect, for if his informing is a condition, the husband's being informed is so even more. If he says to him "divorce her if she wishes", the wife's wish is taken into account when the agent presents the divorce to her: he may divorce her only after presenting the divorce to her and asking her wish; if she expresses it at once, the divorce takes effect; and when the agent effects it after her, whether immediately or later, if her wish is delayed, the divorce does not take effect afterward, for corruption of the condition.
The agent in divorce has no right to delegate another in the matter. If the principal delegates two agents to divorce the same wife, authorizing each to divorce her three times, the one of the two who first divorces her three times voids the other's delegation; if each is authorized to divorce her once and one of them first divorces her once, the other's delegation is not voided and he may divorce her a second time: the difference between the two cases is as has been said. Likewise, if a single man is delegated to divorce her three times and the husband precedes the agent by divorcing her three times, the delegation lapses; if the husband divorces her once, the delegation remains for the two remaining divorces; and if the agent divorces her three times, only two divorces take effect, namely the two remaining of the husband after the one he effected. If he was delegated for a single divorce and the husband then divorces her once, the delegation is not voided so long as the waiting period has not ended: if the agent divorces her once during the waiting period, she is divorced, whether the husband takes her back or not. If her waiting period following the husband's divorce ends and he remarries her, there are two views on the survival of the delegation and the validity of the agent's divorce: according to the first, the delegation remains and the divorce takes effect; according to the second, it has expired and the divorce does not take effect; these two views derive from his two opinions on the contract of divorce within a marriage: may it take effect for someone other than himself or not.
If the husband revokes the delegation, becomes insane or dies, the agent may not divorce: if he divorces, nothing takes effect. If he is unaware of his principal's insanity or death and divorces, his divorce does not take effect, for divorce cannot validly occur on behalf of a dead or insane husband. If he is unaware of the revocation until he divorces, there are two views on whether it takes effect, in line with his two opinions on the principal in retaliation who executes the punishment before knowing of the pardon (al-Hawi al-Kabir, 10/178, 180).
The Hanafis say: if the husband delegates a man to divorce his wife for the Sunna while she is menstruating, the delegation having taken place during menstruation or in a purity in which he consummated the marriage, and the agent divorces her during menstruation or in that purity, the divorce does not take effect; for it is not a delegation for the present state, but a delegation deferred to purity in the first case, and to menstruation and then purity in the second. Likewise if, in that state, he says to her "you are divorced for the Sunna", "you are divorced when you become pure", or "you are divorced when you menstruate and then become pure": the divorce does not take effect; but when she becomes pure in the first case, or menstruates and then becomes pure in the second, and the agent divorces her afterward, the divorce takes effect: he has then become agent, the effect having occurred by virtue of the delegation, and it is valid.
If the husband delegates another to divorce his wife and then divorces her himself before the agent's divorce, this does not remove the latter: the agent's divorce takes effect upon her so long as she is in her waiting period; once the period has ended, it no longer takes effect, whether he has remarried her or not.
A man delegates an absent and uninformed agent: the latter divorces before learning of the delegation, and his divorce does not take effect, for he becomes agent only with knowledge. In al-Muntaqa, from Abu Yusuf: he becomes agent even before knowledge; Abu Yusuf, may Allah have mercy on him, adds: I do not recall that from Abu Hanifa. If he says to another "divorce my wife three times" and he replies "I have done it", it is valid; if he says to two men "divorce my wife three times" and one divorces her once and the other twice, she is divorced three times.
If he says to another "divorce my wife if she wishes", he is not deemed an agent so long as she has not wished; the wish belongs to her in the session in which he comes to know of it: when she consents to it in that same session, he becomes agent, and if the agent divorces her in that session, the divorce takes effect; if he leaves the session, the delegation lapses and his subsequent divorce does not take effect. Shams al-A'imma al-Halwani, may Allah have mercy on him, said: this must be memorized, so widespread has the confusion become; most divorce letters a husband writes from a village read: "O you to whom I have sent this letter, ask my wife whether she wishes the divorce; if she wishes it, divorce her"; and the agents often delay the effect beyond the session of her wish, not knowing that the divorce does not take effect.
If he says to another "you are my agent in her divorce, on condition that I have the option, or that she has it, or that so-and-so has it", the delegation is valid and the option is void. If he says "divorce one of my wives" and the latter divorces the very one intended, it is valid, and the husband may not redirect the divorce to another; likewise if he divorces one of them without designation: it is valid, and the option belongs to the husband. The expression "one of" applies indeed to an unspecified one as well as to a specified one: it is perfectly correct to say "this one is one of my wives"; now the delegation was made in absolute form, without restricting "one" to specificity or unspecificity, and the question is as if it said: "divorce one of my wives, if you wish the one specified, or without specification"; even if that were expressly stipulated, the answer would be what we have said (al-Muhit al-Burhani, 3/496-497).
The Shaykh of Islam Ibn Taymiyya, may Allah have mercy on him, was asked about a man between whom and his wife words had passed, and who, about to travel, said to his agent: if she accepts the usual maintenance, hand it to her; otherwise, hand her her letter of divorce. The agent, once the principal had departed, handed her the letter and divorced her with a revocable divorce, informing the principal that he had thus divorced her; when the latter learned of what had grieved him, he testified against himself that he had taken her back and set out in search of her; the agent, hearing that he had taken back his wife, claimed to have divorced her three times. May the man take back his wife after the agent's statement?
He answered: handing over the letter is an allusion to divorce; if the principal declares that he thereby meant divorce, or that it is established by the indications, it is for him to divorce her once, and the agent may not divorce her three times without the principal's permission; and when the principal declares to the agent that he did not mean thereby three divorces, his word is accepted and the agent may not divorce her three times. If the agent divorced her once and the husband takes her back, the taking back is valid (Majmu' al-Fatawa, 33/120-121).
The jurists of the four schools agree on the validity of delegation in khul' (dissolution of the marriage at the wife's initiative in return for compensation), first by virtue of the word of Allah the Most High:
"Then send an arbiter from his family and an arbiter from her family"
Surah an-Nisa, 35
The two arbiters may indeed effect the khul', which establishes the validity of delegation in this matter. Moreover, the contract of khul' combines divorce and sale, and since delegation is valid in each of the two, it is valid in what combines them; and since the marriage contract is more solemn than its dissolution by khul', delegation, valid in marriage, is valid in khul' a fortiori. The woman may therefore delegate to the exclusion of her husband, and the husband to the exclusion of his wife, for the wife in khul' is like the buyer in a sale and the husband like the seller; and in a sale, the buyer may delegate to the exclusion of the seller just as the seller to the exclusion of the buyer (al-Hawi al-Kabir, 10/89).
Ibn Qudama, may Allah have mercy on him, writes: delegation in khul' is valid in the name of each of the two spouses, as well as of one of them alone, and anyone able to effect khul' for himself may be delegated and may delegate: free or slave, male or female, Muslim or unbeliever, interdicted or of sound judgment; for since each of them may effect the khul', each may be represented in it, like the free man of sound judgment. Such is the madhhab of al-Shafi'i and the people of reasoned opinion, and I know of no disagreement in it.
Delegation is valid with a prior assessment of the compensation as well as without assessment, for it is a contract of exchange, as in sale and marriage. Assessment is preferable: it is safer from uncertainty and easier for the agent, who has no need of interpretive effort. If the husband delegates, only two situations can occur: the agent assesses the compensation and effects the khul' for that amount or more: it is valid, and the named amount binds, for he did what he was commanded. If he effects the khul' for less, there are two views: according to the first, the khul' is not valid, and such is the choice of Ibn Hamid and the madhhab of al-Shafi'i, for he contradicted his principal and his act is therefore not valid, as if he were delegated for the khul' of one wife and effected that of another; he was not authorized for this khul' with this compensation, so it is not valid on his part, like a stranger. According to the second, it is valid, and the agent is liable for the shortfall: such is the view of Abu Bakr, for a difference in the amount of the compensation does not void the khul', as in absolute delegation; and the first view is more correct (al-Mughni, 7/272; al-Kafi, 3/156; Bada'i' al-Sana'i', 6/23; al-Jawhara al-Nira, 3/476; Bidayat al-Mujtahid, 2/226; al-Sharh al-Kabir with Hashiyat al-Dasuqi, 5/52-53; al-Taj wa-l-Iklil, 4/195; Hashiyat al-Sawi, 8/63; al-Muhadhdhab, 1/348; al-Bayan, 6/397; Rawdat al-Talibin, 3/490; Mughni al-Muhtaj, 3/197-198; Nihayat al-Muhtaj, 5/27; al-Najm al-Wahhaj, 5/33; al-Dibaj, 2/306; Kanz al-Raghibin, 2/847).
Delegation in litigation (rights). The jurists agree in general on the validity of delegation in litigation for every right, when the principal is present and his opponent consents: the principal may indeed act himself, so he may charge another with it. The disagreement concerns delegation in court, that is, in the claiming and establishing of rights and the conducting of a lawsuit, with the principal absent and the opponent not consenting: is it permitted or not?
Imam Abu Hanifa, may Allah have mercy on him, judges delegation in litigation over rights valid on condition of the opponent's consent, unless the principal is ill with a sickness preventing his attendance, absent for the duration of a journey, intending to travel, or a veiled woman (mukhadhira); and this whether the agent belongs to the claimant or the defendant: in these cases delegation is valid without the opponent's consent. Delegation is indeed a hawala, which is valid only with the consent of the one transferred upon; litigation varies and the answer is owed from him, so that he becomes the analogue of the hawala: yet only the most contentious and most obstinate in denial delegates, which causes him great harm, and it therefore does not bind him without obligation, like the hawala, unless there is an excuse among those cited; in that case the answer is not owed from him and no right owed is sacrificed. His statement "I intend to travel" is not accepted: the judge examines his state and his equipment, for the appearance of a traveler does not go unnoticed.
Al-Zayla'i, may Allah have mercy on him, reports: our later colleagues chose for the fatwa that if the judge knows of the opponent's obstinacy in refusing delegation, he does not enable him in that and accepts the delegation from the principal without his consent; if he knows of the principal that he intends to harm his opponent, he accepts his delegation only with that consent: such is the choice of Shams al-A'imma al-Sarakhsi. Among the excuses are the menses of the female defendant when judgment takes place in the mosque, and imprisonment, when it comes from a judge other than the one before whom the parties litigate (Tabyin al-Haqa'iq, 4/255; al-Mabsut, 19/3-4; Mukhtasar al-Wiqaya, 2/170; al-Ikhtiyar, 2/189-190; Hashiyat Ibn Abidin, 7/278).
The opponent's presence is a right of the claimant, by what is owed to him of being held to the litigation and barred from other occupations; his refusal to attend in case of delegation forfeits the claimant's right of presence. The answer to the claim is owed by the defendant, and it is sometimes admission and sometimes denial: the agent stands in his place in the denial but not in the admission, so that his right in one of the two kinds of answer cannot become binding through delegation, any more than what is owed to him of the oath, in which the agent does not represent him. Moreover, the agent is a branch of his principal, as testimony about testimony is a branch of the original witnesses: just as the judge does not hear the witnesses of the branch except after the impossibility of the original witnesses, he may not be satisfied with the agent except after the impossibility of the principal; and the agent is the substitute of his principal, like the executor or the guardian of the orphan: just as guardianship is established by the ward's incapacity, delegation is validated by the principal's incapacity (al-'Inaya, 11/74; al-Hawi al-Kabir, 6/503).
As for the veiled woman, she may delegate without the opponent's consent, for she is not accustomed to the speech of men: when she attends the session of judgment, she withdraws into herself and does not state her argument out of modesty, which may cause her to lose her right; the later jurists approved of this and likened her to the sick woman. If, on the contrary, her custom is to attend gatherings of men, she is like the man: delegation is permitted to her only with the opponent's consent.
Abu Hanifa therefore admits delegation in litigation without the opponent's consent only in three situations:
The opponent is bound to answer the agent only in these three situations. Such is litigation; but delegation to collect a debt, to sue and to judge without the opponent's consent is valid by consensus (al-Jawhara al-Nira, 3/469-470).
The majority of the jurists, namely the Malikis, the Shafi'is, the Hanbalis, as well as Abu Yusuf and Muhammad among the Hanafis (in general, subject to conditions detailed later), judge delegation in litigation valid: whether the principal is present or absent, healthy or ill, excused or not excused; whether it is a financial right or a corporal punishment; and whether the opponent consents or not. For it is a right that admits representation, and its holder may therefore delegate without his opponent's consent, as in case of absence or illness, or for the payment of a debt owed: every delegation valid with the opponent's consent is valid also without his consent, like the delegation of the absent person or of the woman.
The proofs: 'Ali, may Allah be pleased with him, delegated 'Aqil in the presence of Umar, may Allah be pleased with him, to plead on his behalf, saying: "This is 'Aqil, my brother: what is judged in his favor is for me, and what is judged against him is upon me." And Abdallah ibn Ja'far was delegated in the presence of Uthman, who said: "Litigation has deadly depths, and Satan attends it; I hate to attend it." Abu Ziyad explains: the quham are deadly perils. These reports spread on the strength of their presumptive fame, without their denial having been transmitted: it is therefore a consensus on the validity of the delegation of the present person (reported by Ibn Abi Shayba in al-Musannaf, 7/299, no. 23638, and al-Bayhaqi in al-Kubra, 6/81, no. 11220).
It is reported that the Prophet (peace and blessings of Allah be upon him) heard the claim of Huwayyisa and Muhayyisa against the Jews of Khaybar, accused of having killed Abdallah ibn Sahl on behalf of Abd al-Rahman ibn Sahl, whose guardian was present: he did not reject their claim on his behalf despite his presence. Had the delegation of the present person not been permitted, he would have rejected it until the guardian himself initiated it. See how he rebuked Muhayyisa for speaking first, before Huwayyisa, saying to him "say the takbir, say the takbir": yet precedence to the elder is not an obligation, only an etiquette; how then would he have refrained from rejecting what is obligatory?
Moreover, anyone whose delegation is valid in case of absence or illness has valid delegation in case of presence and good health, like delegation in contracts and the collection of debts; and anyone whose delegation in contracts is valid in case of absence has it valid in case of presence, like the sick man and the traveler: it is a condition of validity that varies neither with the contractor's illness nor his health, his presence nor his absence, like the other contracts. He may furthermore act himself without his opponent's consent, and may therefore delegate in it without that consent, as for his other rights. The purpose of delegation is finally to help the weak or to preserve the dignity of the honored, and this exists in the non-excused as in the excused: one may have a right to claim or an accusation to face without knowing how to plead, or without wishing to handle it oneself; the principal may be unable to argue despite his presence, and some disdain lawsuits because of their high rank. 'Ali, may Allah be pleased with him, said: "Whoever goes to excess in litigation commits a sin, and whoever falls short in it is defeated" (al-Dhakhira, 8/8; al-Ishraf, 3/76-77, no. 934; al-Ma'una, 2/205; Bidayat al-Mujtahid, 2/226; Munhat al-Jalil, 6/359-360; al-Mabsut, 19/3-4; al-Bahr al-Ra'iq, 7/43; al-Umm, 7/120; al-Hawi al-Kabir, 6/502, 504; al-Muhadhdhab, 1/348; al-Sharh al-Kabir of al-Rafi'i, 5/206; al-Bayan, 6/397, 399; Rawdat al-Talibin, 3/492; Mughni al-Muhtaj, 3/198-199; al-Najm al-Wahhaj, 5/34; Kanz al-Raghibin, 2/848-849; al-Mughni, 5/53; al-Kafi, 2/239; Sharh al-Zarkashi, 2/149).
The majority further rely on the chapter that al-Bukhari entitles "the delegation of the witness and the absent one is permitted", in which he reports that Abdallah ibn Amr wrote to his steward, in his absence, to pay the zakat for his family, young and old.
"A man had a yearling she-camel (sinn) due from the Prophet (peace and blessings of Allah be upon him); he came to claim it, and he said: give it to him. They looked for a yearling of his but found none except one a year older; he said: give it to him. The man said: you have paid me in full, may Allah pay you in full. The Prophet (peace and blessings of Allah be upon him) said: the best of you is the best in the payment of debts."Reported by al-Bukhari (2/809, hadith no. 2182)
Ibn Battal, may Allah have mercy on him, says: this hadith is a proof against Abu Hanifa's view that the delegation of a present person, sound of body, in the land, is not valid without his opponent's consent or an excuse of illness or a three-day journey; yet the Prophet (peace and blessings of Allah be upon him) commanded his companions to settle the creditor's due, which is a delegation on his part, while he was neither absent nor ill nor traveling. Most jurists admit the delegation of a present person in good health despite the opponent's disagreement, as this hadith indicates: such is the view of Ibn Abi Layla, Malik, Abu Yusuf, Muhammad and al-Shafi'i; Malik specifies that it is valid even without the opponent's consent, provided the agent is not his enemy, whereas the others say it is valid even if he is his enemy.
Al-Tahawi, may Allah have mercy on him, adds: the companions agreed on this lawfulness. It is indeed reported that 'Ali ibn Abi Talib delegated 'Aqil in the presence of Abu Bakr, then, once 'Aqil was captured, delegated Abdallah ibn Ja'far, who litigated against Talha concerning the small measure (sa') that 'Ali had introduced under Uthman, and Uthman confirmed it: this was therefore a consensus. The Prophet (peace and blessings of Allah be upon him) also said to Abd al-Rahman ibn Sahl al-Ansari, when he claimed before him the blood of his brother Abdallah ibn Sahl, found killed at Khaybar in the presence of his two uncles Huwayyisa and Muhayyisa: "say the takbir, say the takbir", that is, let the elder speak; Huwayyisa and then Muhayyisa spoke, whereas the heir was Abdallah ibn Sahl below them: the two were therefore agents. As for delegating an absent agent to claim a right, it requires the agent's acceptance according to the jurists, and a delegation that requires the agent's acceptance treats the absent and the present alike. If it is objected: where is the acceptance in the hadith of Abu Hurayra? The answer is that their carrying out of the Prophet's (peace and blessings of Allah be upon him) command to settle the creditor constitutes their acceptance of his command (Sharh Sahih al-Bukhari by Ibn Battal, 6/439-440).
Al-Kasani, may Allah have mercy on him, writes: there is no disagreement on the validity of delegation in litigation for the establishment of a debt, a property or any other right with the opponent's consent, so that the answer to the delegation binds the opponent. Its origin is what is reported from Abdallah ibn Ja'far (may Allah be pleased with him): our master 'Ali (may Allah be pleased with him) did not attend lawsuits and used to say that they have flesh (luham) frequented by devils; he charged 'Aqil with them, then, grown old, he transferred them to me; and 'Ali used to say: "What is judged for my agent is for me, and what is judged against him is upon me."
It is well known that 'Ali (may Allah be pleased with him) was such that no one would refuse his delegation: his delegation was thus consented to by the opponent, which establishes validity with consent, while validity without consent was a matter of disagreement. Abu Hanifa: not valid without an excuse of illness or travel; Abu Yusuf and Muhammad: valid in all circumstances, like al-Shafi'i. Al-Jassas mentions that in the apparent meaning of the riwaya there is no difference between the man and the woman, the virgin and the previously married woman; but the later ones among our colleagues approved the delegation of the veiled woman lacking discernment, an approval that has its place; Ibn Abi Layla, for his part, validates only the delegation of the virgin, which is not tenable in view of what precedes.
The basis of their view: delegation in litigation reaches the principal's right and does not depend on the opponent's consent, like delegation for collecting a debt; the proof is that the claim is the claimant's right and the denial the defendant's: delegation reaches the personal right of the claimant as of the defendant and therefore does not depend on the opponent's consent, as if each pleaded in person.
Abu Hanifa, may Allah have mercy on him, replies for his part that the right is the true claim and the true denial; yet the claimant's claim is a report susceptible of truth, falsehood, forgetfulness or error, as is the defendant's denial, and opposing it to the claim does not increase its likelihood: none of that is therefore right, and the principle is that no answer is imposed on him. But the Law imposed it out of the necessity of deciding lawsuits, ending quarrels that lead to corruption and reviving extinguished rights, and the right of necessity becomes settled by the agent's answer: litigation therefore binds by the agent's answer only out of necessity. Now people, in matters of litigation, are unequal: some are more litigious than others, and the agent may be more skillful in his argumentation, to the point that the one who pleads against him fails to revive his right and suffers harm; the opponent's consent is therefore required, so that the obligation of harm is not added to his obligation. If the principal is ill or a traveler, he is incapable of claiming and answering himself: without the power to be represented, rights would be lost, which is not permitted. The same applies to the veiled woman kept at home, virgin or previously married, who blushes at attending gatherings of men and answering after the litigation, to the point that her right is lost; but in our question there is no necessity (Bada'i' al-Sana'i', 6/22; al-Hidaya, 3/136).
The Malikis lay down four conditions for delegation in litigation:
The agent in the lawsuit may withdraw after attending three sessions only for an excuse, after swearing that he withdrew only for that excuse; likewise the principal may not remove the agent: before the three sessions, the agent may withdraw of his own accord and the principal remove his agent; and the opponent may appoint him, unless he has become the enemy of the first principal, in which case it is not valid.
If the agent has pleaded a case that has concluded and wishes to enter another, that is valid, provided the delegation be non-designated and the interruption of the lawsuit between the two cases not long; if it reaches six months, it is no longer valid. If the litigation is continuous without interruption, the agent may speak for his principal, however long it lasts (al-Sharh al-Kabir with Hashiyat al-Dasuqi, 3/54-55; Tahbir, 4/279-280; al-Taj wa-l-Iklil, 4/195-196; Mawahib al-Jalil, 7/133-134; Sharh Mukhtasar Khalil, 6/69-70; Hashiyat al-Sawi, 8/69).
The jurists have moreover forbidden and barred delegating for another when the principal claims falsehood knowing that he is doing wrong. The proof is what Imam Abu Dawud reports in his Sunan, in the chapter "he who assists a lawsuit without knowing its affair":
"Whoever sees his intercession prevent one of Allah's legal punishments (hudud) has opposed Allah; whoever litigates falsehood knowing it remains in Allah's wrath until he desists; and whoever says of a believer what is not in him, Allah will settle him in the pus of Hell until he abandons what he said."Reported by Abu Dawud (3597)
"And whoever assists a lawsuit through injustice has incurred Allah's wrath."Reported by Abu Dawud (3598), from Nafi', from Ibn Umar
Ibn Farhun, may Allah have mercy on him, says in al-Tabsira: delegation is not valid for the accused who claims falsehood, and it is not permitted to plead in his favor. Ibn al-'Arabi, may Allah have mercy on him, writes in Ahkam al-Qur'an, concerning the word of the Most High:
"...and do not be a defender for the treacherous"
Surah an-Nisa, 105
Representation of the accused falsifier in a lawsuit is indeed not permitted, in the light of the word of Allah to the Messenger of Allah (peace and blessings of Allah be upon him):
"...and ask forgiveness of Allah; indeed Allah is Forgiving and Merciful"
Surah an-Nisa, 106
Al-Hattab, may Allah have mercy on him, reports in al-Mutaytiyya that the agent in a lawsuit must safeguard his religion and undertake only a claim in which his conviction accepts that his principal is in the right; according to Jami' al-Sunan, Abdallah ibn Umar reports from the Prophet (peace and blessings of Allah be upon him): "Whoever sees his intercession prevent one of Allah's hudud has opposed Allah in His affair, and whoever engages himself in a lawsuit he does not know remains in disobedience to Allah until he desists." 'Ali (may Allah be pleased with him) delegated Abdallah ibn Ja'far for a lawsuit, saying that litigation has quham, that is, the rushing into perils, arguing with what does not befit in the heat of the dispute (Mawahib al-Jalil, 7/138).
Al-Ba'li the Hanbali, may Allah have mercy on him, reports that Ibn 'Aqil said in al-Funun: delegation is not valid from one who knows his principal's injustice in the lawsuit; the qadi comments on the word of the Most High "and do not be a defender for the treacherous" by saying that it indicates that no one may plead for another in establishing or denying a right whose reality he does not know; likewise in al-Mughni concerning the settlement over the blameworthy: the claimant's truthfulness is a condition, and it is not lawful to claim what one does not know to exist (al-Qawa'id wa-l-Fawa'id al-Usuliyya, p. 9).
Ibn Muflih, may Allah have mercy on him, notes that it is well known that the agent stands in the principal's place, as his substitute and his branch: he may therefore not claim what is not permitted to his principal, and claims only what he knows or deems true, as has been said. The qadi likewise deduces from the verse that no one may plead for another in establishing or denying a right while knowing the reality of the affair; Ibn al-Jawzi mentioned this without contradicting it, which confirms his agreement. Ibn 'Aqil, may Allah have mercy on him, repeats in al-Funun: delegation is not valid from one who knows his principal's injustice in the lawsuit; its apparent meaning is that it is valid if he does not know, and it is evident that he means by "knowledge" also supposition, otherwise it would be extremely far-fetched in the case of mere suspicion of injustice.
If it is objected that suspicion of prohibition does not prevent the validity of the contract, unlike certainty, and that nothing requires pleading falsehood, without contradiction with what precedes, the answer is that delegation and its validity aim only at pleading for what one was delegated while knowing or deeming it false; otherwise it would be possible to validate the contract with certainty while not pleading falsehood, which would have no benefit. His words indicate that in case of doubt about the injustice, delegation is valid and the pleader acts; thus act many people, indeed most: they are delegated and claim while doubting the validity of the claim, for the agent does not report about himself but conveys his principal's words, given his eloquence in argument; and need may call for that given the great difficulty, unlike the one who claims for himself, who knows his affairs and his cases. And Allah knows best (al-Adab al-Shar'iyya, 1/57-58).