Islamic Fiqh > Companies and leases > Wakala (agency mandate) > Delegation in acknowledgment (iqrar)
Contents
Updated on 25 September 2026 at 6:57 PM
This part belongs to the full section: All sections of this part.
The jurists differed on delegation in acknowledgment: is it permitted or not? The Shafi'is in the madhhab, the Hanbalis according to one view and al-Tahawi among the Hanafis judge that it is not: if one says to another "I have delegated you to acknowledge on my behalf to so-and-so such a thing", and the agent says "I acknowledged for him such a thing" or "I had him acknowledge it", it does not accept delegation, for it is a report about a right, like testimony. The Shafi'is add: delegation in it nevertheless constitutes an acknowledgment by the principal, through the information he gives of the existence of a right against him, according to the correct view; others say it is not an acknowledgment, as delegation for discharge is not a discharge. The point of disagreement is the formula "I have delegated you to acknowledge to so-and-so such a thing": if he says "acknowledge on my behalf to so-and-so a thousand he owes me", it is an acknowledgment with certainty; if he says "acknowledge against me in his favor a thousand", it is not an acknowledgment with certainty (al-Muhadhdhab, 1/349; al-Bayan, 6/401; Rawdat al-Talibin, 3/491-492; Asna al-Matalib, 2/262; Mughni al-Muhtaj, 3/198; al-Iqna', 2/323; al-Najm al-Wahhaj, 5/35).
The majority of the jurists, namely the Hanafis, the Malikis, the Hanbalis in the madhhab and the Shafi'is according to one view, judge delegation in acknowledgment valid, for it is the establishment of a right in liability by speech: delegation is therefore valid in it as in sale, and it differs from testimony, which does not establish the right but reports its existence against another. The Hanbalis specify the formula: "I have delegated you in acknowledgment"; if he says "acknowledge for me", that is not a delegation; and the agent must designate what he will acknowledge on his behalf: if he says "I have delegated you in acknowledgment to Zayd of property or a thing" and he acknowledges accordingly, the interpretation reverts to the principal, for he knows best what weighs upon him (al-Mughni, 5/53; al-Furu', 4/276; al-Mubdi', 4/357; al-Insaf, 5/357; Kashshaf al-Qina', 3/540; Sharh Muntaha al-Iradat, 3/506-507).
Al-Nawawi, may Allah have mercy on him, says: if we validate the delegation, nothing binds him before the acknowledgment of the delegation, according to the correct view settled by the majority; but al-Hawi and al-Mustazhiri contain an opinion according to which the delegation binds him himself, and Allah knows best. Once the delegation is validated, the agent must specify the nature of the acknowledgment and its amount: if he says "acknowledge for me to so-and-so a thing" and he acknowledges, the agent takes his interpretation; if he confines himself to "acknowledge for me to so-and-so", there are two views: the first assimilates it to "a thing"; the more correct of the two is that nothing binds him at all, for he may intend an acknowledgment of knowledge or of courage, not of property. I add: if he says "acknowledge on my behalf to so-and-so a thousand he owes me", it is an acknowledgment without disagreement, as al-Jurjani and others stated, and Allah knows best (Rawdat al-Talibin, 3/491-492).
As for the acknowledgment of the agent in the lawsuit, it is not accepted for acknowledging the collection of the debt unless he received for that an unrestricted delegation (mufawwada), according to the Malikis, the Shafi'is and the Hanbalis; for acknowledgment ends the lawsuit and contradicts it, so that the agent does not dispose of it, and permission for the lawsuit does not imply acknowledgment: if he acknowledges something, the principal is not bound by what he acknowledged, and the agent becomes like a witness. The Malikis say: the agent may not acknowledge a debt on his principal's behalf, even if delegated to the dispute; if he acknowledges something, the principal is not bound by it and the agent is like a witness, unless he received a general delegation, or unless, at the conclusion of the special delegation contract, he was allowed to acknowledge: he may then acknowledge for his principal what resembles the dispute, and what he acknowledges binds him if he acknowledges a similar object, without acknowledging a man suspected against him, and provided the acknowledgment is of the kind of that lawsuit, as if he were delegated for a debt and acknowledged deferring its payment or destroying a deposit entrusted to him.
The principal's opponent, that is, the debtor, may oblige him to entrust the acknowledgment to the agent, saying to the one who delegated an agent: "I will not litigate with your agent until you grant him the acknowledgment." That is evident if he also refuses to attend with his agent; but if he says: "I neither entrust nor allow the acknowledgment, lest the opponent corrupt him, but I will attend with the agent at the session, or nearby, so as to acknowledge what my opponent claims or deny it", his request is granted.
If the principal says to the agent: "acknowledge for me a thousand to Zayd", or "confess it to him", his acknowledgment is the principal's toward Zayd; the agent need not create the acknowledgment thereby, and it profits the principal neither to retract nor to remove his agent: the latter becomes a witness against him. The same applies if he says: "I discharge so-and-so from the right I have against him": that is a discharge proceeding from the principal (al-Sharh al-Kabir with Hashiyat al-Dasuqi, 3/55-56; Sharh Mukhtasar Khalil, 6/70; Tahbir, 4/280; al-Taj wa-l-Iklil, 3/196; al-Bahja fi Sharh al-Tuhfa, 1/331).
Ibn Qudama, may Allah have mercy on him, writes: if a man is delegated to the lawsuit, his acknowledgment on his principal's behalf, whether of receiving the right or anything else, is not accepted; Malik, al-Shafi'i and Ibn Abi Layla said so. Abu Hanifa and Muhammad hold it accepted in the judge's session for everything other than the hudud and retaliation. Abu Yusuf accepts it in the judge's session and elsewhere, for acknowledgment is one of the two answers to the claim, valid therefore from the litigating agent, like denial. For us, acknowledgment is an act that ends the lawsuit and contradicts it, so that the agent does not dispose of it, like discharge; it differs from denial, which does not end the lawsuit and which the agent may exercise in the hudud and retaliation as outside the judge's session; the agent moreover does not have the denial in a way that would prevent the principal from acknowledging: if he had the acknowledgment, denial would be barred to the principal, and the two would thus be distinguished. The agent likewise has neither settlement over the right nor discharge from it, without any disagreement known to us, for permission for the lawsuit implies none of that. If he is authorized to establish a right, he does not have the power to receive it: so said al-Shafi'i. Abu Hanifa holds that he has the power to receive it, for the purpose of establishment is reception. For us, reception is not covered by the authorization, neither by speech nor by custom, for not everyone content to establish a right is content to receive it. If he is delegated to receive a right and the debtor denies it, he is agent for establishing it against him according to one of the two views, that of Abu Hanifa; the other view excludes it, being one of the two views of the companions of al-Shafi'i, for they are two different meanings, and the agent for one is not agent for the other, just as he is not agent for reception by delegation to the lawsuit. The first view rests on the fact that reception is reached only through establishment: the authorization for it is therefore implicit by custom, reception being completed only thereby, like the one delegated to a purchase having the power to weigh the price, or the one delegated to a sale to deliver. It is also possible that, if the principal knows the debtor's denial or demand, it is a delegation to establishment and litigation, for he knows that reception depends on it; if he does not know it, it is not a delegation in the matter. No difference is to be made between a specific property and a debt. Some of Abu Hanifa's companions say: if he is delegated to receive a property, he does not have the power to establish it, for he is agent for its transfer, like the agent charged with having the wife transferred. For us, he is agent for the reception of the right, like the agent for the collection of a debt, and what they mentioned is valid by delegation to the collection of the debt: he is agent for collecting it and transferring it to him (al-Mughni, 5/58-59).
Abu Hanifa and Muhammad ibn al-Hasan, may Allah have mercy on them both, hold his acknowledgment accepted in the judge's session for everything other than the hudud and retaliation; Abu Yusuf accepts it in the judge's session and elsewhere, for acknowledgment is one of the two answers to the claim, valid therefore from the litigating agent, like denial. And they say: if the principal stipulates in the delegation contract that the agent has no right of acknowledgment, that right is removed from him according to the apparent meaning of the riwaya; if he acknowledges before the judge, it is not valid and he exits the delegation, just as they stipulated that delegation to acknowledgment is valid without the principal becoming an acknowledger by the mere delegation. Ibn Abidin reports from al-Tawawusi: the meaning is to delegate to the lawsuit saying "plead; if you see that a burden weighs on me or that I risk dishonor, then acknowledge the claim": his acknowledgment is then valid on the principal's behalf (Hashiyat Ibn Abidin, 7/296, 366; Darar al-Hukkam, 7/351).
The jurists differed on the validity of delegation in property of common access, such as reviving dead land, watering livestock, hunting, gathering firewood or taking shade: is it valid or not? The Shafi'is according to the azhar and the Hanbalis in the madhhab judge it valid, such as reviving dead land, hunting, gathering firewood and taking shade, as if one hired someone for it; for it is an acquisition of property by a means not imposed on him, and one of the causes of ownership: delegation is therefore valid in it as in purchase, and ownership accrues to the principal if the agent intended it for him; if he did not intend it for him but for himself, he becomes its owner and the delegation dissolves.
This differs from the picking up of lost property (luqata), in which delegation is not valid, for trust predominates in it; and from spoils (ghanima), for they are acquired by presence: the absent person therefore has no claim to them, according to the Shafi'is and the Hanbalis; the one who picks up or takes spoils becomes its sole owner, not his principal.
The Hanafis, the Shafi'is contrary to the azhar and the Hanbalis according to one view judge delegation invalid in this property, for the taking by hand belongs to the taker, who is its cause of ownership, and it does not turn by intention toward another; the principal does not dispose of it at the time of delegation, and whoever takes possession of it becomes its owner. The Hanafis argue: delegation in the taking of unclaimed property is void, for it requires the validity of the principal's command as to what he is delegated, namely the taking of the property; yet the command given to the delegated one to take it is invalid, for it bears on what does not fall within the scope of his authority: the agent disposes of it without the principal's command, and one who acquires without the principal's command cannot be his substitute, since delegation establishes the authority to dispose of what is established for the principal, which does not occur in one who acquires without his order; the unclaimed property belongs to whoever takes it, and no status can be produced in it for another (Rawdat al-Talibin, 3/491; al-Bayan, 6/396; Mughni al-Muhtaj, 3/198; Nihayat al-Muhtaj, 5/28; al-Najm al-Wahhaj, 5/34; al-Dibaj, 2/307; Kanz al-Raghibin, 2/848; al-Mughni, 5/52; al-Furu', 4/302; al-Insaf, 5/358; Kashshaf al-Qina', 3/541; Matalib Uli al-Nuha, 3/438; al-'Inaya, 8/306; al-Mabsut, 11/216; Tabyin al-Haqa'iq, 3/323; Hashiyat Ibn Abidin, 7/296).
The jurists agree that delegation in hajj is not permitted to one who is able to perform it himself, and they differed about the incapable person: may he delegate or appoint someone to perform hajj on his behalf? The majority, namely the Hanafis, the Shafi'is and the Hanbalis, hold that the incapable person may delegate someone to perform it on his behalf. The proofs follow.
"A woman of the tribe of Khath'am came, in the year of the farewell pilgrimage, and said: O Messenger of Allah, the obligation Allah has laid upon His servants of hajj has overtaken my father, a very old man unable to keep steady on his mount; may I perform it on his behalf? He said: yes, and that was in the farewell pilgrimage."Reported by al-Bukhari (1756) and Muslim (1334)
In a version of Muslim: she said: O Messenger of Allah, my father is a very old man, bound by the obligation Allah has laid of hajj, and he cannot keep steady on the back of his camel; the Prophet (peace and blessings of Allah be upon him) said: "Perform the hajj on his behalf" (Muslim, 1335).
"A woman of Juhayna came to the Prophet (peace and blessings of Allah be upon him) and said: my mother made a vow of hajj and died without performing it; may I perform it on her behalf? He said: yes, perform it on her behalf. Do you not see that if your mother had a debt, you would pay it? Settle Allah's debt, for Allah has more right to be paid."
"My father is an old man incapable of hajj, umra and travel." He said: "Perform the hajj in your father's place, and do the umra."Reported by Abu Dawud (1810), al-Tirmidhi (930), al-Nasa'i (2621) and Ibn Majah (2906), from Abu Razin al-'Uqayli
"A young maidservant of the tribe of Khath'am questioned the Messenger of Allah (peace and blessings of Allah be upon him) during the farewell pilgrimage: my father is an old man grown impotent, and the obligation Allah has laid of hajj has overtaken him; would it suffice that I perform it on his behalf? He said: yes, perform it in your father's place."Reported by Ahmad (1/75) and al-Tirmidhi (885), from 'Ali
"A man of the tribe of Khath'am came to the Messenger of Allah (peace and blessings of Allah be upon him) and said: Islam overtook my father when he was an old man unable to mount the riding beast, and hajj is prescribed for him; may I perform it on his behalf? He said: are you his eldest son? He said: yes. He said: if your father had a debt and you paid it on his behalf, would that suffice him? He said: yes. He said: perform the hajj then on his behalf."Reported by Ahmad (4/5) and al-Darimi (1839), from Abdallah ibn al-Zubayr; al-Hafiz said: its chain is sound (see Nil al-Awtar, 5/10)
The Hanafis set out: acts of worship are of types: purely financial, like zakat; purely bodily, like prayer and fasting; and combining the two, like hajj. Deputization suffices in financial worship, in incapacity as in ability, for its purpose is to meet the needy person's need, which is achieved by the deputy's act as by that of the person himself, while bearing the hardship of spending, so that the meaning of trial is realized in both cases. Deputization never suffices in purely bodily worship, for its purpose is to weary the soul that incites to evil, in quest of the Most High's pleasure, which is not achieved at all by the deputy's act, whence the uselessness of deputization. In worship combining property and body, like hajj, deputization suffices in case of incapacity, because of the hardship borne in spending, and does not suffice in case of ability, for lack of self-exertion: the two analogies are thus applied as far as possible. The condition of the represented person's incapacity is required only for obligatory hajj, not for the voluntary: in voluntary hajj, deputization is permitted even in full ability, for the door of the voluntary is wider, just as voluntary prayer may be performed sitting or mounted despite the ability to stand and sit.
The correct position of the madhhab is then that the essence of hajj occurs for the represented person, according to the preceding hadiths which indicate that the hajj itself occurs for him; and according to Muhammad, the hajj occurs to the one who performs it, while the one who commands has the reward of the spending, for hajj is a bodily worship whose expenditure is a condition of obligation, being incapable without it; deputization therefore does not run in it as in prayer and fasting, but the spending stands in place of the act of performing it oneself, as the compensation (fidya) of the senile old man stands in place of fasting. The first view is the correct one: the obligation therefore does not fall from the one who was commanded, namely the pilgrim (al-Hidaya, Sharh al-Bidaya, 1/183; Tabyin al-Haqa'iq, 2/85-86; Hashiyat Ibn Abidin, 2/74).
Ibn al-Humam, may Allah have mercy on him, sets out: the original purpose of the obligations is trial, so that there may appear from the legally accountable what the eternal knowledge previously knew of him: obedient patience with what he was commanded, leaving his own desire to establish his Lord's command, whence reward, or contravention, whence excuse or punishment, thus realizing the effects of the Most High's attributes, whose resplendent wisdom and perfection of grace and bounty require not punishing what He knows will occur as contravention before the accountable person's choice becomes manifest. The obligations comprise bodily, financial and combined worships: the hardship, in the bodily, binds the limbs and the soul to the specific acts of service; in the financial, it lies in the diminution of the property beloved to the soul, to which is added another purpose, meeting the needy person's need, the hardship in it being not the spending but the diminution. Everything containing the hardship leaves not his charge except by his own act, for thereby the purpose of trial is realized; deputization is therefore invalid in the bodily, another's act not realizing the self-exertion of contradicting one's desire with patience. As for the financial, its hardship is the diminution of property by spending: deputization is invalid in it and none may substitute for him, for permission is required, and the deputy's act is only making available to the poor, whereby the other purpose is accomplished without hardship for the owner.
On this logic, analogy would require that deputization not run in hajj, which combines the two hardships, bodily and financial, the first not having been fulfilled by the one commanded; but the Most High granted a dispensation in its waiving by bearing the other hardship, namely expenditure, in case of incapacity persisting until death, out of mercy and grace: one pays the expenses of the hajj to the one who performs it in one's place, unlike the case of ability, where he is not excused, for his abstention stems only from preferring his comfort to his Lord's command, which calls for punishment, not alleviation by dispensation. The condition of persistence until death holds because hajj is obligatory once in a lifetime: where the command attaches to it with its conditions, the person must discharge it himself from the first year of ability; if he does not, he sins, and personal discharge remains upon him throughout his life, even if he no longer fulfils the conditions; when he becomes incapable, in the sense of an incapacity for the rest of his life, delegation is granted him out of mercy and grace. If any time of his life remains after that delegation for incapacity, the condition of the dispensation appears to fail: so if another performed the hajj on his behalf for an illness whose cure was hoped for or not, or he was imprisoned, his case is judged by the persistence of the impediment until death: if it persists, he has performed validly; if he recovers or leaves prison, he has not performed validly and personal performance becomes obligatory again. And if a healthy man had someone perform the hajj in his place and then became incapable, it does not suffice him: so in the Fatawa Qadi Khan, and it is the correct position, for he delegated before the cause of dispensation became obligatory, and no other reading can be imagined (Sharh Fath al-Qadir, 3/145-146).
The Shafi'is say: that for which one delegates must admit deputization, for delegation is deputization: what does not admit the latter does not admit delegation. Delegation is therefore not valid in an act of worship, its purpose being the trial of the person, except hajj in case of incapacity and umra, according to the preceding hadiths; and their accessories attach to them, like the two rak'a of the circumambulation although prayer does not admit deputization in it, as well as the distribution of zakat, the expiations, voluntary charity, the slaughtering of the offerings, the 'aqiqa and the wedding sheep (al-Hawi al-Kabir, 6/497; al-Bayan, 6/396; Rawdat al-Talibin, 3/489-490; Sharh Muslim, 9/98; al-Majmu', 7/69; Mughni al-Muhtaj, 3/196; Nihayat al-Muhtaj, 5/26; al-Najm al-Wahhaj, 5/31; Kanz al-Raghibin, 2/847; al-Dibaj, 2/306).
The Hanbalis say: delegation is valid in every right of Allah, among the acts of worship, that admits deputization, like hajj and umra: one appoints whoever will perform them on one's behalf without restriction in the voluntary, and in case of incapacity in the obligatory, like the impotent; the two rak'a of the circumambulation attach to them, although prayer does not admit deputization. Whoever combines the conditions of hajj's obligation and is incapable of it because of an impediment with no hope of removal, like old age or an incurable illness, or is so frail that he cannot keep steady on the mount without unbearable hardship, as well as the senile old man and his like: as soon as he finds someone to perform it in his place and the means to appoint him, it becomes binding on him, according to the preceding hadiths and because it is a worship whose neglect calls for an expiation, so that another's act may stand in place of his own, like fasting which is ransomed by compensation in case of incapacity, unlike prayer. And if he finds no means to appoint, hajj is not binding on him, without disagreement, for it is sound that, having no means to perform the hajj, it was not obligatory for him: the sick man has even more right (al-Mughni, 3/91-92; Kashshaf al-Qina', 3/542; Sharh Muntaha al-Iradat, 3/510; Sharh al-Umda, 2/135; al-Furu', 3/183; Nil al-Awtar, 5/10; al-Ifsah, 1/451).
The Malikis differed on delegation and deputization in hajj and umra: are they permitted with disapproval or not at all? According to one view, it is valid to appoint one who will perform the hajj in one's place for anything other than the obligatory, with disapproval, or to delegate one who will perform it on one's behalf: this is what Khalil and his commentators followed. Al-Dardir, may Allah have mercy on him, writes: hajj by appointing one who will act as deputy in it, or by delegating one who will perform it on his behalf. In al-Sharh al-Saghir: hajj by delegating one who will perform it on his behalf, other than the obligatory, or one who will appoint for him someone to perform it. Al-Kharshi, may Allah have mercy on him, specifies: it is permitted to him to appoint one who will act as deputy in the hajj, or to delegate one who will perform it, for the author's words explain in what delegation is valid, not in what it is permitted; and this is in reality a deputization (istinaba), not a representation (al-Sharh al-Kabir with Hashiyat al-Dasuqi, 3/53; al-Sharh al-Saghir, 8/66; Sharh Mukhtasar Khalil, 6/69).
Al-Hattab, may Allah have mercy on him, sets out the disagreement: in al-Tiraz, the masters of the schools agree that the healthy man able to perform the hajj may not have a deputy during his illness, and that in the voluntary the matter is disputed: the madhhab sees in it a disapproval, without the remuneration, should it occur, being invalid. This doctrine is reported by the author of the Mukhtasar, Ibn Farhun, al-Tilmisani, al-Qarafi and al-Tadili, while others restrict validity to the disapproved form. The words of Ibn Arafa are explicit: delegation is not valid from one whose recovery is hoped for. According to Ibn Bashir, it is not valid from the able one by consensus, and a similar statement is reported from al-Lakhmi. Al-Hattab comments: see how he said "not valid", reporting it from Ibn Bashir, while attributing the rule of bindingness to Ashhab; it may be that Ashhab's words bear on the voluntary of the healthy man, but the context does not suggest that he understood Ashhab with respect to the obligatory, and Allah knows best. The words of Ibn Arafa contain another teaching: the one whose recovery is hoped for is assimilated to the healthy.
The author's words "otherwise disapproval" include, on their apparent meaning, three situations: the deputization of the healthy man in the voluntary, and that of the incapable in the obligatory as in the voluntary; but in reality there are here only two situations, for the incapable person is bound by no obligation. Ibn al-Hajib reported three views on its validity: in al-Tawdih, the prevalent opinion is invalidity with disapproval, stated by al-Jallab; the author's words (Ibn al-Hajib) are to be understood as prohibition, not disapproval, as appears from the report of al-Lakhmi. Such is the view followed by Ibn Abd al-Salam and Ibn Arafa, the disapproval being reported from al-Jallab; Ibn Farhun objects to the author for having understood invalidity as disapproval in Ibn al-Hajib's words: the disapproval must be understood as prohibition, since Ibn Habib reports from Malik, in al-Wadiha: "it is not valid", and the phrase "not valid" excludes that it be a matter of disapproval.
Subdivision: Sanad says that the discussion of umra is like that of voluntary hajj, and it was asked: did Malik permit umra on behalf of another while he did not permit it for hajj? He replied: yes, and I did not hear it from him: it is an opinion. If it is so bequeathed, the apparent meaning of his words is that it is disapproved at the outset, according to "if it is bequeathed"; and such is Malik's view in al-Muwatta: "Let no one perform hajj on behalf of another, nor umra, neither for a dead person nor for a living one, unless he has made it a testamentary recommendation, which is then carried out." The discussion of umra is like that of voluntary hajj, for it is a bodily worship of the same standing: what is valid in hajj is valid in umra, and what is excluded from it is excluded from it.
I conclude that deputization in umra carries only disapproval, whether the represented person is healthy or incapable, whether he performed it or not, and Allah knows best. Another subdivision: in Sharh al-Umda, representation in hajj without remuneration is good, for it is a recognized act; with remuneration, the madhhab differs, and the text reported from Malik is disapproval, for he saw in it a means of consuming this world through the work of the hereafter. Teaching: the shaykh Ibn Abd al-Salam, may Allah have mercy on him, reports in the commentary of Ibn al-Hajib that the shaykh Abu Bakr al-Tartushi said, in his note on the disagreements: the difference between representation (niyaba) and deputization (istinaba) is that representation is the occurrence of the hajj on behalf of the represented with the falling away of the obligation, whereas deputization means only the permission of the act by another, the other designating the represented (Mawahib al-Jalil, 4/5, 7; Sharh Mukhtasar Khalil, 2/295-296; Tahbir, 4/279).
Al-Qurtubi, may Allah have mercy on him, reports that Malik used to say: the impotent is released from the obligation of hajj at the root, whether or not he has the means to have it performed on his behalf with money; hajj is not binding on him, even if it was obligatory for him and he then became impotent; and no one may perform it on his behalf during his lifetime, but if he recommends by bequest that it be performed on his behalf after his death, it is performed from the third, as a voluntary act. He relies on the word of the Most High:
"And that man shall have nothing but what he strives for"
Surah an-Najm, 39
Allah indeed declares that man has only his own effort: whoever claims that another's effort is credited to him contradicts the apparent meaning of the verse; and on:
"And upon Allah it is due to the people to perform the pilgrimage of the House, for whoever is able to find a way to it"
Surah Al Imran, 97
This verse does not concern the incapable, for hajj is the accountable person's setting out in person toward the Sacred House; it is a worship into which deputization does not enter, even in case of incapacity, like prayer. Our scholars add that the hadith of the Khath'ami woman has not for its purpose the imposition of the obligation, but the exhortation to filial piety and care for the parents' interests in this world and in religion, and the procuring of benefit for them by instinct as by the Law; the Prophet (peace and blessings of Allah be upon him), having seen in the woman apparent emotion and compliance, the sincere desire for piety toward her father and the eagerness that good and reward reach him, regretting that he be deprived of the blessing of hajj, gave her that answer, just as he answered the other woman: "yes, perform it on her behalf. Do you not see that if your mother had a debt, you would pay it?" She said: yes (reported by al-Bukhari, 1754). This indicates that it belongs to voluntary acts and to conveying piety and good deeds to the dead: see how he likened the act of hajj to the debt, whereas by consensus, if a dead person leaves a debt, the heir is not bound to pay it from his own property; if he does so voluntarily, the debt is settled for the deceased.
Among the proofs that hajj was not obligatory for this woman's father is her statement "he cannot": one who cannot is not bound by it, which is an explicit affirmation of the negation of obligation. What is negated at the beginning of the hadith with certainty cannot be established at its end by a supposition, however supported by his saying "Allah's debt has more right to be paid"; for, taken literally, this is not a matter of consensus: the slave's debt has even more right to be settled and one begins with it by consensus, given man's poverty and Allah the Most High's self-sufficiency. Such are the words of Ibn al-'Arabi.
Before the question, the text mentions a nuance of formula: delegating divorce in the formula means entrusting him with saying "you are divorced", without disobedience in that; but zihar has no specific formula: it lies in the meaning, so that if one has him say "you are, for my principal, like his mother's back", the delegation does not occur through that formula. If it is objected that delegating divorce during menstruation is a disobedience, like zihar, despite its validity, the answer is that a distinction is made: the disobedience of zihar is intrinsic, whereas the effect of divorce during menstruation stems from an external circumstance, the origin, namely divorce, not being disobedience (Sharh Mukhtasar Khalil, 6/70; al-Sharh al-Kabir with Hashiyat al-Dasuqi, 5/56-57; Tahbir, 4/280; al-Mukhtasar al-Fiqhi, 10/268; al-Taj wa-l-Iklil, 4/197; Rawdat al-Qudat, 2/636; al-Tanbih, 108).
The jurists differed on delegation in taking the wife back: is it valid to delegate one who will take back for him his wife divorced revocably? The majority of the jurists, namely the Hanafis, the Malikis, the Shafi'is according to the sounder view and the Hanbalis, judge it valid: the delegation that gives the power to bring the marriage into being gives, a fortiori, the power to renew it by taking back; he disposes indeed by the stronger delegation, which is the creation of the marriage, and the weaker, which is annulling it by taking back, even more so (al-Bayan, 6/397; Rawdat al-Talibin, 3/490; Mughni al-Muhtaj, 3/197; Nihayat al-Muhtaj, 5/26; al-Najm al-Wahhaj, 5/32; al-Dibaj, 2/306; Kanz al-Raghibin, 2/847; al-Mughni, 5/53; al-Sharh al-Kabir, 5/205; al-Mubdi', 4/358; al-Insaf, 5/358; Kashshaf al-Qina', 3/541; Sharh Muntaha al-Iradat, 3/507).
The Hanbalis specify: delegation in taking back is valid, but it is not valid to delegate his wife in her own taking back, nor in that of another of his divorced wives; for she is barred from conducting the offer of marriage in her own name from the outset, and she is therefore barred from delegation in the taking back that entails the marriage's permanence, no difference being made between the two; al-Khalawati nonetheless approved this reasoning by motivating it with the absence of any required formula. It is likewise not valid for a Muslim to delegate an unbeliever in the taking back of a Muslim wife, for one delegates in a matter only one whose act is valid in it. The Shafi'is, against the sounder view, judge delegation in the taking back not permitted, as in ila' and zihar (al-Bayan, 6/397; Rawdat al-Talibin, 3/490; Rawdat al-Qudat, 2/636; al-Taj wa-l-Iklil, 4/195; al-Mughni, 5/53; al-Sharh al-Kabir, 5/204; al-Mubdi', 4/357; al-Insaf, 5/356; Kashshaf al-Qina', 3/541; Sharh Muntaha al-Iradat, 3/506; Matalib Uli al-Nuha, 3/437).
The Malikis say: delegating another for the imamate, in a place where he will lead the people in prayer or preach on his behalf, is permitted (Hashiyat al-Sawi on al-Sharh al-Saghir, 8/64). Al-Dasuqi, may Allah have mercy on him, adds: some extended it to the established pious function (wazifa), such as the call to prayer, the imamate or recitation in a specified place: deputization is valid in it so long as the endowment has not stipulated its exclusion. Know that if the endower stipulates the absence of deputization, the stipend belongs neither to the original holder for having neglected it, nor to the deputy, the function not being established in his person originally; and if the endower has not stipulated the absence of deputization, the stipend belongs to the one established in the function, with the deputy according to what they agree to pay him, little or much, whether the deputization is motivated by necessity or not: thus said al-Manufi, and such is the choice of Ibn Wa'j, the most accommodating view. Al-Qarafi, may Allah have mercy on him, restricts: if the deputization is motivated by necessity, then so it is; otherwise, the deputy as well as the one represented have no right to the stipend (Hashiyat al-Dasuqi on al-Sharh al-Kabir, 3/53).
The Shafi'i al-Ramli, may Allah have mercy on him, was asked: if the muezzin delegates an agent for the call to prayer, is it permitted, or only if the judge or the imam installs him in that place? And is delegation valid if he is appointed by private individuals? Clarify for us fully, may Allah grant you good and prolong your days. He answered: delegation in the call to prayer is not valid, for it is a devotion whose reward belongs to the one who performs it, and deputization is therefore not accepted in it, and Allah the Most High knows best (Fatawa al-Ramli, p. 284).
Third category: the matters in which delegation is invalid by unanimous agreement. The people of knowledge agree that neither delegation nor deputization is valid in prayer in any circumstance: the purpose of bodily worship is to weary the body, subdue the soul that incites to evil and test the accountable person, and this is not achieved by the deputy's act; the benefit it contains is humility, devotion, veneration of the Lord and the manifestation of servitude to Him, and the agent's humility does not imply the principal's: if another performs it in his place, the benefit the Lawgiver requires of every accountable person is missed. Prayer belongs moreover to the obligations by which man is made to serve in person: what one is made to serve by in person, like ablution and prayer, does not admit that another substitute for him (Hashiyat Ibn Abidin, 1/355; Hashiyat al-Dasuqi, 3/56; al-Muqaddimat al-Mumahhadat, 3/51; al-Bayan, 6/396; Rawdat al-Talibin, 3/489; Mughni al-Muhtaj, 3/196; Nihayat al-Muhtaj, 5/26; al-Najm al-Wahhaj, 5/31; al-Dibaj, 2/305; Kanz al-Raghibin, 2/846; al-Mughni, 5/53; al-Sharh al-Kabir, 5/205; al-Mubdi', 4/358; al-Insaf, 5/358; Kashshaf al-Qina', 3/541; Sharh Muntaha al-Iradat, 3/507).
Ibn al-'Arabi, may Allah have mercy on him, writes: deputization in prayer is not permitted in any circumstance, by the consensus of the community: the accountable person performs it himself, even with both eyelids cut off, except the two rak'a of the circumambulation (Ahkam al-Qur'an by Ibn al-'Arabi, 3/221). Al-Mawardi, may Allah have mercy on him, adds: the majority of the jurists and the other scholars judge deputization in prayer invalid in all circumstances, with ability or incapacity, for prayer is like faith, composed of word, act and intention; deputization in faith being invalid by consensus, it is invalid in prayer by the stronger argument; as for the two rak'a of the circumambulation, they follow what admits deputization and were therefore specified by permission, through specialization of meaning (al-Hawi al-Kabir, 15/313-314).
Ibn al-Humam, may Allah have mercy on him, resumes here the analysis of the purpose of the obligations and of trial set out above, concluding that deputization is invalid in bodily worships, another's act not realizing the weariness of contradicting one's desire with patience (Sharh Fath al-Qadir, 3/145-146). The Shafi'is draw from it: delegation is not valid in an act of worship such as prayer, fasting or retreat, even if it requires no intention, for its purpose is the trial of the person, except hajj in case of incapacity and umra, according to the preceding hadiths, with their accessories like the two rak'a of the circumambulation, the distribution of zakat, the expiations, voluntary charity, the slaughtering of the offerings, the 'aqiqa and the wedding sheep.
Al-Mawardi, may Allah have mercy on him, classifies the acts into four categories: that in which delegation is valid with incapacity as with ability; that in which it is invalid in both cases; that in which it is valid with incapacity but not with ability; and that in which it is invalid with ability, its validity with incapacity being disputed. The second category, invalid with ability as with incapacity, comprises the worships instituted for sincerity, like prayer, or for restraint, like oaths and li'an.
As for purification, it divides into three categories: that in which delegation and deputization are valid, namely the removal of impurity; that in which delegation is not valid, namely the removal of ritual impurity, for its purpose is sincerity and acting by intention: if a man passes over another's limbs by order, intending their purification for prayer, it is valid, but it is not a delegation, it is an assistance, like the help given by fetching water or lending a garment; and the third category is that whose obligation falls away by another's act without delegation, namely the washing of the dead, which is a collective obligation: as soon as one of the living performs it, the obligation falls from the others, even if he has no mandate (al-Hawi al-Kabir, 6/497; al-Bayan, 6/396; Rawdat al-Talibin, 3/489-490; Sharh Muslim, 9/98; al-Majmu', 7/69; Mughni al-Muhtaj, 3/196; Nihayat al-Muhtaj, 5/26; al-Najm al-Wahhaj, 5/31; Kanz al-Raghibin, 2/847; al-Dibaj, 2/305).
The Hanbalis say: delegation is not valid in a purely bodily worship unrelated to property, such as prayer, fasting, purification from minor or major impurity, and the like: retreat, the Friday bath, renewing ablution; delegation is invalid in them for they attach to the body of the one obligated, the reward belonging to a command proper to the retreatant, which is to dwell himself in the mosque: deputization does not reach it. On the other hand, delegation for purifying the body and the garment from impurity is valid, for it belongs to the means; and it is likewise valid to intend the removal of ritual impurity while appointing one who will pour the water or wash the limbs on one's behalf (al-Mughni, 3/91-92; Kashshaf al-Qina', 3/542; Sharh Muntaha al-Iradat, 3/510; al-Furu', 3/183).
No disagreement exists among the jurists of the four schools: delegation in fasting is not valid; no one may appoint one who will fast on his behalf during his lifetime, in any circumstance. They then differed: does deputization reach it after death? The Hanafis, the Malikis, the Shafi'is according to the later doctrine and the Hanbalis according to one view hold that no one fasts on behalf of another, for fasting belongs to the obligations by which man is made to serve in person, like ablution and prayer: none may substitute for him (Hashiyat Ibn Abidin, 1/355; Hashiyat al-Dasuqi, 3/56; al-Muqaddimat al-Mumahhadat, 3/51; al-Bayan, 6/396; Rawdat al-Talibin, 3/489; Mughni al-Muhtaj, 3/196; Nihayat al-Muhtaj, 5/26; al-Najm al-Wahhaj, 5/31; al-Dibaj, 2/305; Kanz al-Raghibin, 2/846; al-Mughni, 5/53; al-Sharh al-Kabir, 5/205; al-Mubdi', 4/358; al-Insaf, 5/358; Kashshaf al-Qina', 3/541; Sharh Muntaha al-Iradat, 3/507).
Ibn al-'Arabi, may Allah have mercy on him, says: fasting admits no deputization in any circumstance (Ahkam al-Qur'an, 3/221). Ibn al-Humam resumes here the analysis of the purpose of the obligations and of trial set out above, concluding that deputization is invalid in bodily worships (Sharh Fath al-Qadir, 3/145-146). Al-Mawardi ranks fasting among that for which delegation is not valid with ability, its validity with incapacity being disputed: if the obligation arose during his lifetime, no one fasts on his behalf, whether he is incapable or capable; if he has died, al-Shafi'i held in the earlier doctrine that fasting on his behalf is valid according to a report, before retracting it in the later doctrine and forbidding it, given the weakness of the report and its susceptibility to interpretation (al-Hawi al-Kabir, 6/497).
The Hanbalis in the madhhab and al-Shafi'i in the earlier doctrine, the choice of al-Nawawi, hold that whoever dies with a voluntary vowed fast must have it fasted by his executor. Al-Insaf specifies: it is recommended for the executor to do it; know that if he could dispense with it, it becomes obligatory for him: fasting is recommended for the executor, who may pay from the estate a poor person for each day to fast on his behalf; if he could not dispense with it, nothing binds him (al-Insaf, 3/336-337; see also Maraqi al-Falah, 375; Jawahir al-Iklil, 1/163; al-Majmu', 7/618, 627; al-Ifsah, 1/415).
The Hanbalis and al-Nawawi rely on the following proofs:
"A man came to the Prophet (peace and blessings of Allah be upon him) and said: O Messenger of Allah, my mother died owing a month of fasting [or: a vowed fast] to be performed; may I discharge it on her behalf? He said: if your mother had a debt, would you pay it? He said: yes. He said: Allah's debt has more right to be paid."Reported by al-Bukhari (1953) and Muslim (1148), from Ibn Abbas
"While I was sitting with the Messenger of Allah (peace and blessings of Allah be upon him), a woman came and said: I gave my mother a maidservant as charity, and she has died. He said: your reward is established, and the inheritance returns her to you. She said: O Messenger of Allah, she had a month of fasting to perform; may I fast on her behalf? He said: fast on her behalf", to the end of the hadith.Reported by Muslim (1149), from Burayda
"A woman boarded the sea and made a vow that if Allah saved her she would fast a month; Allah saved her and she died without fasting. Her daughter, or her sister, came to the Messenger of Allah (peace and blessings of Allah be upon him), who ordered her to fast on her behalf."Reported by Abu Dawud (3308), from Ibn Abbas
The question has been set out in detail in the book of fasting.
The jurists agree on the invalidity of delegation in oaths and vows: it is not permitted to appoint one who will swear in one's place, for the oath admits no deputization: it is a bodily act attaching to the person of the swearer, it resembles worship by its attachment to the veneration of Allah the Most High, and it attests the swearer's truthfulness about what he knows of himself, whereas the agent's truthfulness does not indicate his principal's. Al-Dasuqi, may Allah have mercy on him, classifies the act the Lawgiver requires of the person into three categories:
The jurists agree on the invalidity of delegation in ila' (the oath of conjugal abstinence), for it is an oath, and delegation is therefore not valid in it (previous sources). They agree as well on its invalidity in the division of nights between the wives, for it attaches to the husband's body for an act that another cannot produce (previous sources). Finally, there is no disagreement among the scholars of the community: delegation in acts of disobedience is not permitted, such as theft, fornication, murder or usurpation, nor in assaults on persons and the like; for that is forbidden: the principal cannot do it himself, being void and unjust, and he therefore cannot entrust it to another (Sharh Mukhtasar Khalil, 6/70; al-Sharh al-Kabir with Hashiyat al-Dasuqi, 5/56-57; Tahbir, 4/280; al-Mukhtasar al-Fiqhi, 10/267; al-Taj wa-l-Iklil, 4/197; Mawahib al-Jalil, 7/146; Rawdat al-Qudat, 2/636; al-Tanbih, 108; al-Bayan, 6/397; Rawdat al-Talibin, 3/490; Mughni al-Muhtaj, 3/197; Nihayat al-Muhtaj, 5/26; al-Najm al-Wahhaj, 5/32; al-Dibaj, 2/306; Kanz al-Raghibin, 2/847; al-Mughni, 5/53; al-Sharh al-Kabir, 5/205; al-Mubdi', 4/358; al-Insaf, 5/358; Kashshaf al-Qina', 3/541; Sharh Muntaha al-Iradat, 3/507).