Islamic Fiqh > Companies and leases > Wakala (agency mandate) > Violation of the stipulation of the option of rescission in a sale
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Updated on 25 September 2026 at 6:57 PM
This part belongs to the full section: All sections of this part.
This second part of the rules of the mandate (wakala) examines the cases in which the agent departs from what was entrusted to him: violation of the stipulated option of rescission (khiyar), performing a valid contract when he was entrusted with a void one, buying above the market price, the agent buying from himself or from his close relatives, buying a defective item, and exceeding the restrictions fixed by the principal as to the genus or the amount of the price. It then deals with the agent's right to retain the purchased goods until he is reimbursed, the delegation of the agent to another, and the plurality of agents, according to the positions of the four schools with their classical references.
The Hanafis said: if the principal mandates him to sell while instructing him to stipulate the option (khiyar) for the principal, and he sells without stipulating the option, the sale is not valid; it remains suspended upon the principal's ratification. If he sells and stipulates the option for himself, he may not ratify the contract himself; for were he to hold the ratification by his own authority, the restriction would be pointless, and the principal's option remains even after his ratification: it is a rescission (faskh) binding upon the agent, because the option was established for the principal by the condition, and it becomes like the option for defect once established by the contract. Such is the view of al-Kasani in Bada'i' al-Sana'i' and al-Bahr al-Ra'iq (Bada'i' al-Sana'i', 6/27; al-Bahr al-Ra'iq, 6/22; al-Fatawa al-Hindiyya, 3/53).
But al-Sarakhsi said: if he is commanded to sell and to stipulate the option for the principal for three days, and he sells without an option, or with an option shorter than three days, and the buyer rejects the contract, his sale is void and he is liable for it; for he came with a contract more harmful to the principal: he had ordered him a sale which left him, for these three days, the choice to rescind the contract or confirm it. The agent came with a contract in which this measure of choice is not established for the principal: he has thus contravened, like an usurper (al-Mabsut, 19/55-56).
If the principal says: "Sell it stipulating the option for me for a month", and the agent sells stipulating the option for three days, this is valid according to Abu Hanifa by juridical preference (istihsan), and not valid according to the two companions, Abu Yusuf and Muhammad; for the foundation of the latter is that the option is established for the duration of the month with a valid sale: the principal ordered a contract leaving the choice to the principal for this duration, and the agent did not come with that, so he is liable.
As for Abu Hanifa, he holds that the stipulation of the option in a sale does not exceed three days: the mandate is therefore, in his view, a mandate with a void sale; and the agent of a void sale who performs a valid sale has his act enforced for the principal by istihsan: this case is like that one (al-Mabsut, 19/55-56). Burhan al-Din Ibn Maza said likewise, citing Muhammad: a man orders another to sell his slave and orders him to stipulate the option of three days for the principal; he sells without stipulating the option: the sale is not permitted; for he has contravened his master's order to his detriment: he had ordered him a sale which binds him without transferring ownership without his consent, and he came with a sale which binds his ownership without his consent (al-Muhit al-Burhani, 6/646).
The Shafi'is said: if the principal says "sell with the condition of the option" and the agent sells absolutely, the sale is not valid; and if the principal orders the sale without specification, the agent may not stipulate the option for the buyer; likewise the agent of purchase may not stipulate the option for the seller. As for stipulating the option for both of them themselves or for the principal: two views; al-Nawawi said the sounder of the two is permissibility (Rawdat al-Talibin, 3/524).
As for the Malikis, their rule is that the agent of sale who contravenes what he was mandated for, or contravenes custom and usage in the absolute sale, is given that the principal has the choice between ratifying his act or rejecting it; and the principal has the right to return the goods if they still exist, or their value if they have perished, from the buyer (Sharh al-Kabir with Hashiyat al-Dasuqi, 5/64-65; al-Taj wa-l-Iklil, 4/205; Sharh Mukhtasar Khalil, 6/75; Tahrir al-Mukhtasar, 4/287-288).
The jurists differed regarding the agent to whom the principal entrusted a void sale or purchase (fasid): does he own performing it with a valid contract, or not, or is contracting permitted to him without restriction?
The imam Abu Hanifa and Abu Yusuf hold that if the principal says to the agent: "Sell it with a void sale", the agent owns the valid sale: if he sells it with a lawful transaction, the contract is valid; this is istihsan according to them; for he came with the very genus of disposition he was ordered, and which is better for the principal than what he was ordered: he is thus not in contravention. Indeed, this is not a true contradiction, for the valid sale is better, and whoever is mandated with something is mandated by indication with what is better than it; and what is established by indication is like what is established by explicit text. He has therefore come with what he was mandated for, like the agent mandated to sell at one thousand who sells at two thousand.
The explanation is that he is ordered to feed his principal the unlawful through trade, and he feeds him the lawful; and trade is lawful for acquiring the lawful through it, not the unlawful (al-Mabsut, 19/56; Bada'i' al-Sana'i', 6/29). The majority of the jurists, the Malikis, Shafi'is and Hanbalis, as well as Muhammad ibn al-Hasan and Zufar among the Hanafis, hold that if the principal mandates the agent with a void sale or purchase, the agent owns neither the sale nor the purchase, neither valid nor void: the principal did not permit it, and Allah, the Most High, did not permit the void; the principal does not own the void sale, and the agent has even less right to it.
The argument of the Hanbalis is that it is a mandate which does not imply a lawful sale:
Moreover, the void sale is a sale which does not of itself confer the legal status, while the valid sale confers it of itself: the two are therefore different, and the mandate with one is not a mandate with the other; if he performs a valid sale, he is in contravention (al-Mabsut, 19/56; Bada'i' al-Sana'i', 6/29; al-Ishraf, 3/83-84, no. 944; al-Muhadhdhab, 1/352; Rawdat al-Talibin, 3/517; al-Mansur, 113; Asna al-Matalib, 2/274; al-Mughni, 5/76; al-Kafi, 2/244; al-Mubdi', 4/377; al-Insaf, 5/392; Kashshaf al-Qina', 3/562; al-Rawd al-Murbi', 2/65; Matalib Uli al-Nuha, 3/442; Sharh Muntaha al-Iradat, 3/508).
The mandate of purchase is either absolute or restricted, and each has its ruling. The absolute mandate of purchase, as when the principal says to the agent: "Buy me what you want", "what you see fit", "any garment you like", "any house you like", or "whatever is available to you in garments or beasts of burden": the Hanafis, the Malikis and the Hanbalis in one view hold it valid; for the principal delegated the matter to the agent, and validity stands despite gross ignorance, like the bida'a (goods sold by the broker without description) and the mudaraba. The Shafi'is and the Hanbalis in the madhhab hold that such an absolute mandate of purchase is not valid, for the agent may buy what he cannot pay the price of; the detail of this has been given earlier, at the beginning of this book, in the chapter on the types of mandate.
Acting upon the absoluteness in the mandate of purchase: the jurists asked whether, when the principal grants the agent an absolute purchase, the agent acts upon the absoluteness or restricts himself to custom or otherwise. Al-Kasani said: if the mandate of purchase is absolute, the absoluteness is applied to it as much as possible, unless an indication of restriction arises from custom or otherwise, in which case he abides by it.
On this basis, if a man mandates another to buy a slave girl, specifying her type and her price so that the mandate is valid, and the agent buys a slave girl with a hand or foot amputated by deformity, or one-eyed, the purchase binds the principal; likewise if he buys a slave girl with both hands or both feet amputated, or blind: according to Abu Hanifa she binds the principal, while according to the two companions she binds the agent.
The argument of the two companions is that the slave girl is bought for service, by custom and usage; and the purpose of service is not achieved when the kind of benefit has vanished: the agent is therefore bound by the condition of soundness, indicated by custom. Hence, they say, it is not permitted to manumit her for expiation (kaffara), even though the text of manumission is absolute as to the condition of soundness, for soundness is established there by indication, as here. The argument of Abu Hanifa is that the name "slave girl" employed absolutely applies to her as to the one of sound limbs: the absolute may only be restricted by an indication, and such an indication exists (Bada'i' al-Sana'i', 6/29-30).
As for expiation: the command concerns the manumission of a "raqaba" (a person to be freed), and the raqaba is the name of an entity composed of these parts; if what founds a kind of its benefits vanishes, the entity collapses and the absolute name of raqaba no longer covers it. The name "slave girl", however, does not designate the entity in view of its parts, so that her deficiency does not undermine the name of slave girl, unlike the name of raqaba; to the point that if the mandate were to buy a raqaba, buying a defective one would not be valid, as applies in the case of expiation.
The Malikis said, in continuation of the foregoing: it is obligatory upon the agent, in the absolute mandate of purchase, to abide by custom and to buy only what befits the principal, without exceeding that; if he contravenes, the principal has the option, as when he mandates him to buy a garment or a slave and he buys what does not befit him: the purchase does not bind him, and he may return it if he wishes; this is the view of Ibn al-Qasim. Ashhab said: it binds him. Some jurists of Qayrawan restricted the first view to the case where the price was not named; if the price was named and the agent buys at that price, the purchase binds the principal; others said it should not bind him even so, even if the price were named (Sharh al-Kabir with Hashiyat al-Dasuqi, 5/57-58; al-Taj wa-l-Iklil, 4/199-200; Mawahib al-Jalil, 7/147-148; Tahrir al-Mukhtasar, 4/282, 284; Sharh Mukhtasar Khalil, 6/70, 73; Minh al-Jalil, 6/638).
The majority of the jurists, Hanafis, Malikis, Shafi'is and Hanbalis, hold that if the agent of purchase buys at the market price, at a lower price, or with an increase which people tolerate in its like, the purchase stands against the principal; for this is among what he is excused for when the principal has not fixed the price: the increase which people tolerate counts among the market price, and the small increase is unavoidable. If the purchase were not enforced upon the principal, matters would become straitened for the agents, they would refrain from accepting mandates, which people need, and necessity has imposed bearing them.
They then differed regarding an increase which people do not tolerate in its like: is the purchase valid without any indemnity, suspended upon the principal's ratification, or void? The Hanafis said: if he buys with an increase which people do not tolerate in its like, the purchase binds the agent; for the small increase is unavoidable, while there is no necessity in the large one, since it can be guarded against. The criterion between the small and the large: every increase which falls under the appraisal of the appraisers (muqawwimin) is small, and what does not fall under it is large; for what falls under their appraisal is not established as an increase, while what does not is an established increase.
Muhammad quantified, in al-Jami', the small increase tolerated in its like at half a tenth: if it is half a tenth or less, it belongs to what is tolerated; if more, it is not tolerated. Al-Jassas said: this figure of Muhammad is not a fixed measure for all things; it varies according to the commodities: among them are some whose lesser share is already a prejudice, and others where more is not (Bada'i' al-Sana'i', 6/29; al-Hidaya, 3/145-146; al-Ikhtiyar, 2/194; al-Lubab, 2/564; al-Jawhara al-Nayyira, 3/500).
The Malikis said: if he buys beyond the market price, the principal is given the choice between accepting, in which case his act is ratified, or rejecting, and the goods bind the agent (Sharh al-Kabir with Hashiyat al-Dasuqi, 5/60-61; al-Taj wa-l-Iklil, 4/202; Mawahib al-Jalil, 7/147-148; Tahrir al-Mukhtasar, 4/282, 285; Sharh Mukhtasar Khalil, 6/73; Hashiyat al-Sawi, 8/75-77). The Shafi'is and the Hanbalis said: if he sells beyond the market price to the point that people do not tolerate its like, the purchase is not valid; for he is prohibited from harming the principal and commanded to give him sincere counsel: the increase upon the market price in buying is a harm and an abandonment of counsel; the agent's status is then that of one who was not authorized to sell and buy (al-Muhadhdhab, 1/354; al-Bayan, 6/433-435; al-Mughni, 5/78; al-Kafi, 2/246).
The jurists asked whether the agent of an absolute purchase may buy from himself. The majority of the jurists, the Hanafis in the madhhab, the Malikis according to the widespread view, the Shafi'is in the madhhab and the Hanbalis, hold that this is not permitted to him; for a single person, at one and the same time, would be offeror and acceptor, claimant and respondent; and he would be suspected in buying from himself.
They then discussed the case where the principal permits him to buy from himself or fixes the price for him. The Hanafis said: it is not permitted to a man mandated with an absolute purchase to buy it from himself, even if the principal permits him or says to him "buy it from whom you wish"; this is not permitted to him even if the principal declares it explicitly. A view permits it if the principal authorizes him. Al-Kasani said: the agent of purchase does not own buying from himself; for in buying the rights revert to the agent, which leads to circularity: a single person offeror and acceptor, claimant and respondent at one and the same time; and he is suspected in buying from himself. If the principal orders him to do so, it is not valid, for what we have mentioned (Bada'i' al-Sana'i', 6/31; Mukhtasar Ikhtilaf al-'Ulama' of al-Tahawi, 4/72; al-Jawhara al-Nayyira, 3/498-499; al-Bahr al-Ra'iq, 7/167; Hashiyat Ibn Abidin, 5/522-523; al-Fatawa al-Hindiyya, 2/589).
The Malikis said: the agent of purchase may not buy from himself even if the price is named to him; if he does, the principal chooses between rejection and ratification, unless the principal permits him to buy from himself, in which case it is permitted. Contrary to the widespread view of the Malikis, it is said that he may sell of himself (al-Kafi, 1/396; al-Bayan wa-l-Tahsil, 8/142; Sharh al-Kabir with Hashiyat al-Dasuqi, 5/68; Sharh Mukhtasar Khalil, 6/77; Tahrir al-Mukhtasar, 4/290; al-Taj wa-l-Iklil, 4/209; al-Fawa'ih al-Dawani, 2/220; Hashiyat al-Sawi, 8/83).
The Shafi'is said: the agent of an absolute purchase does not buy from himself, even if the principal permits him, according to the soundest view of the madhhab; for the two purposes, faithfully acquitting himself and seeking the principal's interest, contradict one another. Ibn Surayj said: it is valid if he is authorized. Likewise, if the principal fixed the price for him and forbade him any increase, it is not permitted according to the soundest view; for the principle is the impossibility of uniting the offeror and the acceptor in a single person, and the cause is not suspicion, but the lack of an orderly offer and acceptance proceeding from a single person. Ibn al-Rifa'a said: it ought to be permitted, there being no suspicion; and if he were mandated a gift or a debt from himself, it would not be valid for that.
Al-Mawardi said: if the principal allows his agent to sell upon himself or to buy from himself, the view of al-Shafi'i is that it is not permitted, because of the contradiction of the intended aim and the incompatibility of the two purposes; for the contract of mandate has made obligatory the seeking of the principal's interest, and when he is himself the buyer, he turns to his own interest. Ibn Surayj said: that is permitted, as it is permitted to give one's wife the power to divorce herself, or to one's slave girl the power to free herself.
This comparison is wrong, by virtue of three differences between sale and divorce or manumission:
If the principal mandates one man to sell his slave and mandates another to buy that slave mandated for sale, it is not permitted, because of the contradiction of the intended aim in the two contracts; the agent may, however, stand upon one of the two mandates: if he wishes to stand upon the first, sale or purchase, it is permitted. If he wishes to stand upon the second, there are two views: either it is not valid, for the condition of the first prevents the validity of the second; or it is permitted, for the mandate is not binding, so that the first has no effect and is voided by the acceptance of the second (al-Hawi al-Kabir, 6/536-538; Rawdat al-Talibin, 3/502-503; al-Bayan, 6/420; Mughni al-Muhtaj, 3/205; Nihayat al-Muhtaj, 5/40; al-Najm al-Wahhaj, 5/45; Kanz al-Raghibin, 2/856; al-Dibaj, 2/313).
The Hanbalis hold in the madhhab that the agent's buying from himself is not valid, even if he buys for his principal what he was mandated to buy; for it contravenes custom in that, as if the principal explicitly said to him "sell it or buy it from someone other than yourself"; suspicion is attached to him thereby. Unless the principal permits him, allowing him the purchase from himself: it is then permitted, the suspicion having vanished, like the woman mandated to divorce herself; the cause of the prohibition being suspicion, and the explicit permission removing it (al-Mughni, 5/69; al-Kafi, 2/252-253; Sharh al-Kabir, 5/221; al-Mubdi', 4/367; al-Insaf, 5/375; Kashshaf al-Qina', 3/552-553; Sharh Muntaha al-Iradat, 3/521).
Ibn Qudama answered the objection that the two purposes contradict one another in sale and purchase: if the principal fixed the price and the agent bought at it, the purpose of seeking the interest has vanished, for nothing more is sought than what is obtained; and if the price was not fixed, the sale is governed by the market price, as if a stranger had sold (al-Mughni, 5/69; al-Kafi, 2/252-253; Sharh al-Kabir, 5/221; al-Mubdi', 4/367; al-Insaf, 5/375; Kashshaf al-Qina', 3/552-553; Sharh Muntaha al-Iradat, 3/521).
The jurists examined whether the agent of an absolute purchase may buy from those whose testimony in their favor is rejected, such as his children, his wife or his parents; a detail is required in all of that.
a. The agent's purchase from his minor children. The jurists examined whether the agent of an absolute purchase may buy from his minor children, or from those under interdiction for insanity or prodigality. Abu Hanifa, the Malikis according to the widespread view, the Shafi'is and the Hanbalis hold that this is not permitted to him; for he is suspected in his own interest and inclined to neglect seeking their interest in the price, as he is in his own case: that is why his testimony in their favor is not accepted. The places of suspicion are excluded from the mandate, and the agent is suspected in contracting with such persons: each of the minor, the interdicted and the agent habitually benefits from the wealth of the other two, so that the wealth of each is like the wealth of the agent himself: the agent thus becomes a buyer from himself.
Even if the principal permits him to buy from such persons, saying to him "buy from whom you wish", it is not permitted according to the Hanafis in the sound view and the Shafi'is in the madhhab; for the two purposes, faithful acquittal and seeking interest, contradict one another; likewise if the principal fixed the price for him and forbade him the increase, according to the Shafi'is; for the principle is the impossibility of uniting the offeror and the acceptor, even if the suspicion vanishes. The Hanbalis said: it is valid if the principal permits, for the suspicion vanishes (Bada'i' al-Sana'i', 6/31; al-Jawhara al-Nayyira, 3/497-499; al-Bahr al-Ra'iq, 7/167; Hashiyat Ibn Abidin, 5/522-523; al-Fatawa al-Hindiyya, 2/589; Sharh al-Kabir with Hashiyat al-Dasuqi, 5/68; Sharh Mukhtasar Khalil, 6/77; Tahrir al-Mukhtasar, 4/290; al-Taj wa-l-Iklil, 4/209; al-Fawa'ih al-Dawani, 2/220; Hashiyat al-Sawi, 8/83; al-Hawi al-Kabir, 6/536-538; Rawdat al-Talibin, 3/502-503; al-Bayan, 6/419; Mughni al-Muhtaj, 3/205; Nihayat al-Muhtaj, 5/40; al-Najm al-Wahhaj, 5/45; Kanz al-Raghibin, 2/856; al-Dibaj, 2/313; al-Mughni, 5/69; al-Kafi, 2/252-253; Sharh al-Kabir, 5/221; al-Mubdi', 4/367; al-Insaf, 5/375; Kashshaf al-Qina', 3/552; Sharh Muntaha al-Iradat, 3/521).
The two companions among the Hanafis, Abu Yusuf and Muhammad, as well as the Malikis contrary to the widespread view, and Ahmad in one narration, hold that the agent of an absolute purchase may buy from his minor child or from the one interdicted for prodigality or insanity, at the market price; for the mandate is absolute, that is, free of restriction to one person rather than another, and the absolute is applied in its absoluteness: the required condition is present and the obstacle absent. The obstacle is suspicion, and there is no suspicion here: it would be either personal favoritism or financial interest, and nothing of either kind exists.
As for personal favoritism: the properties are distinct, since the son may have relations with his own slave girl, even were his property not distinct from his father's, it would then be shared and he would have the right to relations with her, while he is not permitted relations with his father's slave girl: the benefits are therefore severed, the distinction of properties entailing the severance of benefits. As for financial interest: the appraisal at the market price remedies it. The condition being present and the obstacle absent, permission follows, as in buying from a stranger. It is also said: if there is a slight prejudice, it is permitted likewise according to Abu Yusuf and Muhammad (Bada'i' al-Sana'i', 6/31; al-'Inaya, 11/162-163; al-Jawhara al-Nayyira, 3/498-499; al-Bahr al-Ra'iq, 7/166-167; Majma' al-Damanat, 1/563; al-Lubab, 1/564; Hashiyat Ibn Abidin, 7/330; al-Fatawa al-Hindiyya, 2/589; Tahrir al-Mukhtasar, 4/290; al-Taj wa-l-Iklil, 4/209; al-Mughni, 5/69; al-Kafi, 2/252-253; Sharh al-Kabir, 5/221; al-Mubdi', 4/368; al-Insaf, 5/377; Kashshaf al-Qina', 3/552-553; Sharh Muntaha al-Iradat, 3/521).
The jurists examined whether the agent of an absolute purchase may buy from his adult children. Abu Hanifa, the Shafi'is contrary to the soundest view, and the Hanbalis in the madhhab hold that the agent of an absolute purchase may not buy from his grown son; for the agent is a depositary of trust: if he buys from his children, suspicion attaches to him; and each of the two sides, the agent and his children, habitually benefits from the other's wealth, so that the wealth of each side is like the agent's: he becomes a buyer from himself; the same applies to hire and money exchange (sarf).
Unless the principal permits him to buy from them or says to him "buy from whom you wish": buying from them is then permitted to him. The two companions among the Hanafis, Abu Yusuf and Muhammad, the Malikis, the Shafi'is according to the soundest view, and the Hanbalis in one narration hold that he may buy from his adult children at the market price, without favoritism; for the mandate is absolute of any restriction to one person rather than another, the absolute is applied in its absoluteness, the condition is present and the obstacle absent, suspicion being lacking: it would be personal favoritism or financial interest, and nothing of either kind exists.
As for personal favoritism: the properties are distinct, since the son may have relations with his own slave girl when he is not permitted relations with his father's slave girl, and the benefits are severed. As for financial interest: the appraisal at the market price remedies it, and the purchase is like buying from a stranger. He moreover bought with the price with which a purchase from a stranger would have been valid: there is thus no suspicion, and it is as if he had bought from his friend (Bada'i' al-Sana'i', 6/28, 31; al-'Inaya, 11/162-163; al-Jawhara al-Nayyira, 3/498-499; al-Bahr al-Ra'iq, 7/166-167; Mukhtasar al-Wiqaya, 2/172; Majma' al-Damanat, 1/563; al-Lubab, 1/564; Hashiyat Ibn Abidin, 7/330; al-Fatawa al-Hindiyya, 2/589; Sharh al-Kabir with Hashiyat al-Dasuqi, 5/68; al-Taj wa-l-Iklil, 4/209; Rawdat al-Talibin, 3/502-503; al-Bayan, 6/419; Mughni al-Muhtaj, 3/205; Nihayat al-Muhtaj, 5/40; al-Najm al-Wahhaj, 5/45; Kanz al-Raghibin, 2/856; al-Dibaj, 2/313; al-Mughni, 5/69; al-Kafi, 2/252-253; Sharh al-Kabir, 5/221; al-Mubdi', 4/368; al-Insaf, 5/377; Kashshaf al-Qina', 3/552; Sharh Muntaha al-Iradat, 3/521).
The jurists examined whether, in the absolute mandate, the agent may buy from his parents. Abu Hanifa, the Shafi'is contrary to the soundest view, and the Hanbalis in the madhhab hold that the agent may not buy from his parents what he was mandated to buy; for the agent is a depositary of trust: if he buys from his parents, suspicion attaches to him, for he is suspected in their interest and inclined to neglect seeking their interest in the price, as he is in his own case; that is the very reason his testimony in their favor is not accepted. It is like the imam who would delegate to him the judiciary over whom he wills: he may not delegate it to his ascendants or descendants; and the benefits between him and his parents are continuous.
Unless the principal permits buying from them or says "buy from whom you wish": he may then buy from them. The two companions among the Hanafis, Abu Yusuf and Muhammad (and it is a narration from Abu Hanifa), the Shafi'is according to the soundest view, and the Hanbalis in one narration (which is the import of the Maliki madhhab) hold that he may buy from his parents at the market price; for the mandate is absolute, the absolute is applied in its absoluteness, the condition is present and the obstacle absent, suspicion being lacking for the same reasons as before: distinction of properties and appraisal at the market price, the purchase being like buying from a stranger (Bada'i' al-Sana'i', 6/28, 31; al-'Inaya, 11/162-163; al-Jawhara al-Nayyira, 3/498-499; al-Bahr al-Ra'iq, 7/166-167; Mukhtasar al-Wiqaya, 2/172; Majma' al-Damanat, 1/563; al-Lubab, 1/564; Hashiyat Ibn Abidin, 7/330; al-Fatawa al-Hindiyya, 2/589; Sharh al-Kabir with Hashiyat al-Dasuqi, 5/68; al-Taj wa-l-Iklil, 4/209; Rawdat al-Talibin, 3/502-503; al-Bayan, 6/419; Mughni al-Muhtaj, 3/205; Nihayat al-Muhtaj, 5/40; al-Najm al-Wahhaj, 5/45; Kanz al-Raghibin, 2/856; al-Dibaj, 2/313; al-Mughni, 5/69; al-Kafi, 2/252-253; Sharh al-Kabir, 5/221; al-Mubdi', 4/368; al-Insaf, 5/377; Kashshaf al-Qina', 3/552; Sharh Muntaha al-Iradat, 3/521).
The Malikis said: if he shows favoritism by buying from them beyond the market price, he is prevented, the sale stands, and the agent must indemnify what he favored with (Bada'i' al-Sana'i', 6/31; al-'Inaya, 11/162-163; al-Jawhara al-Nayyira, 3/498-499; al-Bahr al-Ra'iq, 7/166-167; Mukhtasar al-Wiqaya, 2/172; Majma' al-Damanat, 1/563; al-Lubab, 1/564; Hashiyat Ibn Abidin, 7/330; al-Fatawa al-Hindiyya, 2/589; Sharh al-Kabir with Hashiyat al-Dasuqi, 5/68; al-Taj wa-l-Iklil, 4/209; Rawdat al-Talibin, 3/502-503; al-Bayan, 6/419; Mughni al-Muhtaj, 3/205; Nihayat al-Muhtaj, 5/40; al-Najm al-Wahhaj, 5/45; Kanz al-Raghibin, 2/856; al-Dibaj, 2/313; al-Mughni, 5/69; al-Kafi, 2/252-253; Sharh al-Kabir, 5/221; al-Mubdi', 4/368; al-Insaf, 5/377; Kashshaf al-Qina', 3/552; Sharh Muntaha al-Iradat, 3/521).
The generality of the jurists, Hanafis, Malikis, Shafi'is and Hanbalis, hold that the agent of an absolute sale may sell to his relatives, such as his brother, his paternal uncle and the rest of his kin; for the purpose of the sale is obtaining the price, not the identity of the buyers; the mandate is absolute and suspicion absent, since the properties are distinct and the benefits severed: selling to them is thus like selling to a stranger. Al-Mirdawi said: wherever suspicion arises, the purchase is not valid (al-Insaf, 5/378, see the previous sources).
The jurists asked, regarding the agent mandated to buy something who bought it defective: does the purchase bind the agent, or the principal, or is it suspended upon the principal's approval, so that it stands if he approves and is rejected otherwise?
Abu Hanifa holds that the agent of an absolute purchase, without restriction, who buys defective: the purchase binds the principal. The majority of the jurists, the two companions among the Hanafis, Abu Yusuf and Muhammad, the Malikis, the Shafi'is and the Hanbalis, hold that it binds the agent and not the principal, unless the latter approves the defective purchase, with a detail among them. Al-Kasani said: if the mandate of purchase is absolute, the absoluteness is applied to it as much as possible, unless an indication of restriction arises from custom or otherwise, in which case he abides by it. On this basis, if a man mandates another to buy a slave girl, specifying her type and her price up to the validity of the mandate, and he buys a slave girl with a hand or foot amputated by deformity, or one-eyed, the purchase binds the principal; and if he buys a slave girl with both hands or both feet amputated, or blind, she binds the principal according to Abu Hanifa and binds the agent according to the two companions.
The argument of the two companions is that the slave girl is bought for service, by custom and usage, and the purpose of service is not achieved when the kind of benefit has vanished: the agent is therefore bound by the condition of soundness, indicated by custom; hence it is not permitted to manumit her for expiation, even though the text of manumission is absolute, soundness being established there by indication. The argument of Abu Hanifa is that the name "slave girl" employed absolutely applies to her as to the one of sound limbs: the absolute may only be restricted by an indication, and it exists. As for expiation, the command concerns the manumission of a raqaba, the name of an entity composed of these parts: if what founds a kind of its benefits vanishes, the entity falls and the absolute name no longer covers it; the name of slave girl, however, does not designate the entity in view of its parts, so that her deficiency does not undermine that name, unlike the name of raqaba; to the point that if the mandate were to buy a raqaba, buying a defective one would not be valid, according to the rule of expiation (Bada'i' al-Sana'i', 6/29-30).
The Malikis said: the agent of purchase who buys defective what does not befit the principal, knowing the defect which legally constitutes a ground of rejection, or when the defect is apparent so as not to escape the notice of one who does not scrutinize: the purchase binds him, unless his principal approves what his agent bought; it is then for him. Unless the defect is so slight that it is habitually forgiven in view of what was bought for him, the goods being a good bargain: the purchase then binds the principal, like a mount with a docked tail bought for a person of no standing, which is cheap. If he buys a mount with a docked tail for a person of standing, it does not bind, even at a low price; for the slight defect is what is habitually forgiven in view of what was bought and for whom.
Malik said: if you order him to buy goods and he buys them defective knowingly: if the defect is slight, of the kind habitually forgiven, and the purchase was an opportunity seized, it binds you; if the defect is ruinous, it does not bind you unless you wish, and it is binding upon the mandated one (al-Jami' li-masa'il al-Mudawwana, 13/952; Sharh al-Kabir with Hashiyat al-Dasuqi, 5/63-64; al-Taj wa-l-Iklil, 4/204; Sharh al-Kharshi, 6/74). Ibn Arafa said: consider the case of a hidden defect, forgiven in view of the generality of people, but whose forgiveness the principal's condition does not require: does it bind the principal or not? The most apparent is that one distinguishes according to the two views, as at the beginning of the book of usurpation regarding the effect of enmity when it is light relative to people in general and not light relative to the victim: is he judged by lightness or gravity?
Ibn al-Hajib expressed it thus: "if he knew the defect, it is for him, and there is no return except in the slight." Ibn Arafa comments: the exception "except in the slight" implies, by the letter of what precedes, the impossibility of return; it is only correct when referred to an ellipsis: "and it does not bind the principal". Such an ellipsis is not fitting in the exposition of scholarly questions when an easy formulation was possible: "if he knew the defect, it binds the principal, like him, except in the slight".
It is also said: if the principal specified it, no return by the mandated one of its defect, even if he did not specify it. Ashhab said: the principal may take it after returning it to the mandated one, and if it dies, he is liable for it. Ibn al-Qasim said he has no right to return it; for the responsibility is upon him rather than the principal; there is return only in case of violation of the description, having been able to return. This concerns the specific agent; for the fully delegated one, return and remission are permitted to him by ijtihad, without favoritism.
Abu 'Imran commented: according to Ashhab, if he returns it, he is liable for it; according to Ibn al-Qasim, if he does not return it, he is liable for it; the way to escape liability is to refer the matter to the judge: whatever he rules, the dispute falls away, and there is no longer liability. Ibn al-Hajib transmitted: return is permitted in the unspecified case; and the two views contradict his text. Al-Mazari said: this is the Shafi'is' transmission of their madhhab, and the correct transmission is that of Ibn Shas.
Regarding return for defect: whoever buys goods for a man and informs the seller: the price is upon the agent, even if deferred, until he says deliberately to the seller: "it is so-and-so who pays you, not I": the price is then upon the principal. Al-Saqalli transmitted from Muhammad: even without this declaration; and Muhammad said: if he said "I bought it for so-and-so", the mandated one sells, not the principal, unless the principal ratifies; then either of the two chooses; unless the principal claims he handed the price to the mandated one: he swears, is cleared, and the mandated one is pursued; Muhammad did not specify whether the principal received the goods.
Asbagh transmitted in al-'Utbiyya from Ibn al-Qasim, regarding the principal's receipt of the goods and the payment of the price: if the mandated one paid the seller, the word is the principal's with his oath; if he did not pay, the mandated one swears he did not receive, and it is taken from the principal. Sahnun said: if he witnessed at the moment of payment that he paid from his own wealth, the principal's claim that he paid him is not accepted. A jurist of Qayrawan said: Muhammad's book is not contradicted by that; for he mentioned that the price was not paid by the mandated one to the seller and gave the word to the principal, because the goods are not like a pledge in the mandated one's hand.
There is another view: it would seem that, if he did not deliver the goods, the word is his according to Ashhab's view, for he deems it like a pledge in his hand, since he may retain it until the price is paid; according to Ibn al-Qasim, he may not retain it, and the word is the principal's. If he delivered the goods to the principal, the word is the principal's; for nothing remains in the mandated one's hand as an equivalent of what he paid and what he is compelled to pay. In al-'Utbiyya, the word is given to the mandated one after delivery of the goods, because he did not pay the seller: he took the seller's place, the price not falling from the buyer by mere receipt of the goods from him; as long as he has not received the price, the word is the mandated one's (al-Mukhtasar al-fiqhi, 10/309-311).
The Shafi'is said: if he is mandated to buy a described or specified thing, he may not buy it defective when he knows its defect; for he owes his principal sincere counsel, unless the principal's purpose is trade: the purchase is then valid, like the mudarib, the trade partner and the slave authorized to trade; for the purpose is profit, and profit may be greater in the defective, especially the light defect.
If he buys the defective on credit while it is worth, despite its defect, what he paid, the purchase falls to the principal if the buyer did not know the defect; for no harm befalls the owner from his choice: the defect can be remedied by return, and the agent has neither negligence nor contravention, whether in fact or in the letter of the mandate; for he is bound to buy what he believes sound, not what is sound in itself. But if the principal says "buy me a sound slave", the defective purchase, known or unknown, does not fall to the principal: he was not authorized for it.
The words "on credit" might suggest that, if he buys with the principal's own money, the purchase does not fall to him: it is not so, the purchase falls to him too; but the agent has no return then according to the soundest view, for the contract can in no case be reversed in his favor, and he suffers no harm, unlike buying on credit. If he knows the defect, the purchase does not fall to the principal according to the soundest view, even if he equaled the price; for he was not authorized for it: the absoluteness requires the sound. The second view: the purchase falls to him, the formula being absolute and without financial deficiency. The third: if it is for trade, it falls to him; if for personal possession, no, and the imam preferred this view. The fourth: if the defect prevents substitution in expiation and the item is a slave, it does not fall; otherwise it falls. The imam said: the holder of this last view excepts disbelief, which prevents substitution in expiation, while permitting the agent to buy it.
If he did not equal the price, the purchase does not fall to the principal if he knew the defect; for he was negligent and exposed him to loss knowingly: he is thus in contravention; the seller may flee, preventing the principal from returning it, and he suffers harm. If he did not know it, the purchase falls to the principal according to the soundest view, as if he had bought it for himself in ignorance of the defect. The other view, which the imam authenticated, is that the purchase does not fall: gross prejudice alone already prevents imputation to the principal when the thing is sound, all the more with a defect; to which the companions answer that gross prejudice does not establish the option, whereas here the option is established by the defect: no harm therefore.
When the purchase falls to the principal, return is permitted to the agent as well as to the principal. To the principal in the state of ignorance, without dispute: he is the owner and the harm befalls him. To the agent: he is his deputy; if we did not permit him that, the owner might refuse, the immediate return becoming impossible and the harm befalling the agent. According to Ibn Surayj, he has the return only with his principal's permission. The defect occurring before receipt follows the rule of the concurrent defect regarding the permissibility of return.
There is no difference, in all that precedes, between the mandate to buy a specified or described thing: the apparent is that he wants it under the condition of soundness. If the principal approves the defect, the agent's option falls by consensus; the principal's option does not fall through the agent's delay, his approval or his negligence: his right remains if the agent mentioned it at the purchase, or intended it and the seller affirmed it; otherwise, the purchase falls to the agent, for he bought on credit what the principal had not authorized him for. The purchase is valid in both forms of the agent's knowledge; if he knows and buys with the principal's own money, the purchase is not valid.
If the agent wants to return for defect and the seller says to him "delay until the principal comes", he is not bound to accept; if he returns and the principal comes and approves, a new purchase is required; if he did not return before the principal's coming, the return belongs to the principal if he mentioned it, or if the seller confirmed his intention (Rawdat al-Talibin, 3/506-507; Mughni al-Muhtaj, 3/206-207; Nihayat al-Muhtaj, 5/42-43; al-Najm al-Wahhaj, 5/46-48; al-Dibaj, 2/314-315; Kanz al-Raghibin, 2/857-858; al-'Ubab, p. 690).
As for the Hanbalis, Ibn Qudama said: if he is mandated to buy described goods, he is only permitted to buy them sound; for the absoluteness of sale requires soundness, and that is why return for defect is permitted. If he buys defective knowing the defect, the purchase does not bind the principal: he bought other than what he was authorized for. If he did not know the defect, the sale is valid; for he is only bound to buy the apparently sound, being unable to guard against buying a defective one whose defect he does not know: he stands in the principal's place in the purchase, and the principal also has the return, for the ownership belongs to him. If the principal comes before the agent's return and approves the defect, the agent no longer has the return; unlike the mudarib, who has the return even if the owner of the wealth approves, for he holds a right which does not fall by another's approval.
If the principal is absent, the agent wants to return and the seller says to him "wait until the principal comes, he may approve the defect", he is not bound to accept: he cannot be sure of the loss of the return through the seller's flight and the loss of the price through destruction; if he delayed on this basis and the principal does not approve, his return does not fall; and if one says the return is immediate, it is because he delayed with the seller's permission. If the seller says "your principal knew the defect and approved it", his word is not accepted without proof; lacking proof, the agent is not compelled to swear, unless he claims that he knew: he then swears the negation of knowledge, and al-Shafi'i said so. According to Abu Hanifa, he is not subject to the oath: were he to swear, he would be deputized in the oath, which is not valid, for there is no deputyship here; he swears the negation of his own knowledge, in which he deputizes for no one.
If the agent returned, the principal came and said "the defect reached me and I approved it", and the seller confirms it or proof establishes it, the return did not take place in its place: the principal may claim it and the seller return it to him; for his approval removed the agent from the return, as evidenced by the fact that, had he known, he would not have had the return, unless one says the agent is not removed until knowing the removal. If the agent approved the defective or retained it in a manner severing the return, then the principal comes wanting to return: he has that right if the seller confirms that the purchase is for him, or proof establishes it; if the seller denies it and he has no proof, the seller makes him swear that he does not know the purchase is for him: he then has no return; the apparent being that whoever buys something is its owner, the purchase binds the agent, with the penalty of the price upon him: all of this is al-Shafi'i's madhhab.
Abu Hanifa said: the agent has the right to buy the defective; for the mandate of sale employed absolutely includes the defective in its absoluteness, and the principal made him a depositary of trust in buying, like the mudarib. The answer: sale employed absolutely requires the sound, not the defective; so does the mandate of purchase. It differs from the mudaraba in that the purpose there is profit, obtained from the defective as from the sound, whereas the purpose of the mandate is buying what fulfills the need: the defect may prevent fulfilling the need and deprive its possession. Abu Hanifa moreover contradicted his own principle: regarding the word of Allah:
"...then the freeing of a slave..."
Surah an-Nisa, 92
he said that a one-eyed slave girl or one defective with a defect harming work is not valid there, while here he permits the agent to buy a blind man, a paralytic, or one with hands and feet amputated (al-Mughni, 5/80; Kashshaf al-Qina', 3/557).
When the principal restricts the agent with specific restrictions, it is incumbent upon him to abide by them, and he may not exceed them in executing the mandate, by the agreement of the scholars, as a general rule, except by contravening toward the better, as if told "buy for ten" and he buys for less. The Hanafis said: the agent of purchase is either absolute or restricted; if restricted, the restriction is observed by consensus, whether it concerns the buyer or the price, to the point that, if he contravenes, the purchase binds him, except by contravening toward the better: the purchase then binds the principal.
Example of the first case: "buy me a slave girl whom I shall marry, employ, or take as mother of my children", and he buys a Magian slave girl, or a milk-sister, or an apostate, or a married woman: the purchase is not enforced upon the principal but upon the agent. Likewise "buy me a slave girl to serve me" and he buys one with both hands or both feet amputated, or blind; for in everything restricted, the restriction is taken into account, except a restriction whose regard is vain, and the regard of this kind is beneficial. Likewise "buy me a Turkish slave girl" and he buys an Abyssinian slave girl: the purchase does not bind the principal but binds the agent, for what we have mentioned.
Example of the second case: "buy me a slave girl for one thousand dirhams" and he buys one for more than one thousand: the purchase binds the agent, not the principal; for he contravened the principal's order and becomes a buyer for himself. If the principal says "buy me a slave girl for one thousand dirhams or one hundred dinars" and he buys with other than dirhams and dinars, the purchase does not bind the principal by consensus: the genus differs, and he is in contravention. If the principal says "buy me this slave girl for one hundred dinars" and he buys her for one thousand dirhams, her value being one hundred dinars: al-Karkhi reported that the widespread view of Abu Hanifa, Abu Yusuf and Muhammad is that it does not bind the principal; for dirhams and dinars are two different genera in reality, and the restriction to one of the two is effective.
Al-Hasan reported from Abu Hanifa that the purchase binds the principal, as if he deemed the two one genus in the mandate, like their being one genus in pre-emption: the pre-emptor informed that the house was sold for dinars, who waived his pre-emption, then it appeared that it was sold for dirhams at a value equivalent to the dinars: his waiver is valid. Likewise here: if he buys a slave girl for one thousand dirhams, and her like sells for one thousand, more, or less, within the prejudice people tolerate, the purchase binds the principal; if the deficiency is beyond what people tolerate, it binds the agent, for the agent's purchase is a known thing.
If he buys a slave girl for eight hundred dirhams while her like sells for one thousand, the purchase binds the principal: contravention toward the better is not contravention in meaning. Likewise if he is mandated to buy a slave girl for one thousand deferred and buys one for one thousand immediate, the purchase binds the agent: he violated the principal's restriction. If the order was for one thousand immediate and he buys for one thousand deferred, the purchase binds the principal: he contravened in form but matched in meaning, and regard is given to meaning, not form. If he is mandated to buy while stipulating the option for the principal and buys without an option, the purchase binds the agent.
The principle is that the agent of purchase, upon contravention, becomes a buyer for himself, whereas the agent of sale, upon contravention, remains suspended upon the principal's ratification. The difference: the agent of purchase is suspected, for he owns buying for himself, so that enforcement upon him is possible; to the point that were he an interdicted minor or an interdicted slave, the purchase is not enforced upon him but remains suspended upon the principal's ratification, for they do not own buying for themselves; likewise if he is an apostate, or was mandated to buy a specified slave and bought only half of him: enforcement upon him being impossible, suspension is considered. The meaning of suspicion is not attainable in the agent of sale: hence suspension upon ratification. If he is mandated to buy a slave and buys her with a specific item of the principal's property, the purchase is suspended upon ratification: he sold the principal's very property, and sale awaits his ratification (Bada'i' al-Sana'i', 6/29).
The Malikis said: the agent of purchase who contravenes what he was mandated for, by buying for more than the price the principal named: the principal chooses between ratifying his act or rejecting it, unless the agent assumes the excess, in which case the purchase binds the principal. Except by contravening toward the better: the purchase binds the principal, as when he buys for less than what was ordered, "buy for ten" and he buys for eight: his principal has no option; for this is among what is desirable, and it is not every contravention that entails an option, but the one attaching to a valid purpose (Sharh al-Kabir with Hashiyat al-Dasuqi, 5/64-65; al-Taj wa-l-Iklil, 4/205; Sharh Mukhtasar Khalil, 6/75; Tahrir al-Mukhtasar, 4/287-288).
The Shafi'is said: in the restricted mandate, the agent must observe the principal's restriction and its implied meaning according to wording or custom. If the principal specifies buying from a specific person, like Zayd, or at a specific time, like such a day or month, or in a specific place, it is incumbent upon the agent to abide by that, except by contravening toward the better: "buy for one hundred" and he buys for less, it is valid; unless the principal explicitly forbade paying less: the purchase is then precluded, for the wording annulled the right of custom. When the agent contravenes and buys with the principal's own money, his disposition is void (al-Muhadhdhab, 1/350, 352; al-Bayan, 6/436; Rawdat al-Talibin, 3/509-510; Mughni al-Muhtaj, 3/209-211; Nihayat al-Muhtaj, 5/47-48; al-Najm al-Wahhaj, 5/52-53; Kanz al-Raghibin, 2/861; al-Dibaj, 2/317).
The Hanbalis said: the agent of a restricted sale may not contravene his principal except toward the better, and owns no disposition but what his principal's permission requires, by wording or by custom; for his disposition rests upon the permission, which is known sometimes by wording and sometimes by custom. If the principal mandates a man to dispose within a restricted time, he owns no disposition before or after it, for his permission covered it neither absolutely nor by custom: disposition may indeed be preferred at the time of need. That is why, when Allah, the Most High, fixed a time for His worship, it is not permitted to advance or delay it, according to the detail to come. If he contravenes toward the better by buying below the fixed price, the purchase is valid; unless the principal forbade him: "buy it for one hundred and do not buy it for less", and he contravenes: it is not permitted and the purchase is not valid, in violation of his explicit wording, which prevails over the indication of custom (al-Mughni, 5/76; Kashshaf al-Qina', 3/559).
We mentioned above, in summary, the jurists' statements regarding the agent of a restricted purchase: he may not contravene his principal in what he was mandated for, except toward the better. The jurists mentioned that the agent of purchase may contravene in several matters, including the following. First contravention: in the price. The principal fixes the price for the agent and the agent contravenes: either buying for more than the fixed price, or toward the better by buying for less.
First case: he contravenes by buying for more than what the principal fixed for him. The jurists asked: is the purchase valid with the agent indemnifying the excess, suspended upon the principal's ratification, or void? The Hanbalis in the madhhab, and Abu al-'Abbas among the Shafi'is, hold that the purchase is valid and the agent indemnifies the principal for the deficiency; for it combines the buyer's share, who keeps his acquisition without rescission, and the seller's, whence the obligation of indemnity; the agent's share is not taken into account, for he was negligent (al-Mughni, 5/78-80; al-Furu', 4/83; al-Insaf, 5/381; Kashshaf al-Qina', 3/556; al-Bayan, 6/438).
The Hanafis said: if the principal says "buy me a slave girl for one thousand dirhams" and he buys one for more than one thousand, the purchase binds the agent, not the principal: he contravened the principal's order and becomes a buyer for himself. The principle is that the agent of purchase who contravenes becomes a buyer for himself, whereas the agent of sale who contravenes remains suspended upon the principal's ratification, the agent of purchase being suspected since he owns buying for himself, making enforcement upon him possible; the meaning of suspicion being not attainable in the agent of sale, suspension upon ratification remains possible. Unless he buys her with a specific item of the principal's property: the purchase is then suspended upon ratification, for he sold the principal's very property, and sale awaits his ratification (Bada'i' al-Sana'i', 6/29).
The Malikis said: the agent of purchase who contravenes what he was mandated for, by buying for more than what the principal named: the principal chooses between ratifying his act or rejecting it, unless the agent assumes the excess, in which case the purchase binds the principal (Sharh al-Kabir with Hashiyat al-Dasuqi, 5/64-65; al-Taj wa-l-Iklil, 4/205; Sharh Mukhtasar Khalil, 6/75; Tahrir al-Mukhtasar, 4/287-288).
The Malikis said: the agent of purchase who contravenes by buying for more than the named price: the principal chooses between ratifying and rejecting, unless the agent assumes the excess, in which case the purchase binds the principal. The Shafi'is said: if the principal says "buy for one hundred", he may not buy for more; if he contravenes and buys with the principal's money for more than one hundred, his disposition is void: he exceeded the permitted price and the purchase does not bind the principal, as if he were mandated to buy a slave absolutely and bought beyond the market price. They argue: if the principal says "sell this slave for one hundred dirhams" and he sells him for ninety dirhams, it is not valid to say the sale is valid at ninety and the agent owes the ten; if that is not valid in sale, it is not valid in purchase (al-Muhadhdhab, 1/350, 352; al-Bayan, 6/438; Rawdat al-Talibin, 3/509-510; Mughni al-Muhtaj, 3/209-211; Nihayat al-Muhtaj, 5/47-48; al-Najm al-Wahhaj, 5/52-53; Kanz al-Raghibin, 2/861; al-Dibaj, 2/317).
Second case: the agent contravenes by buying for less than what the principal fixed for him. The majority of the jurists, the Hanafis, the Malikis, the Shafi'is in the madhhab and the Hanbalis, hold that if the agent contravenes toward the better, as if told "buy this goods for one thousand" and he buys it for less than one thousand, the sale is valid and his principal has no option; for this is among what is desirable, and it is not every contravention that entails an option, but the one attaching to a valid purpose; moreover, permission is of two kinds, by wording and by custom, and by custom, whoever accepts buying goods for one thousand accepts buying them for less.
The Shafi'is and the Hanbalis except, however, the case where the principal forbade buying for less than what he fixed: if he says to the agent "buy it for one hundred and do not buy it for less" and the agent contravenes, it is not permitted and the purchase is not valid, in violation of his explicit wording, which prevails over the indication of custom (Bada'i' al-Sana'i', 6/29-30; al-Jawhara al-Nayyira, 3/499; Sharh al-Kabir with Hashiyat al-Dasuqi, 5/64-65; al-Taj wa-l-Iklil, 4/205; Sharh Mukhtasar Khalil, 6/75; Tahrir al-Mukhtasar, 4/287-288; al-Hawi al-Kabir, 6/543; al-Bayan, 6/437-438; Rawdat al-Talibin, 3/511; Mughni al-Muhtaj, 3/210, 213; Nihayat al-Muhtaj, 5/47-48; al-Najm al-Wahhaj, 5/52-53; Kanz al-Raghibin, 2/861; al-Dibaj, 2/317-319; al-Mughni, 5/76; al-Furu', 4/83; al-Insaf, 5/381; Kashshaf al-Qina', 3/559).