Islamic Fiqh > Companies and leases > Wakala (agency mandate) > When he says to him: "Buy for one hundred, and do not buy for fifty"
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Updated on 25 September 2026 at 6:57 PM
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First figure of the exception: the Shafi'is and the Hanbalis said: if he says "buy it for one hundred and do not buy it for fifty", he may buy it for one hundred, and at any price between one hundred and fifty, such as sixty; for his permission to buy at one hundred indicates by custom permission to pay less, fifty having left it by the explicit prohibition: everything above fifty remains upon the permission.
If he buys it for less than fifty, there are two views among the Shafi'is and the Hanbalis. The first, the sounder according to the Hanbalis: it is permitted; for he did not contravene the explicit prohibition, like the one who exceeds fifty; he is permitted by custom, only fifty having left by the prohibition, the rest remaining upon custom. The second: it is not permitted; for the principal forbade fifty independently, thereby indicating the prohibition of what is below the two, as the permission to buy at one hundred is permission for less; it therefore runs like his explicit prohibition, the indication of speech being like its text (al-Bayan, 6/437-438; Rawdat al-Talibin, 3/511-512; al-Mughni, 5/79; al-Furu', 4/83; al-Insaf, 5/381; Kashshaf al-Qina', 3/554).
Second contravention: the genus of the price. The principal says for example "buy me this slave for one thousand dinars" and the agent buys him for two thousand dinars, or with other than dirhams and dinars, or in another genus of price than the one fixed, such as the dollar, the lira or the guinea: is the purchase valid or not? The Hanafis, the Shafi'is and al-Qadi among the Hanbalis hold that it is not valid.
The Hanafis said: if the principal says "buy me a slave girl for one thousand dirhams or one hundred dinars" and he buys one 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-Kasani reports from al-Karkhi that the widespread view of the three imams is that it does not bind the principal, for dirhams and dinars are two different genera in reality, the restriction to one of the two being effective; al-Hasan reported from Abu Hanifa that the purchase binds the principal, the two being deemed one genus in the mandate as in pre-emption, with the example of the pre-emptor already cited (Bada'i' al-Sana'i', 6/29; al-Fatawa al-Hindiyya, 3/590).
The Shafi'is said: if the principal permits him to contract in a currency, it is not permitted to contract in another; for permission in one genus is not permission in another genus. That is why, if he permits him to buy a male slave, he may not buy a slave girl; and if he permits him to buy a donkey, he may not buy a horse (al-Muhadhdhab, 1/353; Rawdat al-Talibin, 3/514; Sharh al-Kabir, 5/227; al-Mubdi', 4/370; al-Insaf, 5/382).
The Hanbalis hold in the madhhab: if the principal says to his agent "buy it for a dinar" and he buys it for a dirham, the purchase is valid, being permitted by custom; for whoever accepts giving a dinar accepts a dirham in its place. This reasoning applies to contravention toward the better, the dinar being dearer than the dirham; if the opposite occurs, "buy it for a dirham" and he buys it for a dinar, the purchase is valid and the agent indemnifies the excess according to their madhhab (al-Mughni, 5/79; Sharh al-Kabir, 5/227; al-Mubdi', 4/370; al-Insaf, 5/382; Kashshaf al-Qina', 3/555; al-Rawd al-Murbi', 2/62; Sharh Muntaha al-Iradat, 3/522; Matalib Uli al-Nuha, 3/468).
The Malikis differed regarding the case where the principal says "sell for gold" and he sells for dirhams, or "sell for dirhams" and he sells for gold, likewise for purchase: does the transaction bind the principal or does he have the option? Two widespread views, according as gold and silver are two genera or one genus. The first: the principal chooses between ratifying and rescinding, for they are two different genera; for if dinars are entrusted to him, he borrows them and returns them as dirhams, he is not cleared by consensus; and if the capital of the mudaraba is in dinars and the worker returns it as dirhams, the owner of the wealth is not bound to accept it.
The second view: the transaction binds the principal, with no option for him; for the two are one genus by custom. Al-Lakhmi said: each of the two suffices in the other's place, unless it is known that it was for the principal's purpose: the sale is then returned if the item exists; if it has perished and the buyer is absent, the principal has the option to ratify, or to sell at the price and buy the like of what he was ordered (al-Mughni, 5/79; Sharh al-Kabir, 5/227; al-Mubdi', 4/370; al-Insaf, 5/382; Kashshaf al-Qina', 3/555; al-Rawd al-Murbi', 2/62; Sharh Muntaha al-Iradat, 3/522; Matalib Uli al-Nuha, 3/468).
If the principal mandates the agent to buy a sheep for a dinar and he buys two sheep each of which is worth less than a dinar, the purchase does not fall to the principal, according to Ibn Qudama. If each of the two is worth a dinar, or if one is worth a dinar and the other less, the purchase is valid and binds the principal: this is the widespread view of al-Shafi'i's madhhab. Abu Hanifa said: one of the two sheep falls to the principal against half a dinar, and the other to the agent; for he accepted from him only the charge of a single sheep.
Our argument is the hadith of 'Urwa ibn al-Ja'd al-Bariqi: the Prophet (peace and blessings of Allah be upon him) handed him a dinar, as reported in the following hadith:
"The Prophet (peace and blessings of Allah be upon him) gave 'Urwa ibn al-Ja'd a dinar and said to him: 'O 'Urwa, go to the livestock market and buy us a sheep.' I went to the market, bargained with its seller, and bought two sheep from him for a dinar. Then I drove them, or rather led them, and a man met me and bargained with me: I sold him a sheep for a dinar. I came with the dinar and presented myself to him with the sheep, and I said: 'O Messenger of Allah, here is your dinar and here is your sheep.' He said: 'What did you do?' I told him the story, and he said: 'O Allah, bless his right-hand transaction.'"Reported by Ahmad (19362) and al-Bayhaqi in al-Kubra (11397)
The argument is also that the agent obtained what he was authorized for, plus an excess of the same kind which benefits without harming: it therefore falls to him, as if told "sell for a dinar" and he sold for two; what he had mentioned is moreover voided by the sale. If the agent sells one of the two sheep without the principal's order, there are two views: either the sale is void, for he sold his principal's property without his order, like the sale of the two sheep; or, if the remaining sheep is worth a dinar, the sale is permitted, according to the hadith of 'Urwa ibn al-Ja'd al-Bariqi: he attained his purpose, and the excess, were it other than the sheep, would be permitted, so substitution is permitted; Ahmad's saying apparently favors the validity of the sale, for he took the hadith of 'Urwa and followed it.
If one says that selling the sheep is not permitted and he sold it, is the sale void or valid suspended upon the principal's ratification? Upon two narrations: this is a principle for everyone who disposes of another's property without his permission and for every agent who contravenes his principal: is his disposition void or valid suspended upon the owner's ratification? There are two narrations, and al-Shafi'i's view of the sale's validity has here two aspects (al-Mughni, 5/79-80).
Al-'Imrani, a Shafi'i, said: if a dinar is handed to a man who is mandated to buy a sheep for a dinar and he buys two, neither of which is worth a dinar, the purchase is not valid for the principal: he contravened the verbal and customary permission, for whoever accepts a sheep for a dinar does not accept less. If one of the two is worth a dinar and he buys them on credit, there are two views: the first, the sounder, is that ownership of both belongs to the principal, according to what was reported: the Prophet (peace and blessings of Allah be upon him) handed a dinar to 'Urwa al-Bariqi, ordering him to buy a sacrificial sheep; he bought him two, met a man to whom he sold a sheep for a dinar, and came to the Prophet with a sheep and a dinar, who said: "May Allah bless you in your transaction." Had he bought dust, he would have profited: the Prophet ratified it, which indicates permissibility; and the purchase is permitted by custom, for whoever accepts a sheep worth a dinar for a dinar accepts two sheep each worth a dinar for a dinar.
In this case, if the agent sells one of the two: there are two views: it is valid, according to the hadith of 'Urwa al-Bariqi, for he attained his purpose, as if he had bought him a sheep worth a dinar for half a dinar and brought him the sheep and half a dinar; or it is not valid, for he sold another's property without his permission, as if he had bought a sheep for a dinar and sold it for two; the hadith of 'Urwa being then interpreted as an absolute mandate. The second view is that ownership of one of the two sheep passes to the principal and of the other to the agent: its evidence, in the hadith of 'Urwa al-Bariqi, is that the Prophet (peace and blessings of Allah be upon him) ratified his sale of one of the two; had 'Urwa not owned one of the two, his sale would not have been valid; and had the Prophet owned both, 'Urwa's sale of one of them without permission would not have been valid: the principal had authorized him to buy one sheep, he owned it, and had not authorized him for the other, which he therefore did not own.
In this case, the principal has the option to take one of the two against half a dinar, claiming half a dinar from the agent, or to take both for the dinar; for if the pre-emptor may extract the buyer's ownership for the price without his choice, by reason of their sharing of ownership, all the more may the principal extract from the agent the ownership of the purchase attributed to him. If one of the two sheep is worth a dinar and the other less, there are two views reported by Ibn al-Sabbagh: the first is that the purchase is not valid for the principal as to one of them, for he had authorized him for a sheep worth a dinar and nothing else falls to him; the second is that the purchase is valid, and this is the most apparent view, the only one mentioned in al-Majmu' and al-Furu': he obtained what was authorized, plus an excess.
If one says the two belong to the principal: if he sells the one worth a dinar, his sale of it is not valid, by one view alone; for the principal's purpose is not attained; if he sells the one not worth a dinar, the sale follows the first two views. If one says one of the two belongs to the agent, he owns the one not worth a dinar with its share of the dinar, and the principal has the option to take it, as has passed. If he buys the two sheep each worth a dinar with the principal's very dinar: if one says both belong to the principal, the sale of both is valid for him and the ruling is as has passed; if one says ownership of one belongs to the agent, the sale is valid in one and void in the other, for it is not permitted that a purchase with another's very money be valid for him (al-Bayan, 6/441-443; al-Tanbih, p. 109; Sharh al-Kabir of al-Rafi'i, 5/241).
The jurists asked: if the principal mandates the agent to buy specified goods and the agent buys them for himself, does the purchase fall upon him or upon the principal? Several views. The first view, that of the Hanafis: they distinguish according to whether he buys it for himself in the principal's presence or absence, and according to whether he buys it in another genus of price or contrary to the named price.
They said: if he is mandated to buy a specified thing and buys it for himself in the principal's absence, the purchase does not fall upon the agent but upon the principal; for the agent may not remove himself except in the principal's presence; the principal relied upon him for the purchase, and he becomes like one who deceived him by accepting the mandate in order to buy for himself, which is not permitted; to the point that if he bought it for himself intentionally or verbally, declaring "I bought it for myself", the purchase falls upon the principal. This differs from the mandate to marry a specified woman, where he may marry her: for the marriage the agent concluded does not fall under the principal's order; what falls under the mandate is a marriage attributed to the principal, and by attributing it to himself he contravenes and removes himself. In the mandate of purchase, by contrast, what falls under it is an absolute purchase, not restricted by attribution to anyone: in absolutes, only the essence is taken into account, not the attributes; the purchase therefore covers the essence whatever its attribute, and the agent remains in conformity, even if he contravenes the genus or amount of the price expressed by the principal.
This applies when he buys it with currency or with the named price. If he buys it with other than currency, dirhams and dinars, when the price was not named, or contrary to the named price, whether the contravention is in the genus or the amount, or if he delegates an agent and the second buys during his absence, ownership is established to the first agent in these cases: he contravened the principal's order and the purchase is enforced upon him; for the agent of purchase may only buy with dirhams and dinars, which is the known thing, and the known is like the stipulated.
Zufar said: if he buys it by weight or measure, the purchase falls to the principal; for it is a purchase in every respect attached to liability (dhimma), like the two currencies, unlike buying with a specified object, which does not attach to liability: it is sale from one side and purchase from the other. Al-Mawsili said: our argument is that, in the absolute, the purchase reverts to the customary, the two currencies, and is restricted to them; if the second agent contracts in the first's presence, the purchase binds the principal: his view prevailed, so he is not in contravention (al-Ikhtiyar, 3/92).
If the second agent buys in the first's presence, the purchase is enforced upon the first's principal: his view was present, so he is not in contravention. Likewise if he buys for himself or for another principal in the first agent's presence, declaring that he buys for himself or for the other: the purchase belongs to the one declared; for he may remove himself in the principal's presence, and he has no right to remove himself without his knowledge: by undertaking the purchase for himself he removed himself. It is not permitted to him, a fortiori, not to buy for a second principal without the first principal's presence: if he buys for the second, the purchase belongs to the first, unless he accepted the second's mandate in the first's presence; it then belongs to the second; even if the first mandated him for one thousand and the second for one hundred dinars and he buys at one hundred dinars, the purchase belongs to the second: he owns buying for himself at one hundred, and so buying for another too.
The imam al-Kasani said: the agent of purchase of a specified thing may not buy it for himself; if he buys, the purchase falls to the principal; for his buying for himself is his removal from the mandate, and he may only remove himself in the principal's presence, as the principal may only remove him in his presence. As for the agent of purchase of an unspecified thing: if he buys, he is a buyer for himself, unless he intends it for the principal. The general rule: if he says "I bought it for myself" and the principal confirms him, the purchase belongs to the confirmer; if the principal says "you bought it for me" and the agent confirms, the purchase belongs to the principal; for the agent of purchase of an unspecified thing owns buying for himself as for the principal: both interpretations are possible and confirmation decides.
If they differ, the agent saying "I bought it for myself" and the principal "you bought it for me", the price decides: if he paid it from his own dirhams, the purchase is his; if he paid it from his principal's dirhams, the purchase is the principal's; for the apparent is the payment of the price with the money of the one for whom one buys: the apparent testifies to the price and is true in its ruling. If intention did not occur at the time of purchase and they agree afterwards, the price decides according to Abu Yusuf; according to Muhammad, the purchase belongs to the agent: the original being that man disposes for himself, not for another, the apparent testifies to the agent. Abu Yusuf's argument is that the Muslims' affairs are carried upon soundness and correctness as far as possible, whence the arbitration of the price (Bada'i' al-Sana'i', 6/31; al-Mabsut, 19/85; al-Ikhtiyar, 3/192; Mukhtasar al-Wiqaya, 2/176; al-'Inaya, 11/128; Tabyin al-Haqa'iq, 4/263; al-Bahr al-Ra'iq, 7/158-159; Hashiyat Ibn Abidin, 5/517-518).
The imam Ibn Abidin was asked: a village woman mandated her husband Zayd to buy a specified plot of land from her sister Hind, a mandate he accepted; he bought it for himself: does the purchase fall to the mandator? Answer: the agent of purchase of a specified thing who buys it for himself at the ordered price during the principal's absence is a buyer for the principal, and he owns buying for himself only by leaving the mandate, an exit he may effect only in the principal's presence, not in his absence, according to al-Khaniyya in the chapter on partnership: the purchase of the mentioned land falls therefore to the woman (Tanqih al-Fatawa al-Hamidiyya, 4/344).
The Malikis have four views in this question. The first: the word is the mandated one's if he paid him the price, after swearing that he only bought it for himself if he is suspected; this is the narration of Muhammad ibn Yahya al-Shaybani from Malik. The second: the goods belong to the principal, even without payment of the price; this is the narration of others than Ibn al-Qasim in al-Mudawwana, the view of Ashhab and his narration from Ibn al-Qasim in al-Mudawwana; whether the mandated one testifies that he bought it for himself or not, the matter returns to the principal, who is cleared of his promise of purchase. The third: the distinction between the case where he paid him the price and the one where he did not, the principal having ordered him to buy it for one hundred and promised that payment. The fourth: the purchase belongs to the principal, unless the mandated one testified that he was only buying it for himself (al-Bayan wa-l-Tahsil, 12/10; Mawahib al-Jalil, 7/155; al-Bahja fi Sharh al-Tuhfa, 1/346).
The imam al-Qarafi said: if a man is mandated to marry a woman and the agent marries her for himself, that is permitted and she is his wife; but if he is mandated to buy a specified slave and the agent buys him for himself, the purchase falls to the principal. The difference: in marriage, the agent contravened the wording of the contract; for in marrying her he says "I marry you to so-and-so", and in marrying for himself he says "I married so-and-so": by contravening the wording of the contract, it is not concluded for the principal, as if he were ordered to buy a slave for one thousand and bought him for two thousand. It is not so in purchase: he did not contravene the wording of the contract; for were he buying for the principal he would say "I bought", and were he buying for himself he would also say "I bought": he thus matched his order; and he bound himself by the contract of mandate that his contract be for the principal: if he contracts thus, the purchase falls to the principal; were one to say otherwise, he would have removed himself, and his removal by himself alone is not valid: he is therefore not removed (al-Furuq, 2/232).
The jurists asked: if the principal mandates the agent to buy a thing for him and the agent pays the price from his own funds, may he retain the purchased item until he collects the price from the principal? The Hanafis, and the Shafi'is in a view deemed weak among them, hold that the agent of purchase who pays the price from his wealth and receives the purchase is not a donor: he may revert upon the principal; for a legal exchange has been established between them: the agent is like a seller toward the buyer.
The signs are that, if they differ over the amount of the price, they exchange oaths, and if the principal finds a defect in the purchase, he returns it to the agent, which is among the characteristics of exchange. The principal being like the buyer from the agent, the goods were delivered to him from the latter's side and the claim reverts upon him. Moreover, the rights reverting to the agent and the principal knowing it, he is satisfied that he pay from his wealth: donation only occurs if payment takes place without the principal's permission; and permission is established here by indication, for the principal knew that the rights revert to the agent, including payment, and knew that he is claimed from for payment in order to receive the purchase: he was satisfied and commanded it by indication.
The destruction of the item in the agent's hand before his retention does not void the claim for restitution; for his hand is like the principal's: if he does not retain, the principal is deemed to receive by the agent's hand, and destruction in the agent's hand is like destruction in the principal's: the claim remains valid. The agent may retain the item until he collects the price, whether he paid it or not; for he is like the seller toward the principal, and the seller has the right to retain the sale to collect the price: there is thus no difference between the case where he paid the seller and the one where he did not.
If he retains the item to collect the price and it perishes, he is liable for it like the pledge (rahn) according to Abu Yusuf; for it became guaranteed by retention for collection after not being so: it was not guaranteed before retention and becomes so after, and everything so is of the meaning of pledge, not the meaning of sale; for the sold goods are guaranteed before retention by the contract itself, which proves the thesis. It is not so with sale, which is rescinded by its destruction, whereas here the original contract, that between the agent and his seller, is not rescinded: the lesser of its value and the price is then considered; if the price is fifteen and the value ten, the agent claims five from the principal.
It is guaranteed like the sale according to Muhammad, and this is Abu Hanifa's view, upon which the fatwa rests: for he is like the seller toward the principal, his retention aims at collecting the price, and the price falls by its destruction, small or large. It is guaranteed like usurpation according to Zufar: he seized without right, he is an usurper, the like or the value is owed to the extent it reached; the agent does not revert upon the principal if the price is greater, and the principal reverts upon the agent if the value is greater (Mukhtasar Ikhtilaf al-'Ulama', 4/82; al-'Inaya, 11/118, 122; al-Ikhtiyar, 3/193; al-Jawhara al-Nayyira, 3/483-485; al-Lubab, 1/558-559).
Ibn Abidin was asked: may the agent of purchase who paid the price from his wealth to the seller revert upon the principal with a like amount? Answer: yes; it is said in al-Ashbah: the agent of purchase who pays the price from his wealth reverts upon his principal, except if he claimed payment, the principal confirmed him and the seller denied: no reversion, according to al-Khaniyya. In al-Bazzaziyya: he is mandated to buy a slave; he says "I bought him and paid the price"; the principal answers "you are right, but the seller is absent: he may come and deny receiving the price; he is not regarded, and payment of the price to the agent is ordered; if the seller denies after coming and swears, the principal reverts to his agent for the payment"; likewise in al-Khayriyya and al-Durr: the claim with the price against his commander for the agent of purchase if he did what he was ordered, whether he paid the seller or not (Tanqih al-Fatawa al-Hamidiyya, 4/284).
The Malikis, the Shafi'is in the madhhab and Zufar among the Hanafis hold that he has no right of retention. Zufar said: the principal is deemed to receive by the agent's hand, as if he had delivered it to him: the right of retention falls, and the agent is liable like usurpation, having seized without right; the like or the value is owed to the extent it reached: the principal reverts upon the agent if the value is greater, and the agent does not revert upon the principal if the price is greater (Mukhtasar Ikhtilaf al-'Ulama', 4/82; al-'Inaya, 11/118, 122; al-Ikhtiyar, 3/193; al-Jawhara al-Nayyira, 3/483-485; al-Lubab, 1/558-559).
Al-Tahawi said: regarding the agent who retains the goods with the price, our companions said he may retain it with the price: if it perishes after retention, it is like the pledge according to Abu Yusuf, and like the sale according to Abu Hanifa and Muhammad; Zufar said he does not retain it, and if he retains it he guarantees the value like usurpation: this is Malik's view. The Shafi'is said: when the buyer's agent receives the sale and the price is paid from the agent's wealth, he has no right to retain the sale to compel the principal to pay him. In a weak view: he has that right, the foundation being that ownership is first established to the agent then passes to the principal (Sharh al-Kabir of al-Rafi'i, 5/258; Rawdat al-Talibin, 3/526).
Al-Mawardi transmitted from al-Muzani: "if he asks him for the price and he withholds it from him, he is liable for it, except in a state in which he cannot deliver it." Al-Mawardi commented: this applies when the agent holds the price of what he sold for his principal, who asks him for it and he withholds it: the withholding is either excused or not. If excused, by illness, by a fear preventing reaching the place of the price, by the nearness of a Friday prayer or a written mission whose time is pressing, by a key lost in others' houses, or by attending his creditor: it is an excuse for delaying payment, and no liability if the thing perishes before payment. If he withholds it without excuse, he becomes liable: if it perishes, the loss is upon him.
If he withholds the price until making the principal testify to his own receipt, the companions differed: three views. The first, the sounder: it is not permitted to him, and the principal is not obliged to testify against himself to his receipt; for the agent's word is accepted in payment: by withholding, he becomes liable, and the loss is upon him if the thing perishes. The second: he may withhold except upon witnessing, to preserve himself from the oath with false denial: he is thus not liable by withholding, nor losing if it perishes. The third, Malik's madhhab: if he received the wealth with witnessing, he only pays with witnessing; if he received without, he must pay without. As for the one whose word is not accepted in payment, he only pays with witnessing, whether he is liable like the usurper and the borrower, or not liable like the holder of the pledge. As for the mudarib and the hired partner: if one says their word in payment is not accepted, they only pay with witnessing; if one follows the soundest view of the madhhab, their word is accepted therein, and the obligation of witnessing for them follows the three views mentioned.
If the agent withholds the price from his principal though he could have paid it had it remained, and the price perished before his withholding, the agent unaware of it: two views on his liability. The first, Ibn Surayj's: he is liable for what he presumes, the deposit being guaranteed by the conviction of withholding restitution. The second, the sounder: no liability, for the thing perished before the existence of the cause entailing liability. Allah knows best. Al-Muzani said: if he was able, withheld, then came to deliver it and it perished in his charge, his later claim to have paid it is not accepted. Al-Mawardi: this is correct when the agent withheld payment to his principal without excuse: he becomes liable; if he carries it afterwards to pay it and it perishes, the loss is upon him; and his claim to have paid after a refusal without excuse is not accepted, liability being attached to his responsibility.
If he asks to have his principal witness the payment, the latter must do so; if the principal clears the agent of liability: if this occurs after the loss of the thing in his hand and the attachment of the loss to his responsibility, the clearance is valid; if it occurs while the guaranteed thing remains in the agent's hand, two views on the validity of the clearance: it is valid, like the clearance of a debt attached to his responsibility, so that his later claim to have returned it is accepted; or the clearance is not valid, for it is a guaranteed item itself, like the usurped, whose liability does not fall by clearance: his later claim to have returned it is not accepted. Allah knows best (al-Hawi al-Kabir, 6/522-524; Mukhtasar al-Muzani, p. 110).
The agent is in one of three states: the principal permits him to delegate, in which case he may delegate another without dispute among the jurists; the principal forbids him, in which case delegation is not permitted to him, without dispute among the jurists; or the principal grants him an absolute mandate without permitting or forbidding delegation: the scholars differed on the permissibility of delegating. The majority of the jurists, the Hanafis, Malikis, Shafi'is and Hanbalis according to the widespread view, hold that it is not permitted to him; a view of the Hanbalis permits it with detail.
The majority of the jurists, the Malikis, Shafi'is and Hanbalis, affirmed that delegation is permitted to him in three situations, even if he is not explicitly authorized:
The Shafi'is said: if he is mandated with what he can normally do but is unable for travel or illness, al-Shirbini said: if delegation occurs while the principal knows of his travel or illness, delegation is permitted to him; if the incapacity occurs afterwards, it is not, differing from al-Juwayni, who said it in al-Matalib; sudden incapacity being that whose state the principal is unaware of at the time of the mandate, as was reported shortly before from al-Isnawi (Mughni al-Muhtaj, 3/207). Detail of each madhhab: the Hanafis said that the agent may not delegate another in what he was mandated for; for the principal delegated to him the disposition, not delegation: he was satisfied only with his opinion, and people differ in their opinions, so he is not satisfied with another's. Unless the principal permits him to delegate, consent being present, or delegates it to him saying "act by your opinion" or "do what you wish": it is permitted, the delegation to his opinion being absolute; he then delegated the matter absolutely and was satisfied with that.
If the principal permits delegation or says "act by your opinion", the second agent is the agent of the first principal: he acts for him, and is not removed by the first's removal nor by his death, like the judge who institutes a succeeding judge; the two are removed by the death of the first principal. According to a view reported in al-Fatawa: if a man delegates another and delegates the matter to him, and the agent delegates a man, his delegation is valid and he may remove the delegate; but if the principal says to him "delegate so-and-so" and he delegates him, he may not remove him except with the first principal's consent. According to the first view, if he delegates without his principal's permission and his agent contracts in the first agent's presence, it is valid: the purpose is obtaining the first's opinion, and his opinion was obtained. Zufar said: it is not permitted; the delegation not being valid, it is as if he had contracted in his absence.
Likewise, every contract of exchange, and what is not exchange, like marriage, divorce and manumission, is not valid by his ratification: if he is mandated with divorce or manumission without being authorized, and he delegates another who divorces or frees in the first agent's presence, the divorce or manumission does not take place; for his delegation to the first is like a condition, equivalent to suspending the divorce upon the first's divorcing: it does not take place without the condition, divorce and manumission attaching to the condition, unlike sale, which is of the affirmative acts and does not bear suspension upon a condition. If the second contracted without his presence and the first agent ratified it, it is valid, his opinion being authoritative; this concerns sale: if he bought, the purchase is enforced upon the agent. In al-Hidaya: if he contracts during his absence, it is not permitted, according to Zufar's view already cited, his opinion having escaped him, unless he informs him so that he ratifies; likewise if someone other than the agent sold and he ratified, it is valid: his opinion was presented to him (al-'Inaya, 11/190-191; al-Ikhtiyar, 3/195-196; al-Jawhara al-Nayyira, 3/488-489; al-Lubab, 1/560-561; Majma' al-Anhar, 3/330; al-Fatawa al-Hindiyya, 3/566).
The Malikis said: the agent may not delegate another independently in what he was mandated for without his principal's consent; if he wishes to delegate, he has himself represented without intermediary. Except if he delegates for the sale of something that does not befit him, like the noble known for his eminence among people, to whom a mount or a garment is given to sell: custom rules that he does not himself cry his goods in the market, but entrusts them to the brokers and middlemen, and he may have himself represented by custom; or if he is mandated with a numerous thing he cannot do alone without hardship: he may then have himself represented by the one who executes it with him, not delegate him in all of it independently, unlike the first case. This concerns the specific agent; as for the fully delegated one, delegation is not forbidden to him absolutely according to the widespread view.
The second agent is thus not removed by the first's removal nor by his death, like the agent mandated after an agent: he is not removed by the latter's death nor his removal, and both are removed by the first principal's death, who may remove each, as the first agent may remove his agent. This applies to delegation without the principal's permission; with his permission, if the principal says "delegate for yourself", the second is removed by the first's removal; if he says "delegate for me", the second is not removed by the first's removal: both are agents of the principal (Sharh al-Kabir with Hashiyat al-Dasuqi, 5/70; al-Taj wa-l-Iklil, 4/210; Mawahib al-Jalil, 7/159; Tahrir al-Mukhtasar, 4/261; Sharh Mukhtasar Khalil, 6/78).
The imam al-Shafi'i said: if a man delegates a man by a mandate, the agent may not delegate another, whether he is ill, intends travel or not; for the principal was satisfied with his representation alone, not that of another; if it is said he may delegate according to his opinion, that is only with the principal's consent (al-Umm, 7/119). Al-Mawardi said: the work the mandate comprises is of two kinds: what he can perform alone, and what he cannot perform alone. What he cannot perform alone, like transporting a load, building an estate or a construction: he may delegate therein someone who works with him, absent explicit prohibition, the second and the first being two agents of the principal, the second not being removed by the first's removal. Likewise if he is mandated with what one alone can perform but does not perform well and does not know its craft, like weaving a garment without knowing weaving or fashioning jewelry: he may delegate and have himself represented, the meaning of his delegation, not knowing the craft, being his representation of one who knows it. Likewise if he is mandated with what his custom does not perform, though he knows how, like crying a garment for sale without it being his custom, or washing: it is permitted to him, in consideration of custom, to delegate in his mandate the one whose custom it is.
If the act mandated is of those he can perform alone and his custom performs it, like a man mandated with a litigation of which he is one of the parties, or a contract of sale while he is of those whose contract is valid, or collecting a debt or partitioning common property while he is among those entitled to partition and holders of the right to exact: the principal finds himself with him in one of three states. The first: he forbids him, at the contract of mandate, to delegate: delegation is not permitted to him despite the prohibition, and if he delegates, his delegation is void: this is agreed upon. The second: he permits him, at the contract of mandate, to delegate and have himself represented: of two kinds. Either he designates to him a specific person to delegate, and the agent may not delegate another, whether the designated person is trustworthy and just or treacherous and perverse, for the principal's choice rests upon him. Or he does not designate anyone and says to him "I have given you the choice: delegate whom you see": the agent must then, if he wishes to delegate, choose a trustworthy and competent person; if he delegates a treacherous perverse man, it is not permitted, for the delegation of such a man is not seen as fitting. If he delegates a trustworthy person and his corruption occurs or his treachery appears, may he remove him before asking his principal's permission? Two views: he may not remove him except by delegating another, first asking permission; or he may remove him even without asking his principal's permission, the absoluteness of the permission requiring the delegation of a trustworthy and just person.
The agent being able to delegate with authorization, the principal finds himself in one of three states. First, he permits the delegation on behalf of the principal: the first and the second are then two agents of the principal; if the first is removed, the second remains in office. Second, he permits the delegation on behalf of the agent: the second is then the agent of the first agent; if the principal removes the first agent, the second is removed and his mandate voided. Third, his permission to delegate is absolute, without specifying whether on behalf of the principal or the agent: if the principal designated to the agent the person to delegate, the designated one is the agent of the principal, not of the first agent, designation being an indication; if he did not designate, two views: the delegate is the agent of the principal like the first, not being removed by the first's removal, the validity of his delegation resting upon the principal's permission; or he is the agent of the agent, being removed by the first's removal, having been delegated to his opinion. The second is then removed by one of three events: the first's removal, the first's removal of him, or the principal's removal of him; according to the first view, he is only removed by the principal's removal alone.
This applies when the principal explicitly authorized his agent to delegate; if the authorization comes to him without explicitation, like "I mandated you and gave you to act by your opinion", or any other word authorizing it, does the absoluteness of delegation require the permission to delegate or not? Two views, reported by Ibn Surayj: the absolute requires it and he may delegate in consideration of the absoluteness of delegation; or it does not, and he may not delegate another, the apparent of delegation referring to his act, not to another's.
Third state: the mandate is absolute, the principal neither permitting nor forbidding delegation: al-Shafi'i's madhhab is that the agent may not delegate. Abu Hanifa said he may delegate for two reasons: he established him in his own place, delegation being therefore permitted as for himself; and the purpose of his representation is the accomplishment of the act mandated: there is no difference between performing it himself and having another help him, the act being accomplished for the principal in both cases. This position is wrong from two angles: the agent's act is limited to what the authorization comprises, without excess in delegation; and the principal rests, in his act, upon his agent's trust: he may not delegate the one the principal does not trust, like the deposit which may not be entrusted to another, the owner having been satisfied only with his depositary's trust.
As for his argument that he established him in his place: it is true in performing the act mandated, not beyond; does one not see that he is not permitted to give nor to clear from liability, though the principal may give and clear, not having authorized him? It is the same for delegation. As for the answer that the purpose is the accomplishment of the act: it is true, but the principal specified him and accepted his trust, like the one who hires a specific worker for a work and may not hire another to perform it: the employer's purpose is the accomplishment of the act at the hands of that worker, whose act cannot be done by another; it is the same here (al-Hawi al-Kabir, 6/518, 250; al-Muhadhdhab, 1/351; al-Bayan, 6/411-412; Rawdat al-Talibin, 3/509; Mughni al-Muhtaj, 3/207; Nihayat al-Muhtaj, 5/44-45; al-Najm al-Wahhaj, 5/48-49; Hashiyat Qalyubi wa-'Umaira, 2/858-859; al-Dibaj, 2/315-316).
The Hanbalis: Ibn Qudama said that the agent may not delegate in what he was mandated for, unless that was granted to him. Delegation is in one of three states. The principal forbids his agent to delegate: it is not permitted to him without dispute; for what is forbidden does not fall within the authorization: it is as if he had not mandated him at all. The principal permits him to delegate: it is permitted, for it is a contract permitted to him whose performance is owed to him, like the permitted disposition; no disagreement is known in this case; and if he says to him "I mandated you, do what you wish", he may delegate. The companions of al-Shafi'i say he may not delegate according to one of the two views: delegation requires a disposition he performs himself, and "do what you wish" refers to what delegation requires of his own disposition. Our answer: his wording is general in what he wishes, and delegation enters its generality.
Third state: the principal grants an absolute mandate, delegation being then in three divisions. The first: the act is of those the agent refrains from by custom, like the lowly works for the notables, or which he cannot perform for not knowing how, or otherwise: delegation is permitted to him; for what the agent does not customarily know, the authorization refers to customary representation. The second: the act is of those he performs himself but is wholly unable to perform by reason of its multitude: delegation is permitted to him in his whole act too; for the mandate implied the permission to delegate, and delegation of the whole is valid as if the permission to delegate were verbal. Al-Qadi said: delegation is only permitted to him in what exceeds what he can perform himself; for delegation is only permitted by necessity and is restricted to it, unlike the case of an existing authorization, which is absolute; the companions of al-Shafi'i have two views corresponding.
Third division: anything else, what he can perform himself without refraining: is delegation permitted? Upon two narrations. The first: it is not, reported by Ibn Mansur, the madhhab of Abu Hanifa, Abu Yusuf and al-Shafi'i: the principal did not authorize him in it and his authorization does not comprise it: it is as if he forbade him; and it is a trust in what he can undertake: he may not entrust it to one not worthy of his trust, like the deposit. The second: it is permitted, reported by Hanbal, and it is the view of Ibn Abi Layla, if he is ill or absent; for the agent may dispose of himself, his charge being a deputyship, like the owner. The first view is the more apparent, the agent not resembling the owner: the owner disposes of his property as he wills, unlike the agent.
Section: every agent permitted to delegate may only delegate a trustworthy person; for it is a consideration owed to the principal to delegate one not worthy of trust: the validity of delegation is restricted to what involves interest and consideration, as the permission to sell is restricted to selling at the market price. Unless the principal designates to him the person to delegate: he may then delegate her even if she is not trustworthy, the designation having cut off his consideration. If he delegates a trustworthy person who becomes treacherous, he removes her: leaving her to dispose with treachery would be negligence and dereliction; the mandate requires trust in a worthy person, and she is not: she must be removed.
Section: the ruling of the executor who delegates in what was bequeathed to him, and of the governor entrusted with the judiciary of a region who has himself represented therein, follows the ruling of the agent in the detail mentioned (al-Mughni, 5/56-57; Sharh al-Kabir, 5/209-210; Kashshaf al-Qina', 3/543; al-Rawd al-Murbi', 2/59).
The shaykh of Islam Ibn Taymiyya was asked about a group of brokers sharing in the sale of goods: does that harm their religion? And may the ruler prevent them without deception or trickery appearing? He answered: if the merchant who hands his wealth to the broker knows that he hands it to others than him among the brokers and is satisfied with that, there is no harm in it, without doubt; for the broker is the merchant's agent, and the agent may delegate, like the principal, by the scholars' agreement; they only disputed delegation without the principal's permission, according to two widespread views (Majmu' al-Fatawa, 30/97-98).
Among the evidence for the permissibility of the agent's delegation is the hadith reported by Muslim from Hudhayfa ibn al-Mundhir, known as Abu Sasan:
"I witnessed the session of 'Uthman ibn 'Affan when al-Walid was brought to him, having prayed two rak'as at dawn, and he said: 'Do you wish me to add more?' Two men testified against him, among them Humran, that he had drunk wine, and another testified having seen him vomit. 'Uthman said: 'He did not vomit until he had drunk it.' Then he said: 'O 'Ali, rise and flog him.' 'Ali said: 'O Hasan, rise and flog him.' Hasan said: 'Woe to her who undertook what another should have undertaken', giving the impression of being displeased. He then said: 'O Abdallah ibn Ja'far, rise and flog him.' He flogged him, 'Ali counting the lashes up to forty, then he said: 'Stop.' Then he said: 'The Prophet (peace and blessings of Allah be upon him) flogged forty lashes, Abu Bakr forty, and 'Umar eighty: each is a sunna, and this is dearer to me.'"Reported by Muslim (1707)
There is no disagreement among the jurists of the four schools that the principal may mandate more than one agent in a specific disposition, as a general rule, except litigation, in which they differed, as has passed regarding the ruling of delegation in litigation. The jurists nevertheless divided the state of multiple agents into three divisions:
The Hanafis said: if the principal mandates two agents in two wordings, each may dispose alone, for he was satisfied with each one's opinion in mandating them successively. If he mandates them in a single wording, neither may dispose in what they were mandated for without the other; if he does, it is not permitted until his partner or the principal ratifies, if the disposition is of those requiring an opinion, like sale, khul' and the like, "I mandate you both to sell such-and-such" or "to pronounce the khul' of such-and-such": the principal was satisfied with both their opinions, not with one of them. If one dies or loses his mind, the other may not dispose, whether the price is named or not, and whether the other agent is present or absent.
Likewise the two agents of marriage and divorce against wealth, of manumission against wealth, of khul' and writing, and every contract carrying a counter-value in wealth: all of that requires an opinion, and the principal was not satisfied with one's opinion without the other. Likewise what issues as transfer of ownership: if he says to two men "I place the affair of my wife in your hands", or "divorce my wife if you wish", neither divorces alone: he placed the right of disposition as an ownership, which stops at the session and is suspended upon the will, like "divorce my wife if you wish": neither owns the divorce without his partner, what is suspended upon two conditions only occurring with both. Likewise the two agents of collecting a debt: neither may collect without his partner; for collection requires opinion and trust, the opinion having been delegated to both and the trust accepted from both: if one collects, the creditor is not cleared until what he collected reaches his partner, in both their hands, or the principal; once it reaches, the purpose of collection is attained, as if they had collected together from the start.
As for the two agents of divorce without wealth, manumission without wealth, delivering a gift, paying a debt, returning a deposit, a loan or a usurped item: one of them may dispose alone, these dispositions requiring no opinion: the attribution of the mandate to both is a delegation of the disposition to each alone. As for the two agents of litigation: each disposes alone according to Abu Hanifa, Abu Yusuf and Muhammad; for the purpose of litigation is informing the judge of what the adversary owns and of his hearing, and the union of the two agents harms the informing and the hearing: the crowding of words harms understanding; the attribution of the mandate to both is a delegation of the litigation to each, the one who pleads being representative. However, neither may collect without his partner, even though the agent of litigation may collect: their union upon collection being possible, the principal is not satisfied with one collecting alone (Bada'i' al-Sana'i', 6/32-33; al-'Inaya, 11/184-185; Mukhtasar al-Wiqaya, 2/174; al-Ikhtiyar, 3/195; al-Jawhara al-Nayyira, 3/485-487; al-Lubab, 1/559-560).
The Malikis said: the principal who mandates two agents or more over a thing, either together at one and the same time: none may dispose alone, unless the principal stipulated to them independence; or successively: each of the two agents over wealth, of sale, purchase, collecting a debt and the like, like divorce, manumission, clearance, gift and waqf, excluding the litigation detailed earlier, may dispose alone of what he does, whether the second knew of the first's existence or not; unless the principal stipulated that none dispose alone: consultation with the other is then required, as if they were mandated together. As for the two executors: neither disposes alone, even successively; for the bequest only takes place at death, with no effect for the order established before it, and the executor's incapacity to consider return without the principal if removal appears on his part (Sharh al-Kabir with Hashiyat al-Dasuqi, 5/76; al-Taj wa-l-Iklil, 4/215; Mawahib al-Jalil, 7/174; Tahrir al-Mukhtasar, 4/297; Sharh Mukhtasar Khalil, 6/82; Minh al-Jalil, 6/405).
As for the Shafi'is, al-'Imrani said: if he mandates two agents in a disposition, like sale or hire and their like: if he explicitly stated that each may dispose alone, they dispose together and separately, the authorization covering them in that. If he says "I mandate you both jointly", "I mandate you both over such-and-such", or is absolute, none may dispose alone: the principal was not satisfied with the regard of one alone; if one is absent or dies, the judge may not establish another in his place, the principal not having been satisfied with the regard of another. If one of the two agents appears before the judge and the other is absent, and the present one claims the mandate for himself and the absent one and establishes proof: Ibn al-Sabbagh said the judge hears it, rules the mandate established for both, and the present one may not dispose until the absent one comes; when he arrives, there is no need to renew the proof, the judge having heard it; if it is objected that this is a judgment for the absent one, we answer that it is only permitted in following the present one's right, as it is permitted to judge of the waqf for the members of the second branch in following those of the first. If he mandates the two to guard his wealth: if it is indivisible, they place it in a safe for both; if it is divisible, may they partition it? Two views, already passed regarding the pledge. If he mandates two men with his wife's divorce jointly, neither may divorce alone. Abu Hanifa said: one of the two may divorce alone. Our proof: it is a disposition delegated to two, none may perform it alone, like sale (al-Bayan, 6/413-414; al-Muhadhdhab, 1/351; Takmilat al-Majmu', 14/113-114).
The Hanbalis hold in the madhhab: if a man mandates two men, one after the other without declaring the first's removal, or both together, neither may dispose alone: the principal did not delegate to either alone; likewise the two guardians of maintenance and the two executors. It is said: none disposes alone except in litigation: al-Mirdawi said this is the sounder. If the principal grants each the right to dispose alone, each has that right; if he grants it to one of them specifically, that one alone disposes. If one of the two agents is absent and the principal did not grant each the right to dispose alone, the present one may not dispose during his partner's absence, and the judge may not join a trustee to them for them to dispose together; unlike the death of one of the two executors, where the judge joins a trustee to the remaining executor: the judge having the guardianship of the deceased and the orphan, he establishes a guardian for the orphan's guardianship if none was designated; unlike the principal, an adult capable of disposing, over whom the judge has no guardianship.
If one of the two agents appears before the judge and the other is absent from the country or the session, and the present one claims the mandate for himself and his partner and establishes proof which the judge hears, ruling the mandate established for both, the present one may not dispose alone, as has passed; the other agent having come, they dispose together, without renewing the proof, the earlier judgment standing for the absent one in following the present one, as it is permitted to judge of the waqf established for the one not yet born in favor of the one entitled to it now. If the absent one denies the mandate or removes himself, the other may not dispose: the principal not having been satisfied with the disposition of one alone, as evidenced by the attribution of the other to the mandate, as has passed (Sharh al-Kabir, 5/219-220; al-Mubdi', 4/366; al-Insaf, 5/375; Kashshaf al-Qina', 3/551-552; Matalib Uli al-Nuha, 4/532).
Ibn Qudama said: if the principal mandates two agents in a disposition and grants each the right to dispose alone, that is permitted to him, the authorization existing; otherwise, neither disposes alone: the principal did not authorize him in that, and only what his principal permits is permitted to him; al-Shafi'i and the people of opinion said so. If he mandates the two to guard his wealth, they guard it together in a safe for both: his saying "do such-and-such" requires their union upon the act, which is possible, attaching to them; unlike his saying "I sell to you both", the wealth being divisible between them: common ownership not being possible, it divides. If one of the two agents is absent, the other may not dispose, and the judge may not join a trustee for them to dispose together: the principal is an adult capable of disposing without the judge's guardianship, and the judge does not join an agent without his order; unlike the death of one of the two executors, where the judge joins a trustee to the executor, the guardianship of the deceased and the orphan belonging to him; and if no executor was designated, he establishes a guardian for the orphan's guardianship.
If one of the two agents appears before the judge and the other is absent, and the present one claims the mandate for both and establishes proof which the judge hears, ruling the mandate established for both, the present one may not dispose alone; the other having come, they dispose together, without repeating the proof, the judge having heard it for both at once. If it is said that this is a judgment for the absent one, we answer: it is permitted in following the present one's right, as it is permitted to judge of the waqf established for the one not yet created in favor of the one entitled to it now, and it is so here. If the absent one denies the mandate or removes himself, the other may not dispose. Thus said Abu Hanifa and al-Shafi'i: no disagreement is known therein, and all the dispositions are alike in this. Abu Hanifa said: if the principal mandates the two with a litigation, each of them may conduct it alone. Our answer: he was not satisfied with the disposition of one alone, like sale and purchase (al-Mughni, 5/56).