Islamic Fiqh > Companies and leases > Wakala (agency mandate) > Fifth situation: disagreement over the very existence of the mandate
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Updated on 25 September 2026 at 6:57 PM
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If the two differ over the origin of the mandate, one saying: you mandated me, and the other: I did not mandate you, the jurists of the four schools, the Hanafis, Malikis, Shafi'is and Hanbalis, held that the word is the denier's; for the default is the absence of a mandate, and it is not established that he is his trusted custodian for his word to be accepted upon him. The Hanafis said: if the principal denies the mandate, the word is his, with his oath (al-Jawhara an-Nayyira 3/514, al-Lubab 1/570, al-Bunayya 9/298). The Malikis said: if they differ over the origin of the authorization, one saying: you mandated me, the other: I did not mandate you, the word is the principal's ('Uqd al-Jawahir ath-Thamina 2/833, adh-Dhakhira 8/17). The Shafi'is said: if they differ over the origin of the mandate, such as: you mandated me for this and he denies it, or over its attribute, such as: you mandated me for a sale on deferred payment or a purchase for twenty, and he says: rather for cash, or for ten, the word is the principal's, with his oath; for the default is the absence of authorization for what the agent mentioned, and because the principal knows best the state of the authorization issued by him (Rawdat at-Talibin 3/531, Asna al-Matalib 2/282). The Hanbalis said: if they differ over the origin of the mandate, he saying: you mandated me, and the principal denying it, the word is the denier's; for the default is the absence of a mandate, and it is not established that he is his trusted custodian for his word to be accepted upon him.
If he says: I mandated you and handed you property, and the agent denies all of that, or admits the appointment but denies the handing over of the property, the word is his. Ibn Qudama, may Allah have mercy on him, said: if a man says to another: I mandated you to marry me to such a woman with a dower of such an amount, and he did so, and the woman claims it, and the principal denies it, the word is the agent's: Ahmad stated this explicitly, saying: if he establishes evidence, otherwise the marriage contract does not bind the other. Ahmad said: he is not put under oath. Al-Qadi said: because the agent claims a right for another; as for the woman claiming it, it is fitting that he be put under oath; for she claims the dower upon his liability; when he swears, the dower does not bind him, and nothing binds the agent on his account; for the woman's claim against the principal and the rights of the contract do not attach to the agent.
Ishaq ibn Ibrahim transmitted from Ahmad that the agent is bound by half of the dower; for the agent in purchase stands as guarantor of the price, and the seller may demand it from him; so it is here, but the first view is more fitting, for what we mentioned, and marriage differs from purchase: the price is the seller's aim, custom is to advance it and take it from the one charged with the purchase, and marriage differs from all of that. But if the agent guaranteed the dower, she has recourse against him for half of it; for he guaranteed it on behalf of the principal, and he admits that it is upon his liability; this is what Abu Hanifa, Abu Yusuf and al-Shafi'i said. Muhammad ibn al-Hasan said: the whole dower binds the agent; for the distinction did not take place through his denial, so that it remains established in the unseen, and the whole dower is due.
For us: he holds the power of divorce: when he denies, he admits her prohibition to himself, and becomes like one who did what renders her prohibited. Ahmad said: the woman does not marry until he divorces her, for he may be lying in his denial; the apparent meaning of this is the prohibition of her marriage before her divorce; for she admits being his wife: her admission is retained, and his denial is not a divorce. Does her divorce bind the principal? It is possible that it does not bind him; for no marriage was established against him; and even if it had been established, he would not be charged with the divorce. It is possible that it is imposed upon him; to remove the uncertainty and ward off harm from her by what causes him no harm; she then resembles the invalid marriage.
If someone claims that such an absent man mandated him to marry a woman, and he married her to him, and the absent man then died, the woman does not inherit from him, unless the heirs believe the agent or she establishes evidence. If the principal admits the appointment for the marriage but denies that the agent married him to her, the disagreement concerns the agent's act, and the word is the agent's therein: the marriage is established here. Al-Qadi, may Allah have mercy on him, said: it is not established, and this is the view of Abu Hanifa; for establishing evidence is not impossible, the marriage being concluded only by it. He mentioned that Ahmad stated this explicitly, and alluded to his text for the case where the principal denies the mandate from its very origin.
For us: they differ over the agent's performance of what he was ordered, and the word is his, as if he had been commissioned to sell a garment and claimed that he sold it, or to buy a slave for a thousand and claimed that he bought him at that price. What al-Qadi mentioned of Ahmad's text for the case where the principal denies the mandate is not a text here; for the rulings of the two situations differ and are distinct: a text in one is not a text in the other, and the meaning he mentioned has no basis: it is therefore not relied upon.
If a man is absent and another comes to his wife, tells her that her husband divorced her and declared her free, and that the husband mandated him to renew her marriage with a dower of a thousand, she authorizes her marriage; he contracts it, and the agent guarantees the thousand; then the husband returns and denies all of this: the word is the agent's, and the first marriage remains; according to our earlier reasoning, if the woman believes the agent, the thousand binds him, unless her husband frees her before the second's consummation. This is related from Malik and Zufar.
It is related from Abu Hanifa and al-Shafi'i that nothing binds the guarantor; for he is a branch of the one for whom the guarantee was given, and nothing bound the one for whom the guarantee was given: likewise his branch. For us: the agent admits that the right is upon the liability of the one for whom the guarantee was given, and that he is his guarantor: what he admitted therefore binds him, as if someone claimed against a man that he guaranteed him a thousand on a third party, and the guarantor admitted the guarantee and its validity, and the establishment of the right upon the liability of the one for whom the guarantee was given; or as if someone claimed preemption against someone over a share that he bought, and the seller admitted the sale while the buyer denied it: the preemptor obtains the preemption in the sounder of the two views. If the woman does not claim the validity of what the agent mentioned, nothing is due from him. It is possible that whoever removed the guarantee removed it in this situation, and that whoever made it binding in the other situation involves no disagreement; and Allah knows best (al-Mughni 5/61, 62, al-Kafi 2/254, ash-Sharh al-Kabir 5/254, 255, al-Mubdi' 4/384, al-Insaf 5/402, Kashshaf al-Qina' 3/569, 570, Sharh Muntaha al-Iradat 3/538, Matalib Uli an-Naha 3/482).
If the principal and the agent differ over the attribute of the mandate: the principal saying: I mandated you for the sale of this garment, and he replying: rather you mandated me for the sale of this mount; or saying: I mandated you for the sale at two thousand, and he replying: rather at a thousand; or: I mandated you to sell it for cash, and he replying: rather on deferred payment; or: I mandated you to buy a male slave, and he replying: rather a slave girl; or: I mandated you for the purchase at five, and he replying: rather at ten: the jurists differed over determining whose word stands: the principal's or the agent's? The majority of jurists, the Hanafis, Malikis, Shafi'is and Hanbalis, according to a view chosen by Ibn Qudama, held that the word is the principal's; for he denies the contract that the agent claims, and he then resembles one who denies the origin of the mandate: it is so likewise; and because they differ over the attribute of the principal's word, the word is his, as if the spouses differed over the attribute of the original divorce (Tabyin al-Haqa'iq 4/274, al-Bahr ar-Ra'iq 7/171, ad-Durr al-Mukhtar 5/525, ash-Sharh al-Kabir with ad-Dasuqi's gloss 5/78, Sharh Mukhtasar Khalil 6/83, 84, at-Taj wal-Iklil 4/217, Mawahib al-Jalil 7/176, 177, Tahrir al-Mukhtasar 4/298, 299, al-'Ubbab 701, al-Bayan 6/463, 464, Mughni al-Muhtaj 3/219, Nihayat al-Muhtaj 5/64, 65, Kanz ar-Raghibin 2/781, an-Najm al-Wahaj 5/66, 67, ad-Dibaj 2/324, al-Mughni 5/63, 64, al-Kafi 2/255, ash-Sharh al-Kabir 5/250, al-Mubdi' 4/382, al-Insaf 5/399, Kashshaf al-Qina' 3/568, Sharh Muntaha al-Iradat 3/537, Matalib Uli an-Naha 3/482).
The Malikis, however, excepted from this rule two situations in which the agent's word is accepted:
Ibn Qudama, may Allah have mercy on him, said: this view is the sounder, for two reasons:
On this basis, if he says: I bought you this slave girl with your authorization, and he says: I authorized you only for the purchase of another, or: you bought her for me for two thousand, and he says: I authorized you her purchase only for a thousand, the word is the principal's, and the oath is upon him: when he swears, he is discharged of the purchase. There then remains whether the purchase was made with specific property or upon the liability: if it was made with specific property, the sale is invalid, and the slave girl is returned to the seller if he admits it; if he denies that the purchase was for another or with another's property without his authorization, the word is the seller's; for what is in a person's hand is presumed to be his. If the agent claims knowledge of that, he is made to swear that he does not know that he bought her with his principal's property; for he swears to the negation of another's act, and his oath then bears upon the negation of knowledge. When he swears, the sale is confirmed; the agent owes his principal the penalty of the price and the payment of the price to the seller, and the slave girl remains in his hand without being lawful for him; for either he is truthful, and she belongs to the principal, or he is lying, and she belongs to the seller. If he wishes to make her lawful, he buys her from the one to whom she truly belongs; if he refuses to sell her to him, the matter is brought before the judge to act gently and sell her to him, so that ownership is established for him outwardly and inwardly, and what stands upon the seller's liability becomes compensation for what the other unjustly took from him. If the other refuses to sell, he is not compelled; for it is a transaction contract.
If he says: if the slave girl is mine, I have sold her to you, or the principal says: if I authorized you her purchase for two thousand, I have sold her to you, there are two views herein. One: it is not valid, according to al-Qadi and some Shafi'is; for it is a sale suspended upon a condition. The other: it is valid; for it is an existing matter whose existence is known to both, and making it a condition does no harm, as if he said: if this slave girl is mine, I have sold her to you; and likewise every condition whose existence is known: it brings about neither the sale nor doubt about it.
If the agent bought upon the liability and then paid the price, the purchase is valid and binds the agent apparently; as for the unseen, if the agent lied in his claim, the slave girl is his; for he bought her upon his own liability without another's order; if he is truthful, she is his principal's. If he wishes to substitute her for his benefit, he manages to buy her from him, as we mentioned. In every situation where she belongs to the principal in the unseen and he was prevented from selling her to the agent, she is in the agent's hand and belongs to the principal, and her price is upon the principal's liability toward the agent: the nearest course is to authorize the judge to sell her and satisfy his right from her price; if she belongs to the agent, he was authorized to sell her; if she belongs to the principal, the judge sold her in fulfillment of a debt whose debtor abstained from paying. Something other than what we mentioned has been said, and this is the nearest, if Allah the Most High wills. If the agent buys her from the judge with what he has against the principal, it is valid; for he stands in the principal's place in this and resembles one who buys from him.
If he was commissioned to sell a slave and sold him on deferred payment, and the principal says: I did not authorize his sale except for cash, and the agent and the buyer believe him, the sale is vitiated, and he may demand the slave from whichever of the two he wishes if he exists, or his value if he perished. If he takes the value from the agent, he has recourse against the buyer with it; for the loss is in the buyer's hand, and liability settles upon him. If he takes it from the buyer, there is no recourse against anyone. If they both call him a liar and both claim that he authorized the sale on deferred payment, according to al-Qadi's view the principal swears and has recourse to the item if it exists; if it has perished, he has recourse for its value against whichever of the two he wishes. If he has recourse against the buyer, he has recourse against the agent for the price he took from him, and nothing else; for the agent did not deliver the sold item to him. If the agent gives his guarantee, he has no immediate recourse against the buyer; for he admits the validity of the sale and the deferral of the price, that the seller wronged him by the recourse, and that the demand for the price comes only after the term. When the term arrives, the agent has recourse against the buyer for the lesser of the value and the named price; for if the value is lesser, what he was defrauded of exceeds it, and there is no recourse for more than what one was defrauded of; if the price is lesser, the agent admits to the buyer that nothing more than it is due from him, and that the principal wronged him by taking the surplus over the price: there is therefore no recourse against the buyer for what the principal wronged him with. If one of the two calls him a liar and not the other, recourse takes place against the one believed without an oath, and the oath is imposed upon the one called a liar, with recourse according to what we mentioned. This is if the buyer admits that the agent is an agent in the sale; if he denies it, saying: you only sold me your own property, the word is his, with his oath that he does not know that he was an agent, and there is no recourse against him with anything (al-Mughni 5/63, 64).
The Hanbalis, according to the madhhab, held that if they differ over the attribute of the mandate: one saying: I authorized you the sale for cash and the purchase at five, and the other replying: rather you authorized me the sale on deferred payment and the purchase at ten, the word is the agent's: Ahmad stated this explicitly for the commenda; for he is a trusted custodian in disposal, and his word stands on its attribute, like the tailor who says: you authorized me to sew it into a qaba', and he replies: rather into a shirt (al-Mughni 5/63, 64, al-Kafi 2/255, ash-Sharh al-Kabir 5/250, al-Mubdi' 4/382, al-Insaf 5/399, Kashshaf al-Qina' 3/568, Sharh Muntaha al-Iradat 3/537, Matalib Uli an-Naha 3/482).
The jurists differed over the case where the principal mandates an agent to collect a debt owed to him, the agent claims to have collected it and that it perished, and the principal denies the collection and the loss: is the word the agent's or the principal's? The Hanafis held that the word is the agent's; for he is a trusted custodian. They said: even if he was commissioned to collect a debt from a third party and says: I collected it and handed it over to its holder, he is believed, and the debtor is discharged (al-Mabsut 19/75, al-Bahr ar-Ra'iq 7/167, Ibn Abidin 5/530, al-Hindiyya 4/181).
The Shafi'is said: if he was commissioned to collect a debt and says: I collected it, and the principal denies it: if he says: I collected it and it remains in my hand, take it, he must take it, and this disagreement has no meaning. If he says: I collected it and it perished in my hand, the word is the principal's, with his oath of not knowing of the agent's collection; for the default is the persistence of his right: this is the madhhab. It has been said: the disagreement is repelled as is their disagreement over the sale and the like. According to the madhhab, if the principal swears, he takes his right from the one who owes it, with no recourse against the agent; for the agent admitted being wronged (Rawdat at-Talibin 3/535).
The Malikis said: the agent not invested with full delegation, when commissioned to collect a right, if he says: I collected it and it perished of me, or I returned it to my principal, he is discharged toward his principal of that; for he is a trusted custodian. As for the debtor who owes the debt, he is not discharged of the debt; for it is possible that he lies in his admission and conspired with the agent over it, and the agent's testimony does not benefit him; for it is testimony upon his own act. When the debtor is compelled to pay, he has recourse against the agent, unless the loss of the debt is verified without negligence on his part: if the debtor does not know of the agent's negligence or its absence, there are two views on the recourse. Except if he establishes evidence testifying that he paid the debt to the named agent: he is then discharged as the agent is, and the property is lost upon the principal. The equivalent of evidence testifying to seeing the collection on the debtor's part is the principal's admission of the debtor's handing over to the agent. The debtor may put the principal under oath on his ignorance of the handing over to the agent and on the non-arrival of the property to him, in the absence of evidence of the debtor attesting to seeing the collection. As for the agent invested with full delegation and his like, the executor, if each of the two admits having collected the right for his principal or his ward, and then says afterwards: it perished of me, he is discharged of that; likewise the debtor is discharged of the debt, without needing to establish evidence; for full delegation granted him the admission; and the executor likewise (ash-Sharh al-Kabir with ad-Dasuqi's gloss 5/75, at-Taj wal-Iklil 4/214, Mawahib al-Jalil 7/171, Sharh Mukhtasar Khalil 6/81, 82, Tahrir al-Mukhtasar 4/295).
The jurists differed concerning the principal when he mandates someone to discharge a debt against him, the agent says: I discharged it, and the debtor denies the handing over: is the agent believed or not, and is attestation by witnesses required of him or not? The Malikis according to the well-known view, the Shafi'is according to the more apparent view and the Hanbalis according to the madhhab held that the agent for the discharge of a debt, if he says: I discharged it without having witnesses attest, and the creditor denies the handing over, guarantees the money. The creditor is believed with his oath; for he did not entrust the agent so that believing him would bind him, and because if the principal claimed the discharge he would not be believed, the default being the absence of discharge: the same applies to his substitute. If the creditor swears, he demands his right from the principal, not from the agent. The agent's word upon the debtor that he discharged it is not accepted, unless he discharged it in his principal's presence, or with evidence or a witness while swearing with him; for he is not his trusted custodian, and his word is therefore not accepted upon him in that, as if the principal claimed it.
The Malikis said: the agent for the discharge of a debt who collected the debt owed by his principal for his master without having witnesses attest upon the payer, and the payer denies it, or dies, or is absent, and his agent demands this debt out of ignorance of his principal's collection: the agent guarantees it for his negligence in not having attested; whether he is a fully delegated agent or otherwise; whether custom is attestation or its absence, or there is no custom according to the madhhab. It has been said: no liability upon him if custom is the absence of attestation; and according to the madhhab this is excepted from the rule of acting by custom. If the principal stipulated from the agent the absence of attestation, no liability is upon him. The locus of liability is when the handing over did not take place in the principal's presence; if it took place in his presence, there is no liability upon the agent for the absence of attestation, and the misfortune of what was collected falls upon the principal for his negligence in not having attested. The sale is like the debt in this: as if he was commissioned to sell a thing and did not have witnesses attest upon the buyer the collection, the pledge, the deposit or the like (ash-Sharh al-Kabir with ad-Dasuqi's gloss 5/73, 74, at-Taj wal-Iklil 4/213, Mawahib al-Jalil 7/165, Sharh Mukhtasar Khalil 6/81, Tahrir al-Mukhtasar 4/295, 296).
The Shafi'is said: if he handed him money and commissioned him to discharge a debt, he must have witnesses attest the discharge; for he is ordered to take care and exercise precaution for his principal, and part of taking care is that he have it attested upon himself, lest it be demanded of him. If the agent claims to have discharged it and the debtor denies it, the agent's word is not accepted upon the debtor; for the debtor did not entrust him with the money, and his word is therefore not accepted upon him in the handing over, like the executor who claims to have handed the money to the child.
Is the money guaranteed for the principal? This is examined: if he acted in the principal's absence and had two witnesses attest, and the witnesses then died or became corrupt, he does not guarantee; for he was not negligent. If he did not have them attest, he guarantees; for he was negligent. If he had a single witness attest, there are two views: one, he does not guarantee; for a witness along with the oath is evidence. The other, he guarantees; for he was negligent in limiting himself to contested evidence. If he was in the principal's presence and had attestation made, he does not guarantee; if he did not have attestation made, there are two views: one, he does not guarantee; for the negligent one is the principal, who was present and left off the attestation; the other, he guarantees; for leaving off attestation establishes liability, and its ruling does not fall away by the principal's presence, as if he destroyed his own property while present (al-Muhadhdhab 1/356, Rawdat at-Talibin 3/536, Mughni al-Muhtaj 3/222, 223, Nihayat al-Muhtaj 5/71, an-Najm al-Wahaj 5/71, ad-Dibaj 2/330, Kanz ar-Raghibin 2/877).
Ibn Qudama, may Allah have mercy on him, said: a question: if he ordered him to hand money over to a man and he claims to have handed it over to him, his word is not accepted upon the one giving the order except with evidence. The summary: when a man mandates an agent to discharge his debt and hands him money to pay it, and the agent claims the discharge of the debt and the handing over of the money to the debtor, his word is not accepted upon the debtor except with evidence; for he is not his trusted custodian, and his word is therefore not accepted upon him in the handing over, as if the principal claimed it. If the debtor swears, he may demand payment from the principal; for his liability is not discharged by the handing over of money to his agent.
If he handed it over, does the principal have recourse against his agent? This is examined: if he discharged it without evidence, the principal has recourse against him if he discharged it in his absence. Al-Qadi said: whether he believes him or calls him a liar; and this is the view of al-Shafi'i; for it is an authorization for discharge, by which discharge takes place, and it did not take place.
According to Ahmad, may Allah have mercy on him: he has no recourse against him with anything, unless he ordered him to have attestation made and he did not do so. According to this report, if the principal believes him in the handing over, he has no recourse against him with anything; if he calls him a liar, the word is the agent's, with his oath; and this is the view of Abu Hanifa; for he claims to have performed what his principal ordered him: his word would stand if he were ordered to sell his garment and claimed that he sold it. The first view holds that he was negligent in leaving off attestation and guaranteed, as if he had been negligent in selling without the price of the like. If it is asked: why then is he ordered to have attestation made? We say: the absolute command of discharge requires it; for the discharge is established only by that, and it becomes like the command of selling and buying: custom requires it, not generality. The second view allows the acceptance of his word in the discharge, and the guarantee binds him only for his negligence, not for the rejection of his word. On this basis, if the discharge takes place in the principal's presence, the agent does not guarantee; for his leaving off precaution and attestation is the principal's satisfaction with what his agent did. Likewise if he authorized him to discharge without attestation: no liability upon him; for the explicit meaning of his word takes precedence over what the indication of the situation requires. Likewise if he had witnesses attest the discharge who died or were absent: no liability upon him, for lack of negligence. If he had someone attest whose testimony is contested for establishing the right, such as a single witness, or a man and two women: does he escape liability? Two reports are drawn from this. If the agent and the principal differ, he saying: I discharged the debt in your presence, and the principal denying it; or: you authorized me to discharge it without evidence, and the principal denying it; or: I had witnesses attest the discharge who died, and the principal denying it: the word is the agent's; for the default is with him (al-Mughni 5/65, 66, al-Kafi 2/249, ash-Sharh al-Kabir 5/246, al-Mubdi' 4/380, al-Insaf 5/395, 396).
The Hanafis, the Malikis according to one view, the Shafi'is contrary to the more apparent view and the Hanbalis according to a report held that if the agent paid his principal's debt without having attestation made, and the debtor then denies it, he does not guarantee. The Hanafis said: even if he was told: pay it with witnesses, or in so-and-so's presence, and he paid it without witnesses and not in so-and-so's presence, unless the principal says: do not pay it except with witnesses, or in so-and-so's presence, and he discharges it without witnesses nor in his presence: he then guarantees, as with the agent for sale.
They said: this is when he is a man of high standing whom people respect by refraining from contradicting him; if he is of low standing, he is not a contradictor; for he stipulated a condition of no effect which the one ordered is not bound to observe, even if he emphasized it by negation: as when he says: do not sell except for a thousand, or: do not sell except on deferred payment, and he sells for two thousand or for cash: it is permitted; for it gives no root at all. Among this is: do not sell it in such-and-such market, and he sold it in another: it is carried out; and if he said: do not sell it except in such-and-such market, it is not carried out; that is, where desires differ.
They said: when the debtor hands his money over to a man to discharge his debt, and the debtor says to him: hand this money over to so-and-so in discharge of what he has against me, and take the receipt, if he paid without taking the receipt.