Islamic Fiqh > Companies and leases > Wakala (agency mandate) > The first pillar: the formula
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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 chapter sets out the pillars of the contract of agency (wakala) according to the four schools: the formula by which the mandate is expressed, the question of immediate versus delayed acceptance, the agent's knowledge of the mandate, and the suspension of the mandate upon a condition or its attachment to a term. It then addresses the nature of the contract, revocable or binding, and the cases in which revocation is excluded, before turning to the second pillar, the principal, his conditions and the persons whose mandate is discussed, and then the third pillar, the agent.
The jurists agree that the formula is a pillar of the mandate; it consists of the offer and the acceptance. The offer comes from the principal when he says: "I appoint you for such a thing", "do such a thing", or "I authorize you to do such a thing", and the like. The acceptance comes from the agent when he says: "I accept", or whatever serves in its place; as long as the offer and the acceptance have not taken place, the contract is not concluded.
This contract requires the offer like sale and hire, for it attaches to each of the two contracting parties a right of his own; it also requires that no one dispose of the property of another without being authorized to do so.
The Hanafis say: this is why, if someone appoints another to collect his debt and the agent refuses to accept, then goes and collects it, the debt is not discharged; for the contract is perfected only by the offer and the acceptance, and each of the two may retract while the other does not yet exist, as in sale and the like (Bada'i' as-Sana'i' 6/20, al-Bahr ar-Ra'iq 7/140, Ibn Abidin 7/266).
The Shafi'is say: acceptance is required in the mandate, to the point that if the agent declines, saying "I do not accept" or "I will not do it", the mandate falls. If he then regrets it and wishes to act, that is not permitted to him; he rather needs a new authorization, for the mandate is a revocable contract that terminates definitively by revocation, and so its retraction from the outset is all the more fitting (Rawdat at-Talibin 3/498).
The Hanbalis say: if the agent refuses to accept the mandate, it is as if he stepped aside of his own accord; he may therefore be compelled to retract (Kashshaf al-Qina' 3/539).
The jurists however differed: does the formula require a specific wording, or is the mandate concluded by anything that indicates it, word or deed, or is the wording of delegation necessary?
The majority of jurists, namely the Hanafis according to the madhhab, the Shafi'is and the Hanbalis, hold that the mandate requires no specific wording: it is concluded by any expression indicating an authorization that presupposes consent, as when he says "I appoint you", or orders him to do a thing, or says "I authorize you to do it", "I delegate it to you", "you are my agent in this", "I set you in my place", "I appoint you", "I would like you to sell my slave", "I accept", "I wish", or "I want": it is indeed an appointment. The Prophet, peace and blessings of Allah be upon him, appointed 'Urwa ibn al-Ja'd to buy a sheep with the very wording of purchase, and Allah the Most High, reporting about the people of the cave, says:
"So send one of you with this silver coin of yours to the city, and let him see which is the best food, and bring you a provision from it."
Surah al-Kahf, 19
for it is an expression indicating the authorization, and it takes the place of "I appoint you".
According to one opinion of the Hanafis, by contrast, the mandate is valid only by the wording by which the mandate is expressly established, such as "I appoint you to sell my slave", or "to buy such a thing" (al-Jawhara an-Nayyira 3/467).
As for the acceptance, the Hanafis, the Shafi'is according to the madhhab and the Hanbalis hold that it requires no verbal formula: it is valid by any expression indicating it and by any act, for the mandate is a permission and a lifting of legal incapacity, resembling the permission to eat; it is therefore valid by any act indicating acceptance, such as acting upon and disposing of what he was ordered to do, for those whom the Prophet, peace and blessings of Allah be upon him, appointed are known only by their compliance with his command.
According to one opinion of the Shafi'is, the acceptance is required to be verbal; and according to a third opinion of their school, if he produces a wording of contract, such as "I appoint you" or "I delegate to you", it is required; if he produces a wording of command, such as "sell" or "buy", it is not required.
Writing and a letter suffice in the mandate (Bada'i' as-Sana'i' 6/20, al-Bahr ar-Ra'iq 7/140, al-Jawhara an-Nayyira 3/467, Ibn Abidin 7/266, Rawdat at-Talibin 3/498, al-Bayan 6/405-406, al-Wasit 4/295, Mughni al-Muhtaj 3/201, Nihayat al-Muhtaj 5/31, an-Najm al-Wahhaj 5/38, Kanz ar-Raghibin 2/851, ad-Dibaj 2/309, al-Mughni 5/54, al-Mubdi' 4/356, al-Furu' 4/260, Kashshaf al-Qina' 3/538, Sharh Muntaha al-Iradat 3/501-502, Manar as-Sabil 2/162, ar-Rawd al-Murbi' 2/57).
The Malikis, for their part, hold that the mandate is not restricted to a formula expressed by word, deed or sending: the ruling on this belongs to custom. The mandate is thus conditional upon the principal's words being accompanied by what indicates, according to custom, the object of the mission, or upon the object being known by an explicit text or by usage. Among the usages: the husband managing his wife's property while she, being aware, remains silent, or the brother doing likewise for his brother: an appointment is presumed, and his act and his word stand until a prohibition is established against the one disposing, on the part of the owner of the property. Likewise, if an income exists between a brother and a sister, and the brother manages its lease and collection for long years, his word prevails when he affirms that he paid his sister the share due to her from the rent: he is an agent by custom.
Enters into what custom indicates the gesture of the mute, and writing is valid, according to what al-Bukhari reported in suspended form (mu'allaq) in the chapter titled "The agency of the witness and the absent person is valid":
Abdallah ibn Amr wrote to his steward, while he was absent, to pay the zakat on behalf of his family, small and great.
Reported by al-Bukhari (2/809)
What custom does not indicate as a formula, even though language indicates it, is not part of the formulas of the mandate: it is therefore not valid by the bare expression "I appoint you", for custom attaches no meaning to it so long as no delegation or specification intervenes. When the principal says to his agent "I appoint you" or "so-and-so is my agent", this does not benefit him and constitutes an invalid mandate; he must rather say: "I delegate all my affairs to you", "I set you in my place", or the like, or specify a particular mission, such as a marriage or a purchase.
If the principal's wording is general, custom particularizes it: if he says "I appoint you to sell my mounts", and custom requires restricting this to certain kinds of mounts, it is so restricted. Likewise if he says "I appoint you to sell this merchandise": the wording is general as to its sale in any place and any time; if custom holds that this merchandise is sold only in a specific market or a specific season, the generality is particularized. Likewise, if the object of the mandate is absolute, custom restricts it: if he says "buy for me", this is restricted to what befits him, and the agent does not go beyond what he was appointed for.
This holds whether the object is determined by an explicit text, particularized, or restricted, particularization and restriction operating through custom.
The acceptance of the agent must occur at once; if he delays his acceptance, two opinions conflict, and it has been said: the reality of the matter goes back to custom: is what is intended by the wording its immediate answer or not? (ash-Sharh al-Kabir with the hashiya of ad-Dasuqi 5/57-58, al-Muqaddimat al-Mumahhadat 3/52, at-Tawdih 6/384, at-Taj wa-l-Iklil 4/199-200, Mawahib al-Jalil 7/146 and 7/148, Tahbir al-Mukhtasar 4/281, Sharh Mukhtasar Khalil 6/70-71, Minah al-Jalil 6/638, Hashiyat as-Sawi upon ash-Sharh as-Saghir 8/70).
Immediate acceptance is valid without dispute among the jurists; they differ, however, if acceptance is delayed beyond the session.
The Shafi'is according to the madhhab, the Hanbalis and the Malikis according to one opinion hold that delayed acceptance is also valid: for example, he learns that a man appointed him a year ago to sell a thing, and then sells it, or says "I accept", or is ordered to do a thing and does it after a long time. The agents of the Prophet, peace and blessings of Allah be upon him, indeed accepted their mission by their deeds, delayed with respect to his appointment; the mandate is moreover an authorization to dispose, and the authorization stands so long as it is not withdrawn, like a bare permission. The mandate is also valid with an object known or unknown, nonexistent or existing: if he appoints him to establish a specific right or for a specific lawsuit, it is valid; if he appoints him to collect all his rights, to establish them, to conduct his lawsuits and to receive what is due to him and what will become due thereafter, it is valid; everything valid with a known or unknown object admits delayed acceptance, like the bequest (ash-Sharh al-Kabir with the hashiya of ad-Dasuqi 5/57-58, al-Muqaddimat al-Mumahhadat 3/52, at-Tawdih 6/384, at-Taj wa-l-Iklil 4/199-200, Mawahib al-Jalil 7/146 and 7/148, Tahbir al-Mukhtasar 4/281, Sharh Mukhtasar Khalil 6/70-71, Minah al-Jalil 6/638, Hashiyat as-Sawi 8/70).
The Malikis according to one opinion and the Shafi'is according to one view hold, by contrast, that delayed acceptance is not valid: the mandate is a contract concluded during one's lifetime that requires acceptance, and acceptance must therefore be immediate, as in sale (Mawahib al-Jalil 7/146 and 7/148, Sharh Mukhtasar Khalil 6/70-71, Hashiyat as-Sawi 8/70, Rawdat at-Talibin 3/498, al-Bayan 6/405-406, al-Wasit 4/295, Mughni al-Muhtaj 3/201, Nihayat al-Muhtaj 5/31, an-Najm al-Wahhaj 5/38, Kanz ar-Raghibin 2/851, ad-Dibaj 2/309, al-Mughni 5/54, al-Mubdi' 4/356, al-Furu' 4/260, Kashshaf al-Qina' 3/538, Sharh Muntaha al-Iradat 3/501-502, Manar as-Sabil 2/162, ar-Rawd al-Murbi' 2/57).
The jurists differed concerning the agent: is his knowledge of the mandate a condition of its validity or not? And is his disposition valid if he is appointed without having knowledge of it?
The Hanafis hold that the agent's knowledge is required for the validity of the mandate. If a man appoints someone to divorce his wife while the agent is absent and knows nothing, and he divorces her, the divorce is invalid; if he appoints him to buy a thing and he buys it without knowing of his appointment, the purchase is invalid; the same applies to all other contracts. The mandate is indeed not established before the agent has knowledge of it, as in dismissal, which takes effect only from the dismissed person's knowledge of it; and this because the effect of address does not attach to the addressee until he has knowledge of it.
The agent is indeed the substitute of the principal, expressing his interests in the dispositions made on his behalf, and this is realized only through his knowledge; unlike the executor who would dispose after the death of the testator before having knowledge of the bequest: his disposition is executed by juridical preference (istihsan).
If someone appoints an absent man as executor, that is, makes him his executor after his death, the testator dies, and the executor sells a part of the estate before having knowledge of the executorship and of the death, his sale is permitted by istihsan and counts as acceptance of the charge, so that he can no longer withdraw from it. Analogy would require prohibition; the difference lies in the fact that the executor is the successor of the testator, standing in his place as the heir stands in the place of the deceased, for executorship is a succession of which he is the deputy; its time moreover comes after the extinction of the testator's authority, realized by his death, and this was permitted only out of necessity: the need arising from the testator's death is redirected, by analogy, to the one who disposes. Here, by contrast, the mandate is a delegation, and the principal remains able to dispose himself: there is no need to establish the effect of the mandate before the agent has knowledge of it.
Likewise, if the heir sells the deceased's estate after his death without knowing that he has died, his sale is permitted; the same applies to the executor, unlike the appointment, for the latter is a command of the principal, and the effect of a command binds only after knowledge or its means, as stated above.
Once the condition of knowledge of the appointment is established, if the appointment takes place in the presence of the principal, or if the principal writes him a letter that reaches him and whose content he knows, or sends him a messenger who delivers the letter, or if two men inform him of the appointment, or one just man (adl), he becomes an agent by consensus; if he is informed of it by a single man who is not just and he believes him, he becomes an agent; if he does not believe him, al-Kasani said that the ruling should follow the disagreement over integrity: according to Abu Hanifah he does not become an agent, according to Abu Yusuf and Muhammad he does, as in dismissal (Bada'i' as-Sana'i' 6/20-21, al-Mabsut 19/127, al-'Inaya 10/358-359, Majma' al-Anhar 3/307, Ibn Abidin 7/48).
The Shafi'is according to the soundest view and the Hanbalis hold that the agent's knowledge is not required: if the agent disposes before having knowledge of the mandate, and then it appears that he had been appointed, his disposition is valid (Rawdat at-Talibin 3/498, Hashiyat Qalyubi and 'Umaira 2/851).
The Hanbalis say: the agent's knowledge is not a condition of the validity of the mandate; if someone, for instance, appoints a man to sell a house without his knowing it, and he sells it as an unauthorized manager, and then it appears that he had been appointed for this sale, his sale stands; for contracts consider the reality of the command itself and not the assumption of the accountable person (Kashshaf al-Qina' 3/538, Sharh Muntaha al-Iradat 3/502, Manar as-Sabil 2/162).
The scholars distinguished two situations.
The first: the mandate is concluded at once, but the principal suspends the agent's act upon a condition, as when he says: "I appoint you to sell my house, but do not sell it before the beginning of the month". This mandate is valid without dispute among the jurists: he concluded the contract of mandate in advance and suspended only the act, making the beginning of the month the time of the sale. The agent therefore sells only once the condition is fulfilled; he becomes an agent upon the arrival of the term and thereafter, not before.
The second: the mandate itself is suspended upon a condition, when he says: "if Zayd arrives, or at the beginning of the month, or when the pilgrims come, I have appointed you to sell my house", or "you are my agent", or "if my family asks you for something, hand it over to them".
The jurists differed on the ruling of this suspension: is the mandate valid or not? The majority of jurists, namely the Hanafis, the Malikis, the Shafi'is against the soundest view of their school and the Hanbalis, hold that suspending the mandate upon a valid condition is permitted: "if Zayd arrives, you are my agent to sell my house", "when winter comes, buy us coal", "at Eid al-Adha, buy us a sacrificial animal", "if my family asks you for something, hand it over to them", "when Ramadan enters, I have appointed you for this" or "you are my agent". The Prophet, peace and blessings of Allah be upon him, said:
"If Zayd is killed, then Ja'far; and if Ja'far is killed, then Abdallah ibn Rawaha."
Reported by al-Bukhari (4013)
and the matter at hand is its equivalent. For it is a contract whose rule is considered with respect to the agent, namely the permission to dispose and its validity, and so it is sound; as if he said "you are my agent to sell my slave when the pilgrims arrive". And if one says "I appoint you to buy such a thing at such a time", it is valid without dispute, and the dispute concerns precisely its equivalent. It is further an authorization to dispose resembling the bequest and the command; and it is a contract valid without a fee (ju'l), which does not require the one performing it to be a close relative.
The Hanafis say that the pillar of appointment is at times absolute, that is, neither suspended upon a condition, nor attached to a term, nor restricted by a limit, and at times suspended upon a condition. If one says, for instance: "I appoint you to sell my horse when such merchant arrives here", and the agent accepts, the mandate is concluded suspended upon the merchant's arrival: when the merchant arrives, the agent has the right to sell that property, for what is suspended becomes established once the condition becomes established; if the merchant does not come, the agent has no right to sell that property, for suspension prevents the suspended thing from being a cause of the legal effect. If one said "I appoint you to sell my horse", that speech is a cause of establishing the mandate at once and of the agent's capacity to sell the horse immediately; but if he says "I appoint you to sell my horse when such merchant arrives here", the suspension prevents the mandate from being a cause at once, and the establishment of the mandate depends on the fulfilment of the condition, that is, it is deferred to the merchant's arrival; once the condition exists, the speech uttered becomes a cause of the mandate.
At times the mandate is attached to a term: if one says "I appoint you to sell my mounts in such a month" and the agent accepts, he becomes an agent upon the arrival of that month and may sell the mounts during that month or after; before its arrival, he may not sell.
At times it is restricted by a limit: if one says "I appoint you to sell this watch of mine for a thousand dirhams", the agent's mandate is restricted by the absence of sale for less than a thousand dirhams (al-Mabsut 19/7, Bada'i' as-Sana'i' 6/20, Sharh Fath al-Qadir 7/501, al-Bahr ar-Ra'iq 6/206, Durrar al-Hukkam 3/543 and 3/545, al-Mughni 5/55, Ighathat al-Lahfan 2/15-16, I'lam al-Muwaqqi'in 3/343, Kashshaf al-Qina' 3/539, Sharh Muntaha al-Iradat 3/501).
The Shafi'is according to the soundest view hold that suspending the mandate upon a condition is not valid: it is a contract invalidated by uncertainty, and so it cannot be suspended upon a condition, like sale and hire; it differs in this from the bequest, which the risk of uncertainty does not invalidate, so that the risk of the condition does not invalidate it either; the mandate, by contrast, is invalidated by uncertainty, and therefore by the condition.
However, if he suspends it upon a future condition, and the condition is fulfilled and the agent disposes, his disposition is valid according to the soundest view of the school: the authorization stands despite the invalidity of the contract, and his disposition, made with authorization, is thus valid. It is like the one who stipulates in the mandate an unknown counter-value, saying "sell such a thing on condition that you receive a tenth of its price": the mandate is defective, but if he sells, the sale is valid; if he had specified a ju'l, the specified fee falls and he is owed the wage of the equivalent (ujrat al-mithl), for he worked in a defective contract that did not admit remuneration without a counter-value, so that the wage of the equivalent is due, like work under a defective hire; just as the defective condition in a defective marriage corrupts the stipulated dowry and entails the equivalent dower without affecting the validity of the marriage.
According to the view opposing the soundest one, the disposition is not valid because of the defectiveness of the contract, and the authorization contained in the defective contract has no regard: do you not see that if he sells in a defective manner and delivers the thing sold, it is not permitted for the buyer to dispose of it, even though the sale and the delivery contain an authorization to dispose and a handing over (al-Hawi al-Kabir 6/500, al-Muhadhdhab 1/350, Nihayat al-Matlab 7/36, al-Bayan 6/410-411, ash-Sharh al-Kabir of ar-Rafi'i 5/221-222, Rawdat at-Talibin 3/449, Mughni al-Muhtaj 3/202, Nihayat al-Muhtaj 5/33, an-Najm al-Wahhaj 5/40, Kanz ar-Raghibin 2/852, ad-Dibaj 2/310).
The mandate never takes but three forms: it is gratuitous; it is for a wage (ujra); or it is for an unspecified fee (ju'l); and the ruling of each differs from the other two.
The jurists differed on the nature of the contract of agency when it is gratuitous: does it belong to the revocable contracts which each of the two, agent and principal, may terminate whenever he wishes, or to the binding contracts which neither of the two may terminate without the consent of the other?
The majority of jurists, namely the Hanafis, the Malikis according to the well-known view, the Shafi'is and the Hanbalis, hold that the mandate is a revocable contract from both sides: each of the two may terminate it whenever he wishes. On the side of the principal it is an authorization; on the side of the agent, a granting of benefit; both are revocable, and each may therefore annul it, like the permission to eat one's food. The principal may indeed see an interest in abandoning what he had appointed for, or in appointing another; on the side of the agent, he may not be available: bindingness would harm both.
This being established, termination occurs when one of the two says "I terminated the mandate", "I annulled it" or "I revoked it"; the principal may say "I dismissed you", "I turned you away from it" or "I removed you from it"; the agent may say "I dismissed myself", "I turned away from it" or "I removed myself from it": he is dismissed by all of this, each expression indicating it; for it is either a revocable contract terminated by termination, or an authorization annulled by the withdrawal of the one who granted it (Bada'i' as-Sana'i' 6/38, Mukhtasar al-Wiqaya 2/177, al-Ikhtiyar 3/196, al-Jawhara an-Nayyira 3/490, al-Lubab 1/561, ash-Sharh al-Kabir with the hashiya of ad-Dasuqi 3/83, Tahbir al-Mukhtasar 4/302, at-Taj wa-l-Iklil 4/222, Mawahib al-Jalil 7/178, Sharh Mukhtasar Khalil 6/86, Minah al-Jalil 6/416, Rawdat at-Talibin 3/522, al-Bayan 6/453, Mughni al-Muhtaj 3/216, Nihayat al-Muhtaj 5/59, ad-Dibaj 2/322, an-Najm al-Wahhaj 5/63, al-Mughni 5/71, al-Insaf 5/368, Kashshaf al-Qina' 3/545-546).
The shaykh of Islam Ibn Taymiyyah, may Allah have mercy on him, says: it is a revocable contract by the agreement of the scholars, and he may terminate the contract of agency (Majmu' al-Fatawa 33/120).
Some later Malikis hold that the mandate is binding on the side of the agent, based on the binding nature of the gift (hiba) even before it is received, and revocable with respect to the principal (adh-Dhakhira 8/9, ash-Sharh al-Kabir with the hashiya of ad-Dasuqi 5/83, Tahbir al-Mukhtasar 4/302, at-Taj wa-l-Iklil 4/222, Mawahib al-Jalil 7/178, Sharh Mukhtasar Khalil 6/86, Minah al-Jalil 6/416).
The jurists who hold the mandate revocable nonetheless excepted situations in which it becomes binding, even if it were without a fee.
First case: that no right of others be attached to it. The Hanafis and the Malikis according to the well-known view have stated that the mandate becomes binding and that neither of the two may terminate it when a right of others is attached to it: dismissal is therefore not valid without the consent of the holder of the right, for dismissal annuls his right without his consent, and there is no way to that. It is like the one who leaves his property as a pledge with a man for two debts owed to him, or places it in the hands of a just man, and establishes the pledgee or the just man as charged with selling the pledge and collecting its price upon the arrival of the term: if the debtor dismisses the one charged with the sale, his dismissal is not valid.
The Hanafis say: if the debtor appoints the pledgee, the just man or another to sell the pledge upon the arrival of the term, the mandate is revocable, for it is an appointment to sell his own property; if, however, he stipulated this agency in the contract of pledge, the debtor cannot dismiss him, and if he dismisses him, he is not dismissed: stipulated in the contract of pledge, the mandate has become an attribute of the pledge and a right among its rights; do you not see that it increases the security: it is therefore binding as its root is, for the right of the pledgee attaches to it and dismissal annuls that right; the mandate becomes like the agency in litigation sought by the claimant. If he appointed him to sell in absolute terms, for cash as well as deferred payment, and then forbade him the sale on deferred payment, his prohibition is not applied: it is binding in its root, and therefore by its attribute. Likewise, this mandate is not dissolved by juridical dismissal, such as the death of the principal, his apostasy or his entry into the land of war, for the pledge is not annulled by his death; and even if it were annulled, it would be for the right of the heirs, over which the right of the pledgee takes precedence as it does over the right of the debtor; unlike the standalone mandate, annulled by death and dissolved by the dismissal of the principal. This mandate differs from the standalone mandate in several respects: the one we have mentioned; the agent, here, is compelled to sell if he refuses, unlike the standalone mandate; this one sells the child and the blood-money compensation (arsh), unlike the standalone; if he sells contrary to the species of the debt, he may convert it back into the species of the debt, unlike the standalone; and if the pledge is a slave killed by mistake by a slave, and the killer is handed over in lieu of the diya, this agent may sell him, unlike the standalone. The just man is not dismissed by the dismissal of the pledgee, for the latter did not appoint him: he is a stranger to him with respect to the agency; and if the principal dismisses him, he is not dismissed; all the more is he not dismissed by the dismissal of another (al-Jawhara an-Nayyira 3/205 and 3/490, Bada'i' as-Sana'i' 6/38, al-Ikhtiyar 3/196, al-Lubab 1/561, ad-Durr al-Mukhtar 6/503, 6/504 and 6/539, al-Bahr ar-Ra'iq 7/189, Tabyin al-Haqa'iq 6/81-82, Murshid al-Hayran 3/1384-1385, Majma' al-Anhar 3/340, al-Awsat 5/685-686).
Ibn Abidin, may Allah have mercy on him, was asked: if the debtor appoints the pledgee to sell the pledge upon the arrival of the term, is the written mandate binding, without being dissolved by dismissal? Answer: yes, the mandate is binding and is not annulled by dismissal, whether real or juridical; the question is found in at-Tanwir in the chapter on the dismissal of the agent (Tanqih al-Fatawa al-Hamidiyya 4/297).
Al-Kasani, may Allah have mercy on him, said: the shaykhs differed concerning the one who appoints a man to divorce his wife in case of absence, then dismisses him away from the presence of the wife and departs. Some say: his dismissal is not valid, for a right of the wife is attached to this mandate, which then resembles the agent in litigation. Others say: his dismissal is valid, for he is not compelled to divorce nor to appoint to that effect: his act proceeds from his choice, and he may therefore dismiss himself, as in the other mandates (Bada'i' as-Sana'i' 6/38).
The Malikis say, in Ashhal al-Madarik: if the debtor appoints the pledgee to sell the pledge, it is a valid mandate, and the debtor cannot dismiss his agent, who is the creditor, for a right is attached to this mandate. The learned al-'Adawi says in his hashiya upon al-Kharashi: when the pledgee is appointed to the sale, the debtor cannot dismiss him; he is like the trustee (amin). Al-Mawwaq reports from Ibn Rushd that he said: if the debtor obeys the pledgee, after the sale and before the arrival of the term, by selling without collusion with a holder of authority, this is permitted by agreement, for it is a thing known from him; and if the pledgee stipulates from the debtor, in the contract of sale, that he is appointed to sell without collusion of authority, it has been said that this is permitted and binding: said by the qadi Isma'il, Ibn al-Qassar, Abd al-Wahhab and Ashhab, while the Mudawwana disapproves of it. See al-Hattab (Ashhal al-Madarik 2/376, al-Ishraf 3/15 no. 872, Rawdat al-Mustibin 2/1102, adh-Dhakhira 8/121, Mawahib al-Jalil 7/141-142).
The Shafi'is and the Hanbalis hold that the debtor may dismiss the just agent. Ibn Qudamah, may Allah have mercy on him, says: if the pledge is in the hands of a just man and they stipulated that he sell it when the right falls due, this is valid, and his sale is valid: this is the view of Abu Hanifah, Malik and ash-Shafi'i. If the debtor dismisses the just man from the sale, his dismissal is valid and he may no longer sell: this is the view of ash-Shafi'i. Abu Hanifah and Malik say that he is not dismissed, for his agency has become a right of the pledge, and the debtor cannot waive it as he cannot waive his other rights.
Ibn Abi Musa, may Allah have mercy on him, says: such is directed to us likewise, for Ahmad prohibited the legal stratagem (hila) elsewhere in his writings, and this opens the door of stratagem to the debtor: he stipulates this to the creditor so that he consents, then dismisses him. The first view is the one expressly reported, for the mandate is a revocable contract: one is not bound to remain under it as in the other mandates; and its belonging to the rights of the pledge does not prevent its revocability, as if the two stipulated the sale of the pledge: it does not become binding; likewise, if the debtor dies after the authorization, the mandate lapses.
By the analogy of the school: as soon as he dismisses him from the sale, the creditor may terminate the sale for which the pledge was handed over to him, as if the debtor refused to deliver the pledge stipulated in the sale; but if it is the creditor who dismisses him, he is not dismissed, for the just man is the agent of the debtor, the pledge being his property: even if he had appointed him alone, it would be valid, and he is therefore not dismissed by the dismissal of another. His sale, however, is not permitted without the latter's authorization; likewise, if no one dismisses him and the right falls due, he does not sell before seeking the creditor's permission, for the sale is for his right and is therefore not valid without his consent. According to the letter of Ahmad's words, he does not need a renewed authorization from the debtor, for the authorization was given once and suffices, as in the mandate over the other rights. The qadi mentioned another view: he would need a renewed authorization, for he may have a purpose in the right being fulfilled by another; the first view is preferable, for the authorization suffices so long as he does not change, and the purpose has no regard alongside an explicit authorization, unlike its contrary: proof of this is that if he renews the authorization contrary to the creditor, the thing sold requires claiming the right, and the school of ash-Shafi'i is close to this (al-Mughni 4/231, al-Kafi 2/157, ash-Sharh al-Kabir 4/419, Rawdat at-Talibin 3/522).
The Hanafis say: likewise, if the defendant appoints someone to the litigation while the claimant is pursuing the defendant, and the latter dismisses his agent away from the presence of the claimant, he is not dismissed, for what has been mentioned (Bada'i' as-Sana'i' 6/38, al-Ikhtiyar 3/196, al-Jawhara an-Nayyira 3/490, al-Lubab 1/561).
The Malikis say: the agent in litigation may not dismiss himself after attending three sessions, except for an excuse, after swearing an oath that he did not dismiss himself except for that excuse; likewise, the principal may not dismiss his agent. Before his attendance at three sessions, the agent may dismiss himself, the principal may dismiss his agent, and his adversary may appoint him in turn, unless he has become an enemy of the first principal: the appointment is then not valid.
If the agent has pleaded in a case that has ended and wishes to enter another, this is valid on condition that the mandate is not specified and that the interruption between the two cases is not long: if it reaches six months, it is no longer valid. If the cases are continuous without interruption, the agent may speak on behalf of his principal, however long (ash-Sharh al-Kabir with the hashiya of ad-Dasuqi 3/54-55, Tahbir al-Mukhtasar 4/279-280, at-Taj wa-l-Iklil 4/195-196, Mawahib al-Jalil 7/133-134, Sharh Mukhtasar Khalil 6/69-70).
Dismissal in litigation is valid according to the Shafi'is (an-Najm al-Wahhaj 5/63).
Third case: if the agent knows that, were he to dismiss himself in the absence of his principal, an usurper would seize the property, it is forbidden for him to dismiss himself until the principal returns or a trustee over the property is present, by analogy with the executor; likewise if his dismissal, in the presence of the principal, entails the said seizure. The same applies if the principal knows that harm would result from the dismissal of the agent: when he is appointed, for instance, over the property of a freed client (mawla) and knows that, if the agent is dismissed, an oppressor will seize the property of the freed client; or when he is appointed to buy water for his purification, or a garment to cover himself once the time of prayer has entered, or clothing against heat or cold, whose absence leads to the blameworthy to the point of resorting to tayammum, and it is known that if the agent is dismissed this will not be possible for him: the dismissal is forbidden and is not executed (Nihayat al-Muhtaj with the hashiya of ash-Shabrampilsi 5/59, ad-Dibaj 2/322).
The jurists differed when the mandate is concluded for a known wage for a known and specified work: is it binding or revocable?
The majority of jurists, namely the Hanafis, the Malikis according to the well-known view, the Shafi'is and the Hanbalis, hold that if the mandate is concluded for a known wage upon a specified act, it is binding: neither of the two may terminate it without the consent of the other.
The Malikis say: if the mandate is concluded for a wage, even without the wording of hire, it becomes binding, as when he is charged with collecting a debt of such an amount from so-and-so for a known wage, or for unspecified work within a specified time, such as appointing him to sell merchandise within five days against such a wage due upon the expiry of the period, whether he sells or not; as for requiring a specified work and a specified time, it corrupts the hire (ach-Sharh al-Kabir with the hashiya of ad-Dasuqi 3/83, Tahbir al-Mukhtasar 4/302, at-Taj wa-l-Iklil 4/222, Mawahib al-Jalil 7/178, Sharh Mukhtasar Khalil 6/86, Minah al-Jalil 6/416).
The Shafi'is say: if the mandate is concluded for a known ju'l, gathers the conditions of hire, and is concluded with the wording of hire, it becomes binding; if it is concluded with the wording of mandate with a known ju'l stipulated in it, two interpretations are possible, according to whether one considers the forms of contracts or their meanings (Rawdat at-Talibin 3/524, Asna al-Matalib 2/278, Mughni al-Muhtaj 3/216, Nihayat al-Muhtaj 5/59, ad-Dibaj 2/322, an-Najm al-Wahhaj 5/63, Kanz ar-Raghibin 2/869).
As for the Hanbalis, Ibn Qudamah, may Allah have mercy on him, says: if the mandate is for a ju'l, the agent earns the ju'l by delivering to the principal the object of the mandate when it is deliverable, such as a garment that he weaves, shortens or sews: as soon as he delivers it worked to the principal, the wage is due to him. If the tailor is in the house of the principal, everything he does is received at once, and the agent earns the ju'l when the tailor finishes the sewing. If he is appointed to a sale, a purchase or the pilgrimage, he earns the wage as soon as he performs the act, even if he does not collect the price in the sale; if it was said "when you have sold the garment, collected its price and delivered it to me, the wage is yours", he earns nothing until he delivers it to him: if the delivery escapes him, nothing is due to him, the condition not having been fulfilled (al-Mughni 5/55).
As for the Hanafis, they say: if the wage is stipulated in the mandate and the agent fulfills the work, he earns the specified wage if it was set within a time limit, or if it is a specified work into which it is possible to enter at once; if nothing is stipulated and the agent is one of those who work for wages, he is owed the wage of the equivalent; otherwise, nothing (Murshid al-Hayran, p. 133).
It is stated in Durrar al-Hukkam, commentary of the Majalla (article 1467): if the wage is stipulated in the mandate and the agent fulfills it, he earns the wage; if it is not stipulated and the agent is not one of those who serve for wages, he is acting gratuitously and cannot claim remuneration. In a valid hire, the specified wage is earned; in a defective hire, the wage of the equivalent; see article 562.
The following questions branch off from this.