Islamic Fiqh > Companies and leases > Wakala (agency mandate) > The recurring mandate
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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.
The jurists differed on the ruling of the recurring mandate, when the principal says to the agent "each time I dismiss you, I appoint you again": is this mandate valid or not, and is the agent dismissed or not? It belongs to the category of the suspended mandate.
The Hanafis, the Shafi'is according to the soundest view and the Hanbalis hold that the recurring mandate, when the principal says to his agent "each time I dismiss you, I appoint you again" or "I appoint you, and whenever I dismiss you you are my agent", is a valid mandate, called recurring because it revolves with the dismissal; each school, however, has its own detail on this.
The Hanafis say: if the principal says to the agent "I appoint you for such a thing, on condition that whenever I dismiss you you are my agent", this is valid; and in his dismissal he says: "I dismissed you, then I dismissed you again". For the mandate may be suspended upon a condition, and therefore also upon dismissal from the mandate: when he is dismissed, he is dismissed from the concluded mandate and the suspended mandate takes effect, so that he becomes a new agent; then by the second dismissal he is dismissed from the second mandate and does not become an agent again except by a new appointment. Whoever suspends the appointment upon a condition and then dismisses him from the mandate before the condition exists, dismisses the agent, and the latter does not become an agent again with the fulfilment of the condition.
If he says "each time I dismiss you you are my agent" as a future mandate, he is dismissed by the dismissal, but becomes an agent a second time by a future mandate, as stipulated, for suspending the mandate upon a condition is permitted. According to some of them concerning the suspended appointment, he cannot dismiss before the condition exists, and the agent remains under his agency after the dismissal by a future mandate, for his agency is renewed with each dismissal, suspending the mandate upon a condition being valid; the first view is sounder, for whoever may dismiss in the case of the concluded thing may do so all the more in the suspended thing.
The way to dismiss him is to say "I dismiss you from all mandates", which extends to the suspended and the concluded mandate; for were we not to admit this, it would lead to changing the rule of the Law by making the mandate a binding contract, and that is invalid. Or else he says: "I withdraw from the suspended mandate and dismiss you from the concluded one"; for were he to dismiss him from the concluded mandate without withdrawing, he would become an agent as he was, even if he were dismissed a thousand times: the word "each time" indeed requires the repetition of acts without limit, so that the dismissal has no effect except after the withdrawal; even if he were dismissed and one then withdrew from the suspended mandate, another dismissal would be needed, for each dismissal makes him an agent, and the withdrawal from the suspended mandate then has no further effect upon it, since another dismissal would be needed after the withdrawal. It has also been said that he says in his dismissal: "each time I appoint you, you are dismissed"; for whenever he becomes an agent, he is dismissed, and the purpose is thereby achieved; the first view is stronger, for this expression in reality has no effect: he is dismissed whenever he is appointed by virtue of the second oath through the appointment itself, and dismissed whenever he is dismissed by virtue of the first oath, remaining forever a dismissed agent, with no interruption except by the withdrawal from the suspended mandate, as we have established (al-Mabsut 19/7, Bada'i' as-Sana'i' 6/38, Sharh Fath al-Qadir 7/501, Tabyin al-Haqa'iq 6/224, al-Bahr ar-Ra'iq 8/552, Ibn Abidin 7/382, al-Fatawa al-Hindiyya 6/328, Durrar al-Hukkam 3/657).
The Shafi'is say: if the principal says to the agent "I appoint you and, whenever I dismiss you, you are my agent in this", or "I appoint you (recurring)", the mandate is valid at once according to the soundest view, for the authorization exists from the outset; according to the view opposing the soundest one, it is not valid, for it may contain the condition of perpetuity, that is, the bindingness of a revocable contract.
According to the soundest view, his return as agent after the dismissal involves two views based on the validity of the suspension, for he suspended the second mandate upon the dismissal; the sounder of the two is the absence of return, the soundest view being the invalidity of the suspension, but his disposition is executed by virtue of the authorization. The way to make his disposition not executed is to repeat the dismissal, saying "I dismissed you, I dismissed you": if the suspension bears on "each time", the return repeats with the repetition of the dismissal and his disposition is executed; the way for it not to be executed is to appoint another in his dismissal, the suspended object being his own dismissal, unless he had said "if I dismiss you, or if someone dismisses you on my behalf": appointment through dismissal then does not suffice, and one must say "each time you become my agent again, you are dismissed", which prevents his disposition.
If it is objected: since his disposition is executed despite the invalidity of the mandate, what is the benefit of its validity? The answer is that the benefit lies in the stability of the specified ju'l if it differs from the defective case: the latter falls and the wage of the equivalent is due, just as the defective condition in marriage corrupts the specified dowry and entails the equivalent dower without affecting the validity of the marriage. According to the other view, namely the one opposing the soundest one, the mandate returns once. The point of disagreement: when he dismisses him and he has knowledge of his dismissal; or one says that he is dismissed before having knowledge, otherwise he remains under his first agency. The two views also apply to the suspension of the mandate in the suspension of the dismissal, as when he says "when the sun rises, you are dismissed": the sounder of the two views is invalidity, so that he is not dismissed by its rising, and though not dismissed, he is prevented from disposing; it has also been said that he is not prevented (Nihayat al-Matlab 7/36, ash-Sharh al-Kabir of ar-Rafi'i 5/221-222, Rawdat at-Talibin 3/449, Mughni al-Muhtaj 3/202-203, Nihayat al-Muhtaj 5/33, an-Najm al-Wahhaj 5/40-41, Kanz ar-Raghibin 2/853, ad-Dibaj 2/311).
The Hanbalis say: if the principal says to his agent "each time I dismiss you, I appoint you again", this is a recurring mandate, so named for its revolving upon dismissal: each time he is dismissed, he becomes an agent again, and it is valid because suspending the mandate is valid. The agent in the recurring mandate is dismissed by the principal's saying "I dismissed you", and by "each time I appoint you, I dismiss you" only, not by "I dismissed you" alone, the latter not dismissing him; for "each time I appoint you, I dismiss you" is a termination suspended upon a condition, namely the appointment, and the suspended termination is valid; on this basis, he does not become an agent if appointed after the recurring dismissal: as soon as he becomes an agent, he is dismissed; if one then says to him "I appoint you for such a thing", his disposition is not valid, because of the dismissal suspended upon the existence of the mandate (al-Mubdi' 4/363, al-Insaf 5/368, Kashshaf al-Qina' 3/546, Sharh Muntaha al-Iradat 3/518-519).
The shaykh of Islam Ibn Taymiyyah, may Allah have mercy on him, holds that the recurring mandate is not valid: it leads to revocable contracts becoming binding, and that is a change of the rule of the Law; nor is that the intention of the one who suspends: he intends to refrain from appointing and to annul it before it occurs, and contracts are not terminated before their conclusion (al-Qawa'id of Ibn Rajab 308, al-Mubdi' 4/363, al-Insaf 5/368).
The principal is the one who sets another in his place in a permitted and known disposition. The jurists required of him that he be one of those who can perform themselves what they appoint for, for the mandate is the delegation to another of what one may dispose of oneself: what one cannot do oneself, how could it bear being delegated to another? On this basis, the jurists agree that the mandate is not valid from the insane, the unconscious or the child lacking discernment, the intellect being a condition of legal capacity: they cannot dispose of themselves, and if the root cannot act, its deputy cannot all the more.
The jurists then differed concerning the discerning child: are masculinity, probity or Islam required in some cases of the mandate or not? According to the following detail.
The jurists differed concerning the discerning child not yet pubescent: is his appointment valid or not? The majority of jurists, namely the Hanafis, the Malikis and the Hanbalis, hold that the appointment of the discerning child involves three cases.
The Hanafis and the Hanbalis according to one transmission hold that, if he is authorized to trade, his appointment therein is valid, for he can do it himself; if he is under interdiction (mahjur), the mandate is concluded in suspension of his guardian's ratification and of the guardian's authorization for trade as well, as when he acts himself, its conclusion benefiting from the present existence of the one able to ratify, namely the guardian.
Al-Kasani, may Allah have mercy on him, says: the appointment by the discerning child is not valid in what he cannot do himself, such as divorce, manumission, the gift and charity and similar purely harmful dispositions, and it is valid in the effective dispositions, such as accepting a gift and charity without the authorization of the guardian, for it is what he can do without his guardian's authorization and may therefore delegate to another by appointment; as for the dispositions oscillating between harm and benefit, such as sale and hire, if he is authorized to trade, his appointment therein is valid, for he can do it himself; if he is under interdiction, it is concluded in suspension of his guardian's ratification and of the guardian's authorization for trade as well, as when he acts himself, its conclusion benefiting from the present existence of the one able to ratify, namely the guardian (Bada'i' as-Sana'i' 6/20, Tuhfat al-Fuqaha 2/36, al-Ikhtiyar 2/189, al-Bahr ar-Ra'iq 7/140, Hashiyat Ibn Abidin 7/267, Durrar al-Hukkam 3/544-545).
The majority of jurists, namely the Malikis, the Shafi'is and the Hanbalis according to the madhhab, hold that the mandate is valid only from one whose disposition is valid: whoever may dispose for himself of a thing may have himself substituted in what admits delegation; majority is therefore required of the principal, for the child not yet pubescent is under interdiction and therefore cannot appoint (ash-Sharh al-Kabir with the hashiya of ad-Dasuqi 5/4, adh-Dhakhira 8/5, Mawahib al-Jalil 7/52 and 7/54, at-Taj wa-l-Iklil 4/140, Sharh Mukhtasar Khalil 6/39, Tahbir al-Mukhtasar 4/238, al-Fawakih ad-Dawani 2/127, Hashiyat al-'Adawi 2/278, ash-Sharh as-Saghir with the hashiya of as-Sawi 7/481, al-'Ubab 684, al-Wasit 4/293, Rawdat at-Talibin 3/495, Mughni al-Muhtaj 3/193, Nihayat al-Muhtaj 5/18, an-Najm al-Wahhaj 5/24, ad-Dibaj 2/303, Kanz ar-Raghibin 2/843, I'anat at-Talibin 3/161).
The Hanbalis according to the madhhab say: the appointment of the discerning child, with the authorization of his guardian, is valid in every disposition in which majority is not required, based on the validity of his disposition with that authorization (al-Mughni 5/51, ash-Sharh al-Kabir 5/204, al-Insaf 5/345 and 5/355, Kashshaf al-Qina' 3/539, Sharh Muntaha al-Iradat 3/504, Matalib Uli an-Nuha 3/433).
The principal must be of sound mind according to the majority of jurists; they differed concerning the prodigal (safih): may he appoint another or not? The majority, namely the Malikis, the Shafi'is and the Hanbalis, hold that the prodigal under interdiction may appoint in the dispositions he may perform independently, not in those he may not perform independently.
The Shafi'is say: the appointment of the prodigal is valid in the dispositions he may perform independently, such as the appointment for the acceptance of marriage, and is not valid in what he may not perform independently, such as matters of property, except after the authorization of the guardian (Rawdat at-Talibin 3/496, al-Bayan 6/402-403, Mughni al-Muhtaj 3/193 and 3/195, Nihayat al-Muhtaj 5/18, ad-Dibaj 2/303, I'anat at-Talibin 3/161, Asna al-Matalib 2/265).
The Hanbalis say: the one under interdiction for prodigality may appoint only in what he may do himself: divorce, khul', seeking retaliation and the like. No appointment in sale or manumission is valid from one whose disposition is not valid in that thing: one whose disposition for himself is not valid cannot appoint another, so that the appointment of the prodigal to manumit his slave is not valid (al-Mughni 5/51, ash-Sharh al-Kabir 5/204, al-Insaf 5/345 and 5/355, Kashshaf al-Qina' 3/539, Sharh Muntaha al-Iradat 3/504, Matalib Uli an-Nuha 3/433).
The Malikis say: the appointment from the prodigal is not valid, and the principal must be pubescent and of sound mind, for the prodigal is under interdiction, cannot dispose for himself, nor appoint another to that effect; his appointment, however, is valid for divorce, for he has disposal over it, his divorce takes place, and his appointment therein is therefore valid (al-Mudawwana al-Kubra 5/25, ash-Sharh al-Kabir with the hashiya of ad-Dasuqi 5/4, adh-Dhakhira 8/5, Mawahib al-Jalil 7/52 and 7/54, at-Taj wa-l-Iklil 4/140, Sharh Mukhtasar Khalil 6/39, Tahbir al-Mukhtasar 4/238, al-Fawakih ad-Dawani 2/127, Hashiyat al-'Adawi 2/278, ash-Sharh as-Saghir with the hashiya of as-Sawi 7/481, al-Bahja fi Sharh at-Tuhfa 2/352, Minah al-Jalil 3/369).
As for the Hanafis, one of the conditions of the principal in their view is that he be one of those who can perform themselves what they appoint for: the principal therefore cannot be a prodigal according to Abu Yusuf and Muhammad, for they ruled the interdiction of the prodigal and the non-execution of his disposition, so that he cannot appoint; according to Imam Abu Hanifah, by contrast, the dispositions of the prodigal are effective: the principal can therefore be a prodigal according to him, since he is not under interdiction in his dispositions; the question was set out earlier in our book in the chapter on interdiction, "The interdiction of the pubescent prodigal" (al-Mabsut 24/157-158, Bada'i' as-Sana'i' 7/171, al-Ikhtiyar 2/115-116, al-Jawhara an-Nayyira 3/244 and 3/246, al-Lubab 1/444-445, Mukhtasar al-Wiqaya 2/410, al-Hidaya 3/282, Tabyin al-Haqa'iq 5/195, al-Bahr ar-Ra'iq 8/91, Majma' ad-Damanat 2/899).
Al-'Umrani, Shafi'i, may Allah have mercy on him, says: as for the one interdicted for insolvency, he may not appoint another to sell the properties of his patrimony, but he may appoint one who buys for him against a price charged to his liability, for he can do that himself and therefore has the capacity of appointment to that effect (al-Bayan 6/403).
An-Nawawi, may Allah have mercy on him, says: as for the one interdicted for insolvency, his appointment is valid in the dispositions he may perform independently, and is not valid in what he may not perform independently, except after the authorization of the creditor (Rawdat at-Talibin 3/496).
The principal must, according to the generality of jurists, as stated earlier, be able to perform himself what he is appointed for, the mandate being the delegation to another of what one may dispose of oneself: what one cannot do oneself, one cannot appoint another to that effect. The jurists therefore differed on the marriage of the woman by herself. Those who say that she may marry herself (Imam Abu Hanifah, Zufar and al-Hasan, the apparent view of the transmission from Abu Yusuf) say that she may appoint another for her marriage: the woman may indeed conclude the marriage contract herself, whether she marries herself or another, and may therefore appoint the one who will marry her, the condition of the principal being to be able to perform himself what he appoints for, and she has that capacity (Mukhtasar Ikhtilaf al-'Ulama' of at-Tahawi 2/350, al-'Inaya 4/402-403, al-Jawhara an-Nayyira 4/284 and 4/286).
Al-Mawsili, Hanafi, may Allah have mercy on him, says: the word of women is taken into account in marriage, to the point that if the free, sane, pubescent woman marries herself, this is permitted; likewise if she marries another by guardianship or by agency; and likewise if she appoints another for her marriage, or another marries her and she ratifies: this is the view of Abu Hanifah, Zufar and al-Hasan, and the apparent view of the transmission from Abu Yusuf.
Muhammad said: it is not valid except with the ratification of the guardian; if they die before it, they do not inherit from each other, he cannot divorce her, nor observe li'an, and conjugal relations are unlawful. If the guardian refuses ratification, at-Tahawi reports from Muhammad that the judge renews the contract between them; and Hisham reports from Muhammad: if the guardian does not ratify it, I ratify it, he being judge at that time: two transmissions result from this. It is also reported that he returned to the view of Abu Hanifah seven days before his death; and the jurist Abu Ja'far al-Hinduwani reports that a woman came to Muhammad three days before his death and told him that she had a guardian who refused to marry her unless she gave him much wealth, and Muhammad said to her: "go and marry yourself", which supports what is reported of his return. From Abu Yusuf, outside the transmission of the Usul, a view similar to the first opinion of Muhammad. According to one transmission: if she marries herself to an equal (kuf'), it depends on nothing; if he is not an equal, it depends on the ratification of the guardian (al-Ikhtiyar 3/112).
Those who say that it is not permitted for the woman to marry herself (the majority: the Malikis with disagreement among them, the Shafi'is and the Hanbalis, as well as Abu Yusuf according to one transmission and Muhammad with divergence in the reports, as will come in detail in the chapter on marriage) say that she may not appoint another, for she does not have disposal over her own marriage.
The Malikis say: if the humble woman, such as the freedwoman, the newly converted Muslim woman or the poor woman, appoints a non-related man in a land without authority, or with an authority of difficult access, and with no guardian for her, this is permitted. Ibn Yunus, may Allah have mercy on him, reports that Ibn al-Qasim, may Allah have mercy on him, said: when the humble woman, such as the freedwoman, the newly converted Muslim woman, the black woman or the poor woman, appoints a non-related man and he marries her while she is in a land without authority, or whose authority is difficult for her to reach, and she has no guardian, this is permitted. According to the transmission of Ashhab from Malik, may Allah have mercy on him: the humble woman and the others are alike, and none marries her but her guardian or the authority.
The shaykh, may Allah have mercy on him, says: first view: when she has no guardian and access to the authority is remote, this becomes a necessity that leads her to permit the non-related man to marry her, for he is a general guardian, according to the word of Allah the Most High:
"The believers, men and women, are allies of one another."
Surah at-Tawbah, 71
Second view: the general guardian does not marry in the presence of the specific guardian, a rule whose foundation concerns first the cases other than that of the humble woman.
It is stated in the Mudawwana that Ibn al-Qasim, may Allah have mercy on him, said: the same applies if she entrusts herself to the man under whose protection she entered Islam, for he is permitted to marry her; as for the man with whom her parents entered Islam, once time has passed and she possesses rank, wealth and standing in Islam such that people vie for her hand, he does not marry her, being toward her like a non-related man. Malik, may Allah have mercy on him, was asked: men among the clients (mawali) take in children of the Arabs struck by the plague, foster and raise them until adulthood, among them the young girl, and one of them wishes to marry her? He replied: this is permitted, and who is better for her than him. The shaykh, may Allah have mercy on him, specifies: this means when she has reached the age and consents; and this holds if she has no father; if she has a father, he does not marry her without his consent, unless the father leaves that in his hands, and what resembles this is found in the book of Muhammad.
It is further stated in the Mudawwana that Ibn al-Qasim, may Allah have mercy on him, said: every woman who has standing, wealth and rank, only her guardian or the authority marries her. It was asked of Malik, may Allah have mercy on him: if a woman of rank marries without the order of her guardian, then delegates her affair to a man and the guardian is afterwards satisfied, does the marriage stand? He suspended judgment. Ibn al-Qasim, may Allah have mercy on him, said: if the guardian ratifies it through consummation, it is valid, whether the husband has consummated or not; and if he wishes to dissolve it on account of two occurrences of consummation, that belongs to him and he dissolves it; if her stay with him lengthens and children are born, the marriage is confirmed if that is sound and it has not been dissolved: said Malik and more than one transmitter. Sahnun, may Allah have mercy on him, reports that others said: it is not valid, even if the guardian ratifies it, for someone other than the guardian concluded it (al-Jami' li-masa'il al-Mudawwana of Ibn Yunus 9/64 and 9/95, al-Mudawwana al-Kubra 4/164-165, adh-Dhakhira 4/240).
Imam Ibn Abd al-Barr, may Allah have mercy on him, says: it is not permitted for the woman to conclude her marriage contract herself without her guardian, nor to conclude the marriage of another; among those who said this: Malik, ash-Shafi'i, Sufyan, ath-Thawri, Ibn Abi Layla, Ibn Shubrumah, Ibn al-Mubarak, Ubaydullah ibn al-Hasan, Ahmad, Ishaq, Abu Thawr, Abu Ubayd and at-Tabari; it is reported from Omar, Ali, Ibn Mas'ud, Ibn Abbas and Abu Hurayrah, and it is the view of Sa'id ibn al-Musayyib, al-Hasan, Omar ibn Abd al-Aziz and Jabir ibn Zayd Abu ash-Sha'tha'; the adherents of opinion (ahl ar-ray) among the Kufans and a group of the Successors contradicted them (at-Tamhid of Ibn Abd al-Barr 19/84).
The jurists differed concerning the notorious sinner (fasiq): may he appoint to marry his daughter or his sister? And, accordingly, may he be the guardian of his daughter? The Shafi'is according to the soundest view and the Hanbalis according to the madhhab hold that the appointment of the notorious sinner to marry his daughter or his sister is not valid, for he does not have disposal himself over her marriage.
The dispositions of the apostate are suspended according to Abu Hanifah, his properties being suspended, and effective according to Abu Yusuf and Muhammad, his properties being established; the appointment from the apostate woman is however valid by consensus, her dispositions being effective, without divergence (Bada'i' as-Sana'i' 6/20, al-Bahr ar-Ra'iq 7/142). The Shafi'is according to a third opinion and the Hanbalis according to the madhhab hold that the appointment by the apostate of another is invalid, because he is barred from disposing of his property so long as he remains an apostate. If he appoints and then apostatizes, the three opinions already cited conflict among the Shafi'is and the Hanbalis over the lapse of the mandate.
The Hanbalis say: if the principal apostatizes, the mandate is not annulled in what he may dispose of; as for the agent over his property, it depends on his own disposition: if we say that his disposition is valid, his appointment is not annulled; if we say it is suspended, his agency is suspended; and if we say that his disposition is annulled, his appointment is annulled; if he appoints in a state of apostasy, the three views conflict (ash-Sharh al-Kabir of Ibn Qudamah 5/215, Kashshaf al-Qina' 3/548, Sharh Muntaha al-Iradat 3/515).
The jurists differed concerning the one in ihram (muhrim): may he lawfully appoint to marry himself or marry his freedwoman, or be appointed by another to conclude the marriage contract, or is that not permitted to him? The majority, namely the Malikis, the Shafi'is and the Hanbalis, hold that it is not permitted for the muhrim to appoint or be appointed in the marriage contract during his ihram. The Hanafis hold, by contrast, that it is permitted to him, both to appoint and to be appointed in the marriage contract (al-Mabsut 4/191, al-Hidaya Sharh al-Bidaya 1/193, Tabyin al-Haqa'iq 2/110).
The cause of the divergence: may the muhrim marry or give in marriage, or is that not permitted to him? Those who say that he may marry in a state of ihram say that he may appoint and be appointed in marriage and giving in marriage, as is the Hanafi school; the proof that he may marry in a state of ihram is what Muslim reported from Amr ibn Dinar from Abu ash-Sha'tha' that Ibn Abbas informed him:
The Prophet, peace and blessings of Allah be upon him, married Maymuna while he was in a state of ihram.
Reported by Muslim (1410)
Those who say that he may neither marry nor give in marriage in a state of ihram, like the majority of jurists among the Malikis, Shafi'is and Hanbalis, say that he may not appoint another for marriage nor be appointed by another, for he cannot conduct its conclusion; the proof is what Muslim and others reported from Uthman ibn Affan that the Messenger of Allah, peace and blessings of Allah be upon him, said:
The muhrim does not marry, nor give in marriage, nor propose.
Reported by Muslim (1409)
The Shafi'is say: the form of the muhrim's appointment is his being appointed to conclude the contract for himself or for his freedwoman while in ihram; if he appoints him to conclude it after his release, or in absolute terms, this is valid, for ihram prevents conclusion without authorization; it is as if he appointed him to buy this wine after his release, or as when a released man is appointed by a muhrim to conclude lawfully a marriage: this is valid, for he is a pure messenger.
Al-Mawardi, may Allah have mercy on him, says: if the muhrim appoints a released man for marriage and the agent marries him after his release, ash-Shafi'i stated expressly in al-Umm: the marriage is valid, for it was concluded by a lawful agent for a lawful principal; the principal was a muhrim at the time of the authorization, and regard is given to the time of the contract, not to the time of the authorization. The difference between the authorization of the muhrim for marriage, who marries after his release and it is permitted, and the authorization of the child for marriage, who is married after puberty and it is not permitted, is that the child is not among those having the capacity to authorize, while the muhrim is among them (al-Hawi al-Kabir 4/126, al-'Ubab 684, Rawdat at-Talibin 3/496, an-Najm al-Wahhaj 5/24, Mughni al-Muhtaj 3/194, Nihayat al-Muhtaj with the hashiya of ash-Shabrampilsi 5/21, Asna al-Matalib 2/263, ad-Dibaj 2/303).
The Malikis say: the muhrim does not marry, nor give in marriage, nor propose, that is, it is unlawful for him; it is likewise unlawful for him to attend a marriage: if one of the two spouses is a muhrim, or the guardian or the agent is a muhrim at the time of the contract, it is defective, all the more so if several are, with no regard to the time of the appointment. All of this concerns the specific guardian; as for the ruler and the judge, each of the two may be a muhrim and appoint a released man, and the contract of the released agent is then valid (Hashiyat al-'Adawi 2/97, at-Tamhid 2/156-157, al-Istidhkar 4/18).
The agent is the one entrusted with executing the mandate. The jurists required certain conditions for his mandate to be valid. The first condition: that he be lawfully capable of disposing of what he is appointed for as he would for himself, with a sound expression, for he stands in the place of the principal in the offer and the acceptance: whoever may dispose for himself of a thing may deputize another to that effect if he is amenable to delegation. On this basis, the jurists agree that the appointment of the insane, the unconscious and the child lacking discernment is not valid, the intellect being a condition of legal capacity: they cannot dispose for themselves, all the more for others (Bada'i' as-Sana'i' 6/20, al-Fatawa al-Hindiyya 3/562, adh-Dhakhira 8/5, Bidayat al-Mujtahid 4/85, Rawdat at-Talibin 3/496, Kashshaf al-Qina' 3/539, Sharh Muntaha al-Iradat 3/501).
The jurists then differed concerning the appointment of the discerning child, as well as masculinity, probity and Islam: are they required of the agent or not? According to the following detail.
The jurists differed concerning the discerning child not yet pubescent: may he be an agent, or is majority required of him, or is his mandate valid in some cases and not others? Three opinions conflict. The Hanafis and the Hanbalis according to the madhhab hold that the appointment of the sane child is valid: according to the Hanafis, even without the authorization of his guardian; according to the Hanbalis, the authorization of the guardian is required. The proof is what is reported from Omar ibn Abi Salamah: when the waiting period of his mother came to an end, Abu Bakr, may Allah be pleased with him, sent to seek her in marriage for himself, but she did not marry him; the Messenger of Allah, peace and blessings of Allah be upon him, sent Omar ibn al-Khattab, may Allah be pleased with him, to seek her in marriage for him, and she said: "inform the Messenger of Allah that I am a jealous woman and an afflicted woman, and that none of my guardians is present". Omar came and informed the Messenger of Allah, who said:
"Return to her and say to her: as for your saying 'I am a jealous woman', I will supplicate Allah for you and He would remove your jealousy; as for your saying 'I am an afflicted woman', your children will suffice you; as for your saying that none of your guardians is present, none of your guardians, present or absent, dislikes that." She then said to her son: "Omar, rise and marry the Messenger of Allah." And he married her.
Reported by an-Nasa'i (3254) and al-Bayhaqi in al-Kubra (13530)
He did not therefore marry her by virtue of guardianship over his mother, the child having no guardianship: his marriage falls under the authority of agency. Al-Bayhaqi reports the hadith in al-Kubra (13530), and Ibn al-Jawzi says in at-Tahqiq fi ahadith al-Khilaf (2/266): this hadith deserves examination, for Omar, her son, was three years old on the day the Messenger of Allah, peace and blessings of Allah be upon him, married her: how could he be told "marry her"? This is because the Messenger of Allah married her in the fourth year and died while Omar was nine years old; on this basis, the word of Umm Salamah to Omar, "rise and marry her", may be understood as playful speech addressed to the child. And even were it sound that the child marry her, the marriage of the Messenger of Allah has no need of a guardian: Abu al-Wafa Ibn Aqil said that the letter of Ahmad's words implies that the Messenger of Allah, peace and blessings of Allah be upon him, could marry without a guardian, his competence being a matter of certainty.
The Hanafis say: the discerning child, because he possesses intellect, is among those able to dispose and his expression is sound; but because it is feared that he might act to his own harm, he has been prevented from disposing; for that reason, conducting acts for others is permitted him according to his opinion, no harm befalling him through this disposition. On this basis, the appointment of the discerning child, authorized or unauthorized, is valid, except that the rights of the contract, such as sale and the like, revert to the agent if he is pubescent, and to the principal if he is a child. When they revert to the principal, and not to himself, the consideration of his state in the appointment has no meaning: the consideration of his state in his disposition indeed applies only to what he disposes of for himself. Do you not see that if a child is appointed to demolish his house or slaughter his sheep and he does it, nothing weighs upon him; were the mandate not valid, he would owe compensation. Likewise he stands in the place of the principal in the contracts; and this differs from his authorization to divorce the child's wife, for the father has no disposal over that and therefore cannot appoint to that effect, whereas he has disposal over himself in sale, purchase and the rest of the contracts, so that the appointment of the child therein is valid; likewise he has disposal over the son in purchase and sale, so that his authorization to that effect is permitted.
The rule applies in the same manner to the one interdicted for prodigality, that is, he may be an agent and the rights of the contract revert to his principal. The rights of the contract are: taking the thing sold, receiving the price, claiming the price of the purchased property, returning the price of the thing sold and refunding it when the thing sold is taken back by right from the hand of the buyer, and similar matters.
When the unauthorized discerning child is appointed, the rights of the contract revert to the principal; however, if this child collects the price of the property whose sale he was appointed for, the collection is valid, for the child being sane, he is original in the rights of the contract, and the non-bindingness of the rights of the contract does not indicate the absence of permissibility. When the discerning child is authorized and agent of the sale, the sale is valid and the rights of the contract revert to him, whether he is agent of the sale for cash or for deferred payment. If he is agent of the purchase for cash, his purchase is likewise valid and the rights of the contract revert to him, by istihsan; if he is agent of the purchase on deferred payment and buys on this basis, the rights of the contract revert to the principal and not to the agent, for they then signify suretyship; the seller may claim the price of the sale from the principal and not from the agent. In this case, in case of disagreement over whether the child is interdicted or authorized, the word goes to the one asserting authorization, for the root of the contract is execution, and the child's undertaking of the contract and conducting of it indicate execution. From Abu Yusuf: if the buyer is unaware of the state of the seller, then learns that he is an interdicted child, he has the option to rescind (Bada'i' as-Sana'i' 6/20, Mukhtasar Ikhtilaf al-'Ulama' 4/70-71, Sharh Fath al-Qadir 7/502, al-Fatawa al-Hindiyya 3/562, al-Jawhara an-Nayyira 3/472, al-Lubab 1/554, Durrar al-Hukkam 3/544-545, al-Mughni 5/52, ash-Sharh al-Kabir 5/204, Kashshaf al-Qina' 3/540).
The Shafi'is hold that the appointment of the child is not valid, whether he is discerning or not, authorized or not; for one of the conditions of the agent is the validity of his conducting the permitted disposition for himself, otherwise his appointment is not valid: the disposition of a person for himself is stronger than his disposition for another, the first proceeding from originality, the second from deputation; whoever cannot do the stronger cannot do the weaker by way of the stronger, and the appointment of the child is therefore not valid, because of the deprivation of his expression.
The sound view, however, is that the word of a discerning child of trusted speech (ma'mun al-qawl) is relied upon for permitting entry into a house and the delivery of a gift, on account of the leniency of the early generations in such matters; it is an appointment on the side of the one authorizing and the one giving the gift. According to the view opposing the soundest one, his word is not relied upon as that of others, unless indications support it: if indications support it and give certainty of his truthfulness in that, his word is relied upon definitively, and this is in reality an application of knowledge, not of his word. If nothing joins it, if he is not of trusted speech, it is not relied upon; otherwise two ways: the sounder of them is certain reliance, the other is to follow the two views regarding the acceptance of his report. His word is relied upon when he informs of the request of the host. The disbeliever and the notorious sinner are like the child: their word is not relied upon; an-Nawawi says: I know of no divergence over the permissibility of relying upon them. The locus of the invalidity of the child's appointment is what he cannot validly conduct: the appointment of the discerning child is therefore valid for the voluntary pilgrimage, the slaughter of a sacrificial animal and the distribution of zakat, his conducting of it being valid (al-'Ubab 685, al-Bayan 6/403, Rawdat at-Talibin 3/496, an-Najm al-Wahhaj 5/27-28, Mughni al-Muhtaj 3/194-195, Nihayat al-Muhtaj with the hashiya of ash-Shabrampilsi 5/21, Asna al-Matalib 2/263, ad-Dibaj 2/303, Hashiyat Qalyubi and 'Umaira 3/845).