Islamic Fiqh > Companies and leases > Wakala (agency mandate) > 1. Sale at the market price (thaman al-mithl)
Contents
Updated on 25 September 2026 at 6:57 PM
This part belongs to the full section: All sections of this part.
This first part of the rules of sale within the mandate (wakala) examines the unrestricted mandate: may the agent sell below or above the market price, for cash or on credit, in the currency of the land or another, for money or for goods, and to whom may he sell? The jurists differ on each of these questions, and the detail is set out below. The chapter then addresses the restricted mandate (muqayyad) and the forms of the agent's overstepping of his mandate.
The jurists differed: if the principal leaves the sale to the agent absolutely unrestricted, may the latter sell at other than the market price, whether little or much, or must he sell at the market price?
Imam Abu Hanifa (may Allah have mercy on him) held that the agent of an unrestricted sale may sell for little or for much; for the order is an unrestricted expression, and the ruling of a word is that it is carried upon its full sense; such sales occur, so it is permitted, except where suspicion (tuhma) arises. Now selling with underpricing is customary when there is pressing need for money, so it may not be restricted without proof; and custom is contradictory: selling at gross underpricing (ghabn fahish) in order to obtain a price with which to buy something more profitable is also customary, so the unrestricted mandate may not be restricted given this contradiction. Moreover, selling at gross underpricing, if not customary in practice, is customary in mention and naming, since each of the two is called a sale, or is, linguistically, the exchange of a desired thing for a desired thing, and this exists; and unrestricted language refers to what is customary in mention and naming, without regard to actual practice.
Do you not see that one who swears not to eat meat, then eats the flesh of a human being or of a pig, must make expiation, although such eating is not customary? It is because it is customary in its unqualified form and in its naming; the same applies here.
But if he says: "sell it for a hundred" or "for a thousand", the agent may not go below it, by consensus (al-Bada'i' 6/28, al-Hidaya 3/145, 146, al-Ikhtiyar 2/194, Tabyin al-Haqa'iq 4/270, 271, al-Lubab 2/564, al-Jawhara an-Nayyira 3/499, 500, al-'Inaya 11/165, 166, al-Fatawa al-Hindiyya 3/588).
The majority of jurists, namely the Malikis, the Shafi'is, the Hanbalis and the two companions of the Hanafi school, Abu Yusuf and Muhammad (a like report is narrated from Abu Hanifa), held that when the principal leaves the sale unrestricted without naming a price, the agent must confine himself to the market price and may not sell below a price at which people are not generally defrauded; for it is an unrestricted mandate in an exchange contract, which therefore requires the market price or what approximates it; the basis is the mandate to buy: any capacity by which he holds the power to buy does not permit him to buy above the market price, so likewise, when he holds the power to sell, he may not sell below the market price, like the testamentary executor (wasi). And because favoritism at a loss (muhabaha) is in the meaning of a gift, the proof being that it is treated like it: when it takes place in illness, it falls under the one-third rule; and it is established that the agent has no power of gift, so he has no power to favor.
And because he disposes of another's right: he holds only what involves deliberation and caution, and what we mentioned involves neither, so he does not hold it (al-Ishraf 3/81, no. 940, al-Ma'una 2/209, Sharh Mukhtasar Khalil 6/73, al-Sharh al-Kabir with the gloss of al-Dasuqi 5/60, 61, Tahbir al-Mukhtasar 4/282, 283, al-Taj wa'l-Iklil 4/202, Mawahib al-Jalil 7/152, 153, al-Bahja fi Sharh al-Tuhfa 2/176, Minh al-Jalil 6/377, al-Sawi's gloss on the Sharh al-Saghir 8/75, al-Hidaya 3/145, 146, al-Ikhtiyar 2/194, al-Lubab 2/564, al-Jawhara an-Nayyira 3/500, al-Muhadhdhab 1/390, Rawdat al-Talibin 3/501, 502, al-Bayan 6/433, 434, Mughni al-Muhtaj 3/203, Nihayat al-Muhtaj 5/36, 37, an-Najm al-Wahhaj 5/43, 44, ad-Dibaj 2/312, Kanz ar-Raghibin 2/854, al-Mughni 5/78, Kashshaf al-Qina' 3/554, Sharh Muntaha al-Iradat 3/523).
As for what people are generally defrauded in, he is excused, and the reference in that is to custom with the majority.
The Hanafis explained what people are not defrauded in: it is what falls under the valuation of the appraisers; what falls under their valuation is a slight underpricing (yasir), and what does not is gross (fahish); for what the Law has not delimited is referred to custom, in leniency toward people.
Explanation: if a thing is sold for ten, and some appraisers say it equals five, others six, others seven, that is gross underpricing, because it falls under no one's valuation; whereas if some say eight, others nine, others ten, that is slight underpricing.
The criterion being the appraisers' valuation is because they are the ones to whom one turns regarding defects and similar matters that require expertise in transactions (Radd al-Muhtar 5/143, al-Jawhara an-Nayyira 3/503, al-Lubab 2/565; this has been explained earlier in the section on sale, volume six).
The Shafi'is said: he may not sell at the market price and then turn away the one who offers more, for he is commanded to seek the interest. If the higher offer appears during the option period, the sounder view is that he must rescind the first sale and accept the increase; if he does not, the sale dissolves of itself, even without his knowledge, according to al-Adhra'i, provided the bidder is neither dilatory nor evasive and his wealth or earnings are lawful.
Benefit: the market price is the limit of the buyer's desires (Rawdat al-Talibin 3/501, 502, al-Bayan 6/433, 434, Mughni al-Muhtaj 3/203, Nihayat al-Muhtaj 5/36, 37, an-Najm al-Wahhaj 5/43, 44, ad-Dibaj 2/312, Kanz ar-Raghibin 2/854).
The Hanbalis said: even if someone offering more than the market price is present, he may not sell at the market price, for caution and seeking gain for his principal are incumbent upon him. If he sold at the market price and then someone offering more appeared during the option period, the sound view is that he is not required to rescind the contract, for the increase is a forbidden and disapproved thing, so he need not go back to it; and because the higher bidder may not stand by his increase, rescission cannot be required on mere uncertainty.
Ibn Qudama (may Allah have mercy on him) said: it is possible that it is required of him; for it is an increase in the price that could have been obtained, resembling the case had he permitted it before the sale; the prohibition is directed at the one who offers more, not at the agent; it therefore resembles one to whom the offer came before the sale, after the agreement (al-Mughni 5/78, 79, Kashshaf al-Qina' 3/554, Sharh Muntaha al-Iradat 3/523).
They then differed: if he sold below the market price, in what people are defrauded, does the principal have the option between rescission and acceptance, or is the sale valid with no right of rescission, the agent guaranteeing the shortfall?
The Malikis said: if he deviated by selling at other than the market price, the principal is offered the option between acceptance and return: if he wishes, he ratifies the act; if he wishes, he returns it, and the goods remain binding upon the agent, unless what he deviated in is a slight thing in which people are generally defrauded: then the principal has no claim (al-Ishraf 3/81, no. 940, al-Ma'una 2/209, Sharh Mukhtasar Khalil 6/73, al-Sharh al-Kabir with the gloss of al-Dasuqi 5/60, 61, Tahbir al-Mukhtasar 4/282, 283, al-Taj wa'l-Iklil 4/202, Mawahib al-Jalil 7/152, 153, al-Bahja fi Sharh al-Tuhfa 2/176, Minh al-Jalil 6/377, al-Sawi's gloss on the Sharh al-Saghir 8/75).
The Hanbalis said: if he sold below the market price, or below the price fixed for him, the sound position of the school is that the sale is valid and the agent guarantees everything short of the market price, if it is something in which people are not customarily defrauded; for it combines the buyer's gain, through the absence of rescission, and the seller's; the guarantee is therefore required, for it is negligence in abandoning caution and the seeking of gain with the principal's permission; in keeping the contract and guaranteeing the negligent one there is a combination of interests; the same applies to the partner, the executor, the supervisor (nazir) of a waqf or the treasurer of the public treasury, and their like.
It is also said: he guarantees what lies between what people are defrauded in and what they are not; for what people are defrauded in is validly sold without guarantee (al-Mughni 5/78, al-Kafi 2/245, al-Insaf 4/426, Kashshaf al-Qina' 3/554, Sharh Muntaha al-Iradat 3/523, Matalib Uli an-Nuha 3/451).
The Shafi'is and the Hanbalis, in one report, held that if the agent sold below the market price, the sale is not valid according to the school; if he delivered the goods sold, he guarantees them for his transgression, and he reclaims them if they remain; otherwise the principal charges whomever he wishes, of the buyer and the agent, with their value, whether it is a fungible (mithli) or a priced (mutaqawwim) good.
The guarantee rests upon the buyer, and if he reclaims the goods, he may resell them by the prior authorization, like the sale of the pawn by the just man; unlike one who returns them with a defect, or rescinds a sale in which the option was stipulated for the buyer alone: he may not resell them a second time by the prior authorization; the difference is that in the first case the goods did not leave the principal's ownership, and in the second they did; and once they leave his ownership, the agent is discharged.
Before delivery, there is no guarantee upon him; for what he says is nonsense.
If he said to him: "sell it for whatever price you wish", his sale is valid even with gross underpricing, but not on credit, nor in other than the currency of the land; "with whatever you wish", or "with whatever you can obtain": his sale is valid for goods, but not with gross underpricing nor on credit, nor with gross underpricing nor other than the currency of the land; "with what is scarce and cheap": his sale is valid with gross underpricing and for goods, but not on credit; "however you wish": his sale is valid on credit. This is because "how much" relates to number, thus embracing little and much; "what" relates to genus, thus embracing cash and goods; but in the last one, once combined with "scarce and cheap", it embraced by custom little and much of the price alike; and "how" relates to state, thus embracing the immediate and the deferred (al-Hawi al-Kabir 6/593, Rawdat al-Talibin 3/501, 502, al-Bayan 6/433, 434, Mughni al-Muhtaj 3/203, Nihayat al-Muhtaj 5/36, 37, an-Najm al-Wahhaj 5/43, 44, ad-Dibaj 2/312, Kanz ar-Raghibin 2/854).
The jurists differed regarding the agent of an unrestricted sale: may he sell other than in the local currency, or must he sell in the local currency?
Imam Abu Hanifa held that if the agent sells it other than in the local currency, his sale takes effect and binds his principal; he argued it from the fact that the unrestricted authorization embraces the generality of sale, and the restriction of the unrestricted occurs only with proof, like the restriction of the general by the Book and the Sunna; since the name of sale applies to selling other than in the local currency, it must be valid, for it is an authorized contract, just as if he sold it in the local currency.
He then argued the permissibility of selling other than in the local currency from the fact that it is a sale for a genus of prices, which is therefore valid, like the sale for the local currency.
The majority of jurists, the Malikis, the Shafi'is and the Hanbalis, held that he must sell in the local currency and may not sell otherwise; for since it is not valid from the agent in buying to buy other than with the local currency, it is not valid from the agent in selling to sell other than for the local currency. Clarification: it is an exchange contract under an unrestricted mandate, so it must not be valid otherwise, by analogy with buying; and any genus with which the agent may not buy, he may not sell for, by analogy with selling for other than a genus of prices and for prohibited things. On this basis, if the predominant currency of the land is dirhams, selling for dinars is not permitted.
If there are two currencies in the land: if one predominates in transactions, the agent sells and buys with it, according to the Shafi'is and the Hanbalis; if the two are equal in circulation, he sells with the more beneficial for the principal, for he is commanded to give him sincere counsel; if they are equal in benefit, he contracts with whichever of the two he wishes, for neither has superiority over the other; and this when no currency was specified for him; if a currency is specified, the matter is settled, and he may not contract with another.
The Shafi'is said: if he sold it for both currencies, dirhams and dinars: if in two contracts, both are valid, provided it is a sale in which splitting the transaction is permitted; if in one contract, there are two views: one, combining the two currencies is permitted, as taking each of them alone is permitted; the other, it is not permitted, for most sales involve a single genus of prices, so departing from the predominant is not permitted (cf. the previous sources).
If he deviated and sold other than in the local currency, the jurists differed regarding him:
The Malikis said: if he deviated and sold other than in the local currency, the principal is offered the option between acceptance and return: if he wishes, he ratifies the act; if he wishes, he returns it, and the goods remain binding upon the agent (al-Ishraf 3/81, no. 940, al-Ma'una 2/209, Sharh Mukhtasar Khalil 6/73, al-Sharh al-Kabir with the gloss of al-Dasuqi 5/60, 61, Tahbir al-Mukhtasar 4/282, 283, al-Taj wa'l-Iklil 4/202, Mawahib al-Jalil 7/152, 153, al-Bahja fi Sharh al-Tuhfa 2/176, Minh al-Jalil 6/377, al-Sawi's gloss on the Sharh al-Saghir 8/75).
The Shafi'is held that if the agent sold other than in the local currency, the sale is not valid according to the school, and if he delivered the goods sold, he guarantees them for his transgression; he reclaims them if they remain; otherwise the principal charges whomever he wishes, of the buyer and the agent, with their value.
The guarantee rests upon the buyer; if he reclaims the goods, he may resell them by the prior authorization, like the sale of the pawn by the just man; unlike one who returns them with a defect, or rescinds a sale in which the option was stipulated for the buyer alone: he may not resell them a second time by the prior authorization; the difference is that in the first case they did not leave the principal's ownership, and in the second they did; and once they leave his ownership, the agent is discharged.
Before delivery, there is no guarantee upon him; for what he says is nonsense.
If he said to him: "sell it for whatever price you wish", his sale is not valid other than in the local currency; and "with whatever you wish": not valid other than in the local currency (al-Hawi al-Kabir 6/593, Rawdat al-Talibin 3/501, 502, al-Bayan 6/426, 433, 434, Mughni al-Muhtaj 3/203, Nihayat al-Muhtaj 5/36, 37, an-Najm al-Wahhaj 5/43, 44, ad-Dibaj 2/312, Kanz ar-Raghibin 2/854).
The jurists differed: when the principal leaves the sale unrestricted, may the agent sell for goods, or must it necessarily be for money?
Imam Abu Hanifa (may Allah have mercy on him) held that he may sell for goods as well as for money, by virtue of the unrestrictedness of the order: the unrestricted applies outside the place of suspicion and embraces everything upon which the name of sale applies; now selling for goods is customary when there is pressing need for money for profitable trade or otherwise, or when one is weary of the item; then one cares little about the smallness or greatness of the price; custom is therefore shared and cannot serve as proof for either party; rather, the disputed thing falls within what the adversary claims, so that his contestation dissolves or his obstinacy becomes apparent.
Selling for goods is a sale in every respect: even one who swore not to sell makes expiation by selling for goods; since it was counted as an unqualified sale in the oath, it is counted likewise in the mandate (al-'Inaya, Sharh al-Hidaya 11/166, 167, Tabyin al-Haqa'iq 4/270, al-Jawhara an-Nayyira 3/499, al-Lubab 2/564, al-Ikhtiyar 2/194, Mukhtasar al-Wiqaya 2/172, al-Fatawa al-Hindiyya 3/588, Majma' al-Damanat 1/541).
The two companions of the Hanafi school, Abu Yusuf and Muhammad, along with the Malikis and the Hanbalis according to the madhhab, held that the agent of an unrestricted sale may not sell for goods: only the sale for money is permitted to him.
The Hanafis grounded it in the fact that the unrestrictedness of the order is restricted by prevailing custom; for dispositions aim at warding off needs, and are therefore restricted to their proper places; and the prevailing custom is sale for money. This is why the agent is restricted to buying coal in the cold days, ice (jamd, with a sukun on the mim: what has frozen of water through the severity of cold, a naming of the noun by the verbal noun) in the summer days, and the sacrificial animal in the days of slaughter or before them: all of that belongs to that established custom; so much so that if he bought that in the following year, the one who ordered would not be bound. And because exchange is a sale from one aspect and a purchase from another: inasmuch as it involves the goods leaving ownership, it is a sale; inasmuch as it involves acquiring the goods into ownership, it is a purchase; the unrestricted name of sale does not embrace it, for the unrestricted refers to the complete (al-'Inaya 11/166, 167, Tabyin al-Haqa'iq 4/270, al-Jawhara an-Nayyira 3/499, al-Lubab 2/564, al-Ikhtiyar 2/194, Mukhtasar al-Wiqaya 2/172, al-Fatawa al-Hindiyya 3/588, Majma' al-Damanat 1/541).
The Malikis said: it is incumbent upon the agent, under an unrestricted mandate, to sell for cash; if he deviated by selling for goods or an animal, the principal is offered the choice of ratifying the sale and taking the price, or returning it and taking back his goods if they exist; if they have perished, their value on the day of receipt is owed by the agent, unless the thing entrusted for sale is of those customarily sold only for goods, because of the lowness of its price, like vegetables and the like: then it binds the principal.
It is narrated in the Mudawwana that Imam Malik (may Allah have mercy on him) said: if you mandate a man to sell a foodstuff or goods, and he sells it for other than cash, for goods or otherwise, and he is criticized, what pleases me most is that the one commanded guarantee at the moment he sold for other than cash, unless the one who ordered ratifies his act and takes what he sold it for.
And if you ordered him to buy goods and he bought them other than for cash, you may reject what he bought, or accept it and pay him the equivalent of what he paid.
And if he bought for you or sold with copper coinage (fulus), it is like goods, unless it is an item of low price that is customarily sold only for fulus, and the like: in that case the fulus stand in place of cash (Tahdhib al-Mudawwana 1/496, al-Taj wa'l-Iklil 4/202, 203, Sharh Mukhtasar Khalil 6/73, the gloss of al-Dasuqi with the Sharh al-Kabir 5/61, Tahbir al-Mukhtasar 4/284, 285).
The Hanbalis said: if the agency is unrestricted, it is not valid for the agent to sell for a benefit (manfa'a), such as the lodging of a house or the service of a slave, nor for goods either, such as a garment, according to the sound position of the school, which is the manifest meaning of the author's words. The case of goods admits validity as a possibility, and it is a report narrated in al-Mujaz (al-Insaf 5/379, Kashshaf al-Qina' 3/553).
The Shafi'is said: he may sell for goods if the people of the land mostly transact with them, when custom runs to the exchange of goods rather than sale for cash, the customary indication showing it, especially if the currency of that land cannot otherwise be circulated; and there is no doubt about its permissibility in a region where there are no prices. If the custom of the people of the land is not sale for goods, the sale is not valid according to the school, and if he delivered the goods sold, he guarantees for his transgression, reclaims them if they remain, otherwise the principal charges whomever he wishes, of the buyer and the agent, with their value. The guarantee rests upon the buyer, and if he reclaims them, he may resell them by the prior authorization. Before delivery, there is no guarantee upon him; for what he says is nonsense (Nihayat al-Muhtaj 5/35, 36, an-Najm al-Wahhaj 5/43, ad-Dibaj 2/312, Kanz ar-Raghibin 2/854).
With the Hanbalis, the unrestrictedness of the mandate is carried upon prevailing custom: the agent may not sell for a benefit or for goods, except with the permission of the principal, as when he says to him: "do what you wish" or "dispose as you wish"; he may then sell for a benefit or for goods. If he did so, selling for goods or for a benefit without the principal's permission, his disposition is void (al-Insaf 5/379, Kashshaf al-Qina' 3/553, Matalib Uli an-Nuha 3/450, 451).
The jurists differed: if the principal leaves the sale absolutely unrestricted to the agent, may he sell on credit, or must he sell for cash?
The Hanafis held that when someone is mandated to sell a thing without being told cash or credit, his sale on credit is permissible by consensus; according to Abu Yusuf and Muhammad, the term must be customary; according to Imam Abu Hanifa, sale at a term is permitted even with a non-customary term, such as fifty years.
According to Abu Yusuf, if the mandate to sell serves a need of expenditure or the repayment of a debt, he may not sell on credit. It is also said that the fatwa is given on this view.
And if the one who ordered and the agent differ, the one who ordered saying: "I ordered you to sell for cash and you sold on credit", the agent saying: "you ordered me to sell it without saying anything", the word retained is that of the one who ordered (al-Jawhara an-Nayyira 3/500, Mukhtasar al-Wiqaya 2/172, al-Lubab 1/564, 565, al-Ikhtiyar 2/194).
The Malikis, the Shafi'is and the Hanbalis held that the agent of an unrestricted sale has no right to sell on credit.
The Malikis said: it is because unqualified sale in the Law requires valuation, as shown by one who says to a man: "I sold you this garment for a dinar", and he replies: "I accept": cash is required by the very unrestrictedness; so when the agent was only authorized for an unqualified sale, it is as if he was only authorized in the rationally expected manner of it, which is cash; he may therefore not sell otherwise. If he sells on credit, it does not bind the principal except with his consent (al-Ishraf 3/81, no. 940, al-Ma'una 2/206, 207).
The Shafi'is said: the agent of an unrestricted sale has no right to sell on credit, even for more than the market price, for the unrestricted requires cash, which is the habit in most cases. If he sells on credit, the sale is not valid according to the school, and if he delivered the goods sold, he guarantees for his transgression, reclaims them if they remain; otherwise the principal charges whomever he wishes, of the buyer or the agent, with their value, whether it is a fungible or a priced good. And if he says to him: "sell it as you wish", his sale on credit is valid (al-Hawi al-Kabir 6/593, Rawdat al-Talibin 3/501, 502, al-Bayan 6/426, 433, 434, Mughni al-Muhtaj 3/203, 204, Nihayat al-Muhtaj 5/36, 37, an-Najm al-Wahhaj 5/43, 44, ad-Dibaj 2/312, Kanz ar-Raghibin 2/854).
The jurists differed regarding the agent of an unrestricted sale: may he sell to himself, or not?
The majority of jurists, the Hanafis according to the madhhab, the Malikis according to the famous view, the Shafi'is according to the madhhab and the Hanbalis according to the madhhab, held that it is not permitted for the agent of an unrestricted sale to sell to himself. They then differed: if the principal authorizes him to sell to himself, or fixes the price for him, is it valid or not? The detail is as follows:
The Hanafis said: it is not permitted for someone mandated to sell a thing by an unrestricted mandate to buy it for himself, even if the principal authorizes him or says to him: "sell it to whomever you wish"; it is not permitted to him, even if the principal declares it to him explicitly. According to another view, it is permitted if the principal authorizes him (Mukhtasar Ikhtilaf al-'Ulama' of al-Tahawi 4/72, al-Jawhara an-Nayyira 3/498, 499, al-Bahr ar-Ra'iq 7/167, Ibn Abidin 5/522, 523, al-Hindiyya 2/589).
The Malikis said: the agent charged with selling a thing may not sell it to himself as long as he is mandated to sell it, even if the price is named to him, for fear that he desires it more, so long as desires for it have not been exhausted or his master has not authorized him to sell it to himself; then it is permitted. Purchase is like sale; if he does it, the one who ordered has the choice between return and ratification. Opposite the famous view of the Malikis: he is permitted to sell to himself (al-Kafi 1/396, al-Bayan wa'l-Tahsil 8/142, al-Sharh al-Kabir with the gloss of al-Dasuqi 5/68, Sharh Mukhtasar Khalil 6/77, Tahbir al-Mukhtasar 4/290, al-Taj wa'l-Iklil 4/209, al-Fawakih al-Dawani 2/220, the gloss of al-Sawi 8/83).
The Shafi'is said: the agent of an unrestricted sale and purchase neither sells nor buys for himself, even if the principal authorizes him in it, according to the sound position of the school, because of the contradiction of the two aims: obtaining the lowest price for oneself and securing the best price for the principal. Ibn Surayj said: it is valid if he is authorized in it.
Likewise, if the price is fixed for him and he is forbidden to increase, it is not permitted, according to the sound view; for the basis is the absence of unity of the offerer and the acceptor in one person, and the cause is not suspicion, but the impossibility of offer and acceptance proceeding from a single person. Ibn al-Rif'a said: it ought to be permitted, for the absence of suspicion; and if he were mandated over a gift from himself or a debt to himself, that would not be valid on that account. The ruling of purchase in this matter is that of sale.
Al-Mawardi (may Allah have mercy on him) said: when the principal enables his agent to sell to himself or buy from himself, the madhhab of al-Shafi'i (may Allah have mercy on him) is that it is not permitted, because of the contradiction of the intended aim and the conflict of the two objectives; for the contract of agency imposed upon him securing the best price for his principal, and when he is himself the buyer, it turns toward his own interest.
Ibn Surayj (may Allah have mercy on him) said: that is permitted, just as it is permitted to enable his wife to pronounce her own divorce, or his slave to free herself; and this is an error, because of the difference between sale and divorce or emancipation, in three respects:
The first: sale involves a price that varies by increase and decrease, so that the inclination toward oneself renders it suspect; divorce and emancipation have no price that becomes suspect through inclination toward oneself.
The second: divorce and emancipation are broader, for they may fall upon qualities and be suspended upon uncertainty and ignorance, whereas sale is narrower in ruling than they.
The third: in divorce and emancipation there is no acceptance taken into account, whereas sale involves an essential acceptance; the giver therefore cannot be the acceptor. As for the case where someone is mandated to sell his slave and another mandates him to buy that very slave, mandated in its sale: it is not permitted, because of the conflict of the aim in the two contracts. He may maintain one of the two agencies: if he wishes to maintain the first of the two, in sale or purchase, it is permitted; if he wishes to maintain the second of the two, the sale or purchase carries two views: one, it is not valid, for the stipulation of the first prevents the validity of the second; the other, it is permitted, for agency does not bind, so the first has no effect and lapses by the acceptance of the second (al-Hawi al-Kabir 6/536, 538, Rawdat al-Talibin 3/502, 503, al-Bayan 6/420, Mughni al-Muhtaj 3/205, Nihayat al-Muhtaj 5/40, an-Najm al-Wahhaj 5/45, Kanz ar-Raghibin 2/856, ad-Dibaj 2/313).
The Hanbalis according to the madhhab said: it is not permitted for the agent in a sale to sell to himself; for the custom in sale is that a man sells to others, so the agency is carried upon that, and it is not permitted, just as if he forbade it to him.
Likewise, his buying for himself a thing whose purchase is entrusted to him, for his principal, is not valid; for it contravenes the custom in that matter, as if he said to him explicitly: "sell it or buy it from someone other than yourself", because of the suspicion that attaches to him in that.
If he increased in the sale beyond the amount of its price announced in the call, or delegated someone to sell, where it is permitted, while being himself one of the buyers, the sale is not valid, for what preceded: the custom is that he sells to others, so the agency is carried upon that, except with his permission, by authorizing him to sell to himself or to buy from it: then it is permitted, for the absence of suspicion, like the woman mandated to divorce herself; and because the cause of the prohibition lies in buying for oneself in a place where suspicion may concur, indicating the principal's displeasure with this disposition and the exclusion of this disposition from the generality of his word and his authorization; but here he has explicitly granted the authorization: the circumstantial indication no longer subsists in the face of his explicit text.
Ibn Qudama (may Allah have mercy on him) said: their statement that its aim is contradicted in sale and purchase: if the principal fixes the price for him and he buys at it, the aim of securing the best price has ceased, for nothing more than what has already been obtained is intended; and if the price is not fixed for him, the sale is restricted to the market price, as if a stranger were selling (al-Mughni 5/69).
According to Imam Ahmad (may Allah have mercy on him), it is permitted for the agent to sell to himself if he increased beyond the amount of its price in the call, or delegated someone to sell while being himself one of the buyers. If it is said: how is it permitted to him to hand it over to another to sell, this being delegation, and the agent has no right to delegate? We say: delegation is permitted in what one need not attend to personally, and the auction call is among what most people do not attend to personally; so if someone mandates a person to buy for him and he sells, it is valid according to this report, for he complied with his principal's command in the sale and the intended aim, the price, was achieved; it is permitted, just as if he had bought it himself (al-Mughni 5/69, al-Kafi 2/252, 253, al-Sharh al-Kabir 5/221, al-Mubdi' 4/367, al-Insaf 5/375, Kashshaf al-Qina' 3/552, Sharh Muntaha al-Iradat 3/521).
The jurists differed: may the agent mandated absolutely to sell to one whose testimony in his favor is rejected, such as his children, his wife and his parents? The detail of all that is as follows:
First case: the agent's sale to his young children. The jurists differed: may the agent of an unrestricted sale sell to his young children, as well as to those interdicted for insanity or prodigality, or not?
Imam Abu Hanifa, the Malikis according to the famous view, the Shafi'is and the Hanbalis held that it is not permitted for the agent of an unrestricted sale to sell to his young child or buy from him, nor to his interdicted one, the prodigal or the insane; for he is suspect in his regard and inclined to abandon seeking the best price in the price, like his suspicion regarding himself; his testimony in his favor is not accepted; the places of suspicion are excluded from agency, and the agent is suspect in the contract with them; and because each of the minor, the interdicted one and the agent customarily benefits from the other's wealth, the wealth of each of them is like the wealth of the agent; the agent thus becomes a seller or buyer to himself.
Even if the principal authorizes him in it, by saying to him: "sell to whomever you wish", it is not permitted according to the Hanafis in the sound view and the Shafi'is according to the madhhab. The Hanbalis said: it is valid if the principal authorizes, for the absence of suspicion (al-Bada'i' 6/28, al-Jawhara an-Nayyira 3/497, 499, al-Bahr ar-Ra'iq 7/167, Ibn Abidin 5/522, 523, al-Hindiyya 2/589, al-Sharh al-Kabir with the gloss of al-Dasuqi 5/68, Sharh Mukhtasar Khalil 6/77, Tahbir al-Mukhtasar 4/290, al-Taj wa'l-Iklil 4/209, al-Fawakih al-Dawani 2/220, the gloss of al-Sawi 8/83, al-Hawi al-Kabir 6/536, 538, Rawdat al-Talibin 3/502, 503, al-Bayan 6/419, Mughni al-Muhtaj 3/205, Nihayat al-Muhtaj 5/40, an-Najm al-Wahhaj 5/45, Kanz ar-Raghibin 2/856, ad-Dibaj 2/313, al-Mughni 5/69, al-Kafi 2/252, 253, al-Sharh al-Kabir 5/221, al-Mubdi' 4/367, al-Insaf 5/375, Kashshaf al-Qina' 3/552, Sharh Muntaha al-Iradat 3/521).
The two companions of the Hanafi school, Abu Yusuf and Muhammad, the Malikis opposite the famous view, and Ahmad in a report, held that it is permitted for the agent of an unrestricted sale to sell to his young child, or to his interdicted one, prodigal or insane, at the equivalent of the value; for the mandate is unrestricted, that is, free from restriction to a person rather than another, and the unrestricted is applied in its unrestrictedness: the required condition is present and the impediment absent; the impediment is suspicion, and there is no suspicion here; for it is either the preferring of the person, or the preferring of money, and neither of the two exists.
As for the first: it is that properties are distinct, since the son may lawfully share the couch of the slave girl he owns; were his property not distinct from his father's, his slave girl would be co-owned, and sharing her couch would not be lawful for him, while the couch of his father's slave girl is not lawful to him; the benefits are cut off, for the distinctness of properties brings about the cutting off of benefits.
As for the second: it is that valuation at the equivalent of the value negates it; the required condition being present and the impediment absent, the view of permissibility follows, as in selling to a stranger.
It is also said: if it involves a slight underpricing, it is likewise permitted according to Abu Yusuf and Muhammad (al-Bada'i' 6/28, al-'Inaya 11/162, 163, al-Jawhara an-Nayyira 3/498, 499, al-Bahr ar-Ra'iq 7/166, 167, Majma' al-Damanat 1/563, al-Lubab 1/564, Ibn Abidin 7/330, al-Hindiyya 2/589, al-Sharh al-Kabir with the gloss of al-Dasuqi 5/68, Sharh Mukhtasar Khalil 6/77, Tahbir al-Mukhtasar 4/290, al-Taj wa'l-Iklil 4/209, al-Fawakih al-Dawani 2/220, the gloss of al-Sawi 8/83, al-Hawi al-Kabir 6/536, 538, Rawdat al-Talibin 3/502, 503, al-Bayan 6/419, Mughni al-Muhtaj 3/205, Nihayat al-Muhtaj 5/40, an-Najm al-Wahhaj 5/45, Kanz ar-Raghibin 2/856, ad-Dibaj 2/313, al-Mughni 5/69, al-Kafi 2/252, 253, al-Sharh al-Kabir 5/221, al-Mubdi' 4/368, al-Insaf 5/377, Kashshaf al-Qina' 3/552, Sharh Muntaha al-Iradat 3/521).
The jurists differed: may the agent of an unrestricted sale sell to his adult children, or not?
Imam Abu Hanifa, the Shafi'is opposite the sounder view and the Hanbalis according to the madhhab held that it is not permitted for the agent of an unrestricted sale to sell to his adult son nor to buy from him; for the agent is a bearer of trust: if he sells to his children, suspicion attaches to him; and because each of them, the agent and his children, customarily benefits from the other's wealth, the wealth of each of them is like the wealth of the agent, and the agent becomes a seller or buyer to himself; the same applies to hiring and money-changing.
Unless the principal authorizes him to sell to one of them, or says to him: "sell it to whomever you wish": then selling to them is permitted. It is also said: if he sells above the value, it is permitted according to Abu Hanifa.
The two companions of the Hanafi school, Abu Yusuf and Muhammad, the Malikis, the Shafi'is according to the sounder view and the Hanbalis in a report held that it is permitted for the agent of an unrestricted sale to sell to his adult children at the equivalent of the value, without favoritism; for the mandate is unrestricted, that is, free from restriction to a person rather than another, and the unrestricted is applied in its unrestrictedness: the required condition is present and the impediment absent; the impediment is suspicion, and there is no suspicion here, for it is either the preferring of the person, or the preferring of money, and neither of the two exists.
As for the first: it is that properties are distinct, since the son may lawfully share the couch of the slave girl he owns; were his property not distinct from his father's, his slave girl would be co-owned, and sharing her couch would not be lawful for him, while the couch of his father's slave girl is not lawful to him; the benefits are cut off, for the distinctness of properties brings about the cutting off of benefits.
As for the second: it is that valuation at the equivalent of the value negates it; the required condition being present and the impediment absent, the view of permissibility follows, as in selling to a stranger.
And because he sold at the price for which, had he sold to a stranger, the sale would have been valid: there is therefore no suspicion, and it is as if he sold to a friend.
It is also said: if he sells to them with a slight underpricing, it is permitted according to Abu Yusuf and Muhammad.
The Malikis said: if he shows favoritism, selling to them what equals ten for five, he is prevented, but the sale stands and the agent is fined the amount of the favoritism he showed; the criterion is the favoritism at the time of the sale, not at the time the principal rises or learns of it (al-Bada'i' 6/28, al-'Inaya 11/162, 163, al-Jawhara an-Nayyira 3/498, 499, al-Bahr ar-Ra'iq 7/166, 167, Mukhtasar al-Wiqaya 2/172, Majma' al-Damanat 1/563, al-Lubab 1/564, Ibn Abidin 7/330, al-Hindiyya 2/589, al-Sharh al-Kabir with the gloss of al-Dasuqi 5/68, al-Taj wa'l-Iklil 4/209, Rawdat al-Talibin 3/502, 503, al-Bayan 6/419, Mughni al-Muhtaj 3/205, Nihayat al-Muhtaj 5/40, an-Najm al-Wahhaj 5/45, Kanz ar-Raghibin 2/856, ad-Dibaj 2/313, al-Mughni 5/69, al-Kafi 2/252, 253, al-Sharh al-Kabir 5/221, al-Mubdi' 4/368, al-Insaf 5/377, Kashshaf al-Qina' 3/552, Sharh Muntaha al-Iradat 3/521).
The jurists differed: if the principal grants the agent an unrestricted mandate to sell, may he sell to his wife, or she to him if she is the agent, or buy from her?
Imam Abu Hanifa, the Hanbalis according to the madhhab and the Shafi'is opposite the sounder view held that the husband, if he is an agent mandated absolutely to sell, may not sell to his wife, nor she to him if she is the agent; for the testimony of one of the two in favor of the other is not accepted; and because the agent is a bearer of trust: if he sells to his wife, suspicion attaches to him, the benefits being shared between them; each of the two customarily benefits from the other's wealth, so the wealth of each is like that of the other, and the agent becomes a seller or buyer to himself.
Unless the principal authorizes the sale to his wife, or says: "sell to whomever you wish": then he may sell to her, by consensus.
The Malikis, the two companions of the Hanafi school, Abu Yusuf and Muhammad, the Shafi'is according to the sounder view and the Hanbalis in a report, which is also a report from Abu Hanifa, held that it is permitted for a husband, if he is an agent, as for the wife, to sell to the other at the equivalent of the value, without favoritism; for the mandate is unrestricted, that is, free from restriction to a person rather than another, and the unrestricted is applied in its unrestrictedness: the required condition is present and the impediment absent, the impediment being suspicion, and there is no suspicion here; and because he sold at the price for which the sale to a stranger would have been valid: there is therefore no suspicion, and it is as if he sold to a friend.
It is also said: if he sells to her with a slight underpricing, it is permitted according to Abu Yusuf and Muhammad; and if he sells to her above the value, it is permitted according to Imam Abu Hanifa.
The Malikis said: if he shows favoritism by selling to his wife what equals ten for five, he is prevented, but the sale stands and the agent is fined the amount of the favoritism he showed; the criterion is the favoritism at the time of the sale, not at the time the principal rises or learns of it (al-'Inaya 11/162, 163, al-Jawhara an-Nayyira 3/498, 499, al-Bahr ar-Ra'iq 7/166, 167, Mukhtasar al-Wiqaya 2/172, Majma' al-Damanat 1/563, al-Lubab 1/564, Ibn Abidin 7/330, al-Hindiyya 2/589, al-Sharh al-Kabir with the gloss of al-Dasuqi 5/68, al-Taj wa'l-Iklil 4/209, Rawdat al-Talibin 3/502, 503, al-Bayan 6/419, Mughni al-Muhtaj 3/205, Nihayat al-Muhtaj 5/40, an-Najm al-Wahhaj 5/45, Kanz ar-Raghibin 2/856, ad-Dibaj 2/313, al-Mughni 5/69, al-Kafi 2/252, 253, al-Sharh al-Kabir 5/221, al-Mubdi' 4/368, al-Insaf 5/377, Kashshaf al-Qina' 3/552, Sharh Muntaha al-Iradat 3/521).
The generality of jurists, Hanafis, Malikis, Shafi'is and Hanbalis, held that it is permitted for the agent of an unrestricted sale to sell to his relatives, such as his brother, his paternal uncle and the rest of his kin; for the aim of the sale is obtaining the price, not the persons of the buyers; the mandate is unrestricted and there is no suspicion, the properties being distinct and the benefits cut off: selling to them is therefore like selling to a stranger.
Al-Mardawi (may Allah have mercy on him) said: wherever suspicion is realized, the sale is not valid (al-Insaf 5/378; see the previous sources).