Islamic Fiqh > Companies and leases > Wakala (agency mandate) > The agent for sale from one party and purchase from the other
Contents
Updated on 25 September 2026 at 6:57 PM
This part belongs to the full section: All sections of this part.
Al-'Amrani the Shafi'i (may Allah have mercy on him) said: if 'Amr mandates him to buy for him a slave from Zayd, and Zayd mandates him to sell it to 'Amr, our companions differed in this matter.
Ibn al-Sabbagh said: there are two views in it, as if he were mandated to sell to himself.
The two shaykhs, Abu Hamid and Abu Ishaq, said: it is not valid, by a single view, because of the contradiction of the two aims; for securing the best price for the seller at the price and the lowest for the buyer are both incumbent upon him (al-Bayan fi madhhab al-imam al-Shafi'i 6/420, 421).
Al-Mawardi (may Allah have mercy on him) said: if he is mandated to sell his slave and the other mandates him to buy the 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 other; 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 6/538).
Ibn Qudama (may Allah have mercy on him) said: if a man is mandated to sell his slave and another mandates him to buy a slave, the analogy of the madhhab is that he may buy it for him from himself; for he was given authorization over both ends of the contract, and he may therefore attend to both when he is not suspect, like the father who buys for himself from his child's wealth. And if the two litigants both mandate him, the analogy is its permissibility, for he can plead for one and answer for the other, and establish the proof of each of the two. The companions of al-Shafi'i have two views in this issue (al-Mughni 5/69, Kashshaf al-Qina' 3/552).
When the principal restricts the agent with specific restrictions, he must abide by them, and he may not exceed them in executing the mandate, by agreement of the scholars, in general terms, unless he deviates toward the better, as when told: "sell for ten" and he sold for more, or: "buy for ten" and he bought for less.
The Hanafis said: the mandate of sale is either unrestricted or restricted; if it is restricted, the restriction is observed, by consensus, to the point that if he violates his restriction, the sale is not executed against the principal, but remains suspended pending his ratification, unless the deviation is toward the better; for the agent acts by an authority derived from the principal and attends to the disposition only within the measure of the delegation; even the deviation toward the better is executed: if it is a deviation in form, it is a conformity in meaning, for the one who ordered indicates it, so he acts by the principal's delegation, hence the execution.
Al-Kasani (may Allah have mercy on him) said: the explanation of this rule: if he says: "sell this slave of mine for a thousand dirhams" and he sells him for less than a thousand, the sale is not executed; likewise if he sells him for other than dirhams, the sale is not executed, even if his value exceeds a thousand dirhams, for it is a deviation toward evil; people's aims vary with the genera, so selling otherwise is in the sense of deviation toward evil. If he sells him for more than a thousand dirhams, the sale is executed, for it is a deviation toward good, so it is not a deviation at all.
Likewise, if he is mandated to sell for a thousand dirhams cash and sells for a thousand deferred, the sale is not executed but suspended, for what we said. And if he is mandated to sell for a thousand dirhams deferred and sells for a thousand cash, the sale is executed, for what we said.
And if he is mandated to sell with the option stipulated for the one who ordered, and he sells without stipulating the option, it is not permitted, but suspended. And if he sells stipulating the option for the one who ordered, the latter may not ratify; for were he to hold ratification himself, the restriction would be pointless (Bada'i' as-Sana'i' 6/27).
The Malikis said: the agent of the sale, if he deviates from what he was mandated in by selling below the price named by the principal, the principal is offered the choice of ratifying his act or returning it, unless the agent guarantees the increase: then it binds the principal. Except if he deviates for the better: then it binds the principal, as when he increases over what he was ordered in the sale ("sell this goods for ten", and he sells it for twelve), or decreases below what he was ordered in the purchase ("buy it for ten", and he buys it for eight); for the principal has no option in that: it is a thing desired, and the mere fact of deviation does not create an option; only a deviation upon which a valid purpose attaches creates it (al-Sharh al-Kabir with the gloss of al-Dasuqi 5/64, 65, al-Taj wa'l-Iklil 4/205, Sharh Mukhtasar Khalil 6/75, Tahbir al-Mukhtasar 4/287, 288).
The Shafi'is said: the agent under a restricted mandate must observe the principal's restriction and its implication, according to the spoken word or custom; if he expressly prescribes to him selling to a specific person, such as Zayd, or at a specific time, such as such a day or month, or in a specific place, the agent must abide by it, as it will come, unless he deviates toward the better ("sell for a hundred", and he sells more): it is valid, unless he expressly declares the prohibition of increase: then it is prevented, for the spoken word nullified the right of custom (al-Muhadhdhab 1/350, 352, al-Bayan 6/436, Rawdat al-Talibin 3/509, 510, Mughni al-Muhtaj 3/209, 211, Nihayat al-Muhtaj 5/47, 48, an-Najm al-Wahhaj 5/52, 53, Kanz ar-Raghibin 2/861, ad-Dibaj 2/317).
The Hanbalis said: the agent of a restricted sale may not deviate from his principal except toward the better, and he holds of the disposition only what his principal's authorization requires, whether from the standpoint of the spoken word or from that of custom; for his disposition is by authorization, so he is restricted to what is authorized, and the authorization is known sometimes by the spoken word and sometimes by custom. If someone is mandated to dispose within a limited time, he may dispose neither before nor after, for his authorization does not embrace it either absolutely or by custom: the disposition may be preferred in the time of need; this is why, when Allah appointed a time for His worship, it is not permitted to advance it or delay it. So if he says to him: "sell my garment tomorrow", he may not sell it today nor after tomorrow; likewise if he specifies a place for him, according to the detail that will come.
If he deviates toward the better, selling above the price fixed for him, the sale is valid, even if the increase is of another genus; for he sold within what is authorized and bettered it with good, an increase that benefits without harming, and which custom requires; it resembles the mandate to buy followed by a purchase below the fixed price (al-Mughni 5/76, Kashshaf al-Qina' 3/559).
The majority of jurists, Hanafis, Malikis, Shafi'is according to the madhhab and Hanbalis, held that if the agent deviates from his principal toward the better, as when told: "sell this goods for a thousand" and he sold it for more, or decreases below what he was ordered in the purchase ("buy it for a thousand", and he buys it for less), the sale is valid and the principal has no option; for it is a thing desired, and the mere fact of deviation does not create an option: only a deviation upon which a valid purpose attaches creates it.
And because the authorization is of two kinds: an authorization derived from the spoken word, and an authorization derived from custom; and the custom is that one who accepts the sale of his goods for a thousand accepts selling it for more.
Except that the Shafi'is said: if he says to him: "sell it for a thousand, and do not sell for more", he may not validly sell it for more than a thousand; for the spoken word nullified the ruling of custom. There is a possibility with them: if the prohibition may mean "do not weary yourself seeking the increase", the sale is executed (cf. the previous sources).
The jurists differed: if the principal orders the agent to sell for cash and he sells on credit, is the sale void, or suspended upon the principal's authorization, who, if he ratifies it, validates it, otherwise returns it?
The majority of jurists, the Shafi'is and the Hanbalis, held that if the principal mandates him to sell him goods for a cash price, it is not permitted for the agent to sell it at a deferred price, whether the term be short or long, whether the credit sale benefits or harms; for he disposes only by his authorization, and he was not authorized in other than that.
The Shafi'is said: even if he sold it on credit, the goods sold remained until the term fell due and he received the price, it is not permitted, for the contract was concluded in a state of invalidity (al-Hawi al-Kabir 6/544, al-Bayan 6/436, al-Mughni 5/77, al-Sharh al-Kabir 5/225, al-Muharrar 1/350, al-Insaf 5/378).
The Hanafis held that the sale is not executed and remains suspended upon the principal's ratification: if he ratifies it, it is executed and binds him; if he returns it, it takes no effect against him.
Al-Kasani (may Allah have mercy on him) said: the agent of the sale, when restricted, has his restriction observed by consensus, to the point that if he violates his restriction, the sale is not executed against the principal, but is suspended upon his ratification; as if he were mandated to sell for a thousand dirhams cash and sold him for a thousand deferred: the sale is not executed but suspended, for what we said (Bada'i' as-Sana'i' 6/27, al-Jawhara an-Nayyira 3/500).
It is stated in the Majallat al-Ahkam al-'Adliyya and its commentary: if the agent was mandated to sell for cash, explicitly or implicitly, he may not sell on credit; for example, if the principal says: "sell this property for cash", or: "sell my property and pay off my debt", the agent may not sell that property on credit; for the restriction to sale for cash is meaningful and taken into account: in a credit sale, delivery of the goods sold precedes for the buyer, and the receipt of the price is delayed until the term falls due; in that case, if the buyer denied it or died insolvent, there is a risk that the price may perish and be lost; in a cash sale, that risk of loss does not exist: the restriction to sale for cash has therefore become meaningful and taken into account; if he sells the property and delivers it, he is liable as guarantor (Sharh Durrar al-Hukkam 3/629, 630, article 1498).
The Malikis said: whoever mandates someone to sell goods for cash, or without specifying cash or credit, when those goods are customarily sold only for cash, and the agent deviates by selling it, in both cases, on credit: the agent is in a state of transgression (mu'taddin) in his credit sale, whether or not the principal named the amount of the capital of the price.
The situation is never without one of two cases: his discovering that after the goods have perished or before their perishing.
If the goods have perished, it is not permitted for the principal to accept the deferred price; for the naming or the value is owed to him by the agent: if he named him a price, the naming; otherwise, the value; his subsequent consent to the deferred debt would be the cancellation of a debt for a debt, and if the value or the naming is less than the deferred price, which is the more frequent, it would result in selling a little for more, at a term: that is precisely riba according to the famous view. It is also said: he may consent to the deferred. It is also said: the principal may bind the agent to the value if he did not name, or to the naming if he named, the deferred price remaining until its term; the famous view prohibits that.
When the goods have not perished, his consent to the deferred price is not prevented; for his consent is then like the conclusion of a contract, and it was said earlier that if the agent deviates in the sale, the principal is offered the choice between returning the sale and ratifying it: likewise here, the principal is offered the choice of ratifying the sale at the deferred price, or returning the goods sold and taking back his goods, whether the agent named the price or not.
The principal may not bind the agent to the value nor to the naming; for it leads to giving little for much; and the ruling in that is that the deferred debt be sold: if it is sold and its proceeds cover the value of the goods when the principal named no price, or the naming when he named a price, the principal has no claim. And if what the debt is sold for does not cover the value in the first case, nor the naming in the second, the agent is fined to the principal's benefit for the shortfall; if it is sold for more, the principal takes all, for there is no profit for the transgressor.
The place of prohibiting consent to the debt along with the perishing of the goods sold is when the debt concluded in the sale exceeds the price or the value, as if it were ten, or when he says to him: "sell for ten" and he sells it for fifteen, on credit; but if the debt concluded in the sale equals the naming or the value of the goods sold, it is permitted for the principal to consent to it (al-Ishraf 3/81, no. 940, al-Sharh al-Kabir with the gloss of al-Dasuqi 5/71, 72, al-Taj wa'l-Iklil 4/212, 213, Mawahib al-Jalil 7/163, 164, Sharh Mukhtasar Khalil 6/79, 80, Tahbir al-Mukhtasar 4/287, 288).
The agent deviates from the principal who ordered him to sell on credit and he sells for cash: the situation is never without one of two cases.
First case: selling for cash at the very price for which he was ordered to sell on credit. The jurists differed: if the principal orders the agent to sell the goods on credit and he sells it for cash at the same price, as if he were mandated to sell it for a thousand dirhams on credit and sold it for a thousand cash.
The Hanafis, the Malikis according to one of the two views, and the Hanbalis according to the madhhab, held that the sale is valid; for it is a deviation toward the better: if it is a deviation in form, it is a conformity in meaning, for the one who ordered indicates it, so he acts by the principal's delegation, hence the execution; he bettered it with good, and it is permitted by custom, as if he were mandated to sell it for ten and sold it for more; and because the agent's sale for cash of the wealth entrusted to sale, on credit, at the price for which the order of sale was given, secures for the principal the higher price immediately, and spares him the risk arising from the buyer's insolvency or his denial of the price (Bada'i' as-Sana'i' 6/27, al-Bahr ar-Ra'iq 7/167, the gloss of Ibn Abidin 5/522, 523 and 7/335, Sharh Durrar al-Hukkam 3/630, al-Mughni 5/78, al-Insaf 5/382, 383, ar-Rawd al-Murbi' 2/62).
The Malikis said: if the principal says to the agent: "sell for a hundred on credit" and he sells for a hundred cash, or says: "buy for a hundred cash" and he buys for a hundred on credit, it binds the one who ordered according to one of the two views, the view of Ibn Abi Zayd; for had the buyer advanced the deferred price, acceptance would have been required. The second view, that of Ibn al-Labbad (may Allah have mercy on him): it is not valid; for the principal's argument in the matter of sale is to say: "I only said to you: for a hundred on credit, because I thought a hundred was its price at term; but if a hundred cash equals it, its price at term is higher".
And he says in the matter of purchase: "I only said to you: buy it for a hundred cash, thinking it equals more on credit; if he sells it for a hundred on credit, that equals less than a hundred cash". Ibn al-Hajib said: it is open to scrutiny; for had he advanced to him what he said, there would be no repudiation. It is stated in the Mudawwana: if you order him to sell it at a term and he sells it for cash, he owes the greater of what he sold it for, and the value for the excess; according to Ibn al-Qasim: whether you named him a price or not; the manifest sense of this statement is with Ibn al-Labbad; some interpreted it in favor of the principal: he set for the agent the lowest of prices, such that he only sells it at that number if he finds no more; and when he sold it at that number for cash, it indicates that he did not exaggerate in seeking prices; for one who buys at a cash price mostly buys what is worth more at term, however much the price increases with the term (at-Tawdih of Ibn al-Hajib 6/388, 389, ad-Dhakhira 8/14, 'Aqd al-Jawahir al-Thamina fi madhhab 'alim al-Madina 2/830, al-Mukhtasar al-Fiqhi 10/286, 289, Rawdat al-Mustibin fi Sharh Kitab al-Talqin 2/1175, Jami' al-Ummahat, p. 398).
Al-Lakhmi (may Allah have mercy on him) said: one who was ordered to sell goods for ten for a month, and sold it for that price for cash, it binds him; for advancing payment is an increase, and he is like one who sold for more; unless the one who ordered says: "seek ten or more, and do not sell for less": then one looks at what it is sold for over a month; if it is more, the one who ordered may rescind the sale, and if the buyer has disappeared with it, the one who ordered owes the greater between what it is sold for at a term and its value for cash. And if he orders him to deliver it in ten qafiz of wheat, at a term, it is likewise; for the habit is that people do not intend by the term the securing of the debt, and it is well known that they are keener on advancing payment; and if it is established that his aim was the securing of the debt, the sale may be rescinded and his goods returned to him (at-Tabsira 7/3010, al-Mukhtasar al-Fiqhi 10/288).
There is a possibility with the Hanbalis that this be examined: if he has no purpose in the term, the sale is valid; if he has a purpose in it, such as the price being among what must be safeguarded now, or what one fears may be lost, seized by others, or change its state by the time the term falls due, he is like one who was not authorized; for the ruling of cash does not embrace what is left unspoken, unless it is established that it is in his interest like the explicit text, or more: the ruling is then established by way of indication or parity; and once the explicit text carries a purpose proper to it, it is not permitted to forgo it, nor to establish the ruling for other than it (al-Mughni 5/78, al-Insaf 5/382, 383). There is a third view with the Hanbalis: the sale is not valid absolutely (al-Insaf 5/382, 383).
The Shafi'is said: if he is mandated to sell goods at a known term and sells it for cash at the price for which it is sold at the term: if the time is not safe from the price being stolen or plundered until the term, or its safekeeping involves a burden now, the sale is not valid, for there is in that a harm he did not consent to; if the time is safe, there are two views: the sounder of the two: the sale is valid, for he sold at the authorized price and bettered it with good by cash; the other: it is not valid, for he may have a purpose in the price remaining as a debt of a debtor until the term, for he may need it at that time, and when he receives it he may spend it (al-Bayan fi madhhab al-imam al-Shafi'i 6/432, al-Hawi al-Kabir 6/544, Rawdat al-Talibin 3/512).
The Hanafis, the Shafi'is and the Hanbalis held that if he sells for cash at less than what he was ordered to sell for on credit, the sale is not valid; for he deviates from his principal: he accepted the credit price over the cash price; and though he deviated toward the better from the standpoint of advancing payment, he deviated toward evil from the standpoint of the amount, and deviation toward evil in one respect suffices for prohibition; and because the price in a credit sale is higher than in a cash sale, and the aim of ordering a credit sale is to obtain a higher price; and since the seller has no need of the price immediately, the higher price is more beneficial to him (Bada'i' as-Sana'i' 6/27, al-Bahr ar-Ra'iq 7/167, the gloss of Ibn Abidin 5/522, 523, Sharh Durrar al-Hukkam 3/630, al-Bayan fi madhhab al-imam al-Shafi'i 6/432, al-Hawi al-Kabir 6/544, Rawdat al-Talibin 3/512, al-Mughni 5/78, al-Insaf 5/382, 383).
The Malikis said: the agent of the sale, if he deviates from what he was mandated in by selling below the price named by the principal, the principal is offered the choice of ratifying his act or returning it; he may return the goods if they exist, and their value if they have perished with the buyer, by valuation of the market if it rose, that being when he named no price. If the principal named the price and the goods have perished, he may fine the agent the full amount of the naming, unless the agent guarantees the increase: then it binds the principal, the deviation being removed (al-Sharh al-Kabir with the gloss of al-Dasuqi 5/64, 65, al-Taj wa'l-Iklil 4/205, Sharh Mukhtasar Khalil 6/75, Tahbir al-Mukhtasar 4/287, 288).
The Shafi'is and the Hanbalis affirm that when the principal fixes a term for the agent, he may not exceed it by selling for a longer term.
The Shafi'is said: if he authorizes him to sell it on credit, and fixes a term for him, he may not sell for a longer term, for that would contravene his authorization. And if he authorizes him to sell on credit without fixing the term, there are four views:
The Hanbalis said: if he fixes a term for him, increasing beyond it is not permitted, for he did not consent to it; and if he leaves the term open, it is permitted, carried upon custom in such a case, for the unrestricted mandate is carried upon the customary (al-Kafi 2/247).
It is likewise the import of the Hanafi madhhab: one never deviates from the principal. Al-Kasani said: the agent of the sale, when restricted, has his restriction observed by consensus, to the point that if he violates his restriction, the sale is not executed against the principal, but is suspended upon his ratification (Bada'i' as-Sana'i' 6/27, al-Jawhara an-Nayyira 3/500).
The jurists differed: if the agent deviates in the genus of the price, being mandated by the principal to sell him specific goods for a specific genus of price, and sells it for another genus, as when ordered to sell it for dinars and he sells it for dirhams or goods: is the sale valid or not?
The Hanafis, the Shafi'is and the Qadi among the Hanbalis held that if the principal specifies a specific currency for the agent, the agent may not sell for another, nor for goods, whether or not it is among the predominant currencies. The Shafi'is said: it is that he was not commanded with that, for authorization in a genus is not authorization in another genus; this is why, if he is authorized to buy a male slave, he may not buy a slave girl, and if he is authorized to buy a donkey, he may not buy a horse (al-Hawi al-Kabir 6/543, al-Muhadhdhab 1/353, Rawdat al-Talibin 3/514, al-Sharh al-Kabir 5/227, al-Mubdi' 4/370, al-Insaf 5/382).
The Hanafis said: if he is mandated to sell it for a thousand dirhams and sells it for other than dirhams, it is not permitted, even if its value exceeds a thousand dirhams, for it is a deviation toward evil; people's aims vary with the genera, so that is in the sense of deviation toward evil (Bada'i' as-Sana'i' 6/27, al-Fatawa al-Hindiyya 3/590).
The Hanbalis according to the madhhab, and it is a possibility with some Shafi'is, mentioned by al-Nawawi on the authority of Ibn Kajj and al-Ghazali: if the principal says to his agent: "sell it for a dirham" and he sells it for a dinar, or says: "buy it for a dinar" and he buys it for a dirham, the sale and the purchase are valid; for it is permitted by custom: one who accepts a dirham accepts a dinar in its place, and one who accepts giving a dinar accepts a dirham in its place.
The sale is not valid if he says: "sell it for a dirham" and he sells it for a garment worth a dinar: deviation from the principal, and custom does not require it. And if the principal says: "sell it for a hundred dirhams", and the agent sells it for a hundred garments whose value, that of the garments, exceeds the dirhams, the sale is not valid, by deviation; or if he says: "sell it for a hundred dirhams" and he sells it for eighty dirhams and twenty garments, the sale is not valid, even if the value of the garments is higher, by deviation in the genus (al-Mughni 5/79, al-Sharh al-Kabir 5/227, al-Mubdi' 4/370, al-Insaf 5/382, Kashshaf al-Qina' 3/555, ar-Rawd al-Murbi' 2/62, Sharh Muntaha al-Iradat 3/522, Matalib Uli an-Nuha 3/468).
And this statement of the Hanbalis applies to deviation toward the better, the dinar being dearer than the dirham; but if the reverse were supposed, that he says to him: "sell it for a dinar" and he sells it for a dirham, the sale is valid, and he guarantees the shortfall, according to the import of their madhhab.
As for the Malikis, they differed when the principal says to the agent: "sell for gold" and he sells for dirhams, or: "sell for dirhams" and he sells for gold, and likewise in purchase: does it bind the principal, or does he have the option? Two famous views, according to whether the two are two genera or a single genus.
The first: the principal has the choice between ratification and rescission, on the basis that they are two distinct genera; for if he deposited dinars with him, he borrowed them and repaid them in dirhams, all agree that he is not released; and if the capital of the qirad was in dinars and the worker repaid it in dirhams, the owner of the capital is not bound to accept it.
The second: it binds the principal, and he has no option, for they are a single genus by custom. Al-Lakhmi said: it is that each of the two fills the place of its counterpart, unless it is established that it was for the purpose of the one who ordered: the sale is then returned if it exists, and if it has perished and the buyer is absent, the one who ordered has the option between ratifying, or selling at the price and buying for him what he was ordered. The place of the two views is when gold and dirhams are the currency of the land, at the market price, and the goods are among what is sold for it, and the value of the gold and the dirhams is equal; otherwise, his principal has the option by a single view (al-Sharh al-Kabir with the gloss of al-Dasuqi 5/66, 67, al-Taj wa'l-Iklil 4/207, Mawahib al-Jalil 7/157, Sharh Mukhtasar Khalil 6/76, Tahbir al-Mukhtasar 4/289).
The jurists differed: if the principal specifies for the agent a specific place, a specific town or market, to sell in, and he deviates by selling elsewhere: is the sale valid and binding upon the principal, or is it not valid, or suspended upon the principal's ratification, who, if he ratifies it, validates it, otherwise returns it?
The Shafi'is and the Hanbalis held that if the principal specifies the place for the agent and a manifest purpose attaches to it, such as ordering him to sell his garment in a market known for the good quality of its currency, the highness of its prices, its lawfulness, the uprightness of its people or the affection between the principal and them, the authorization is restricted to it, and he may not sell elsewhere; for he expressly prescribed a command carrying a purpose, which he therefore may not forgo.
If it and another are equal in purpose, the authorization is not restricted to it, according to the Hanbalis and the Shafi'is in one view, and he may sell elsewhere; for the intended aim is the sale, which equals the one expressly prescribed in purpose; his express prescription of one of the two is therefore an authorization for the other, as if he rented or borrowed land to grow something: an authorization to grow its like and less, whether or not the price was fixed, according to the Hanbalis; and this when he does not forbid him otherwise: if he forbade it, the sale is not valid, categorically.
The Shafi'is, in the other view which is the sounder of the two, said: he may not sell elsewhere; for, in expressly prescribing it, he indicated that he intended that specific item for a meaning whose detail he knows better, a right or otherwise; his deviation is therefore not permitted, and he guarantees the price and its counter-value, that being if he did not fix the price; if he says: "sell in such a market for a hundred" and he sells for a hundred elsewhere, it is permitted (al-Hawi al-Kabir 6/542, Rawdat al-Talibin 3/510, Mughni al-Muhtaj 3/210, Nihayat al-Muhtaj 5/47, 50, an-Najm al-Wahhaj 5/52, 54, Kanz ar-Raghibin 2/861, al-Mughni 5/76, al-Sharh al-Kabir 5/236, al-Mubdi' 4/375, al-Insaf 5/390, Kashshaf al-Qina' 3/560, Sharh Muntaha al-Iradat 3/526, Matalib Uli an-Nuha 3/470).
Close to the madhhab of the Shafi'is and the Hanbalis is the Hanafi madhhab: the Hanafis said that if the principal orders his agent to sell in such a market and it carries a purpose whose observance is required, the matter holds if he emphasized it by negation ("sell it only in such a market"): it must be observed; and if he does not emphasize it by it, it is not required, as in: "sell it in such a market" (the gloss of Ibn Abidin 5/523).
The Malikis said: when the principal says to his agent: "sell only in such a market", he must abide by his word and sell only in the market he delimited; if he deviates, the option is established for the principal: if he wishes, he ratifies his act; if he wishes, he returns it; he may return the goods if they exist, and their value if they have perished, whether or not the delimited market is a place where purposes differ.
Ibn Shas (may Allah have mercy on him) said: the principal is offered the choice only if the delimited market is a place where purposes differ (al-Sharh al-Kabir with the gloss of al-Dasuqi 5/61, 62, al-Taj wa'l-Iklil 4/203, Sharh Mukhtasar Khalil 6/73, Tahbir al-Mukhtasar 4/285, al-Sawi's gloss on the Sharh al-Saghir 8/76, al-Mukhtasar al-Fiqhi 10/279, al-Bahja fi Sharh al-Tuhfa 1/326, Sharh az-Zurqani 6/143).
The jurists differed: if the principal specifies for the agent a specific time and he deviates by selling before or after it: is it valid, invalid, or suspended upon the principal's ratification?
The Hanafis, the Shafi'is and the Hanbalis held that if the principal specifies a precise time for the agent, it is settled, and the agent may not sell before that time nor after it; for his authorization does not embrace it either absolutely or by custom: the disposition may be preferred in the time of need; this is why, when Allah appointed a time for His worship, it is not permitted to advance it or delay it. So if he says to him: "sell my garment tomorrow", he may not sell it today nor after tomorrow. The prohibition before is because the time of authorization has not come; the prohibition after, because of the lapsing of the agency by expiry; and a person may have a true purpose in keeping his ownership until a precise time (al-Hawi al-Kabir 6/542, Rawdat al-Talibin 3/510, Mughni al-Muhtaj 3/210, Nihayat al-Muhtaj 5/47, 50, an-Najm al-Wahhaj 5/52, 54, Kanz ar-Raghibin 2/861, al-Mughni 5/76, al-Sharh al-Kabir 5/236, Kashshaf al-Qina' 3/560).
With the Hanafis, there are two reports if it is said: "sell it today" and he sells it tomorrow. The Hanafis said: if he says: "sell it tomorrow", he may not sell it today; if he says: "sell it today" and he sells it tomorrow, there are two reports: some say the sound view is that the agency does not survive the day. Other Hanafis hold that the agency survives the day; for the mention of the day aims at hastening, not at limiting the agency to the day, unless evidence indicates otherwise.
Ibn Abidin (may Allah have mercy on him) said: in the Bazzaziyya: the agent for ten days: his agency does not end with the passing of the ten days, according to the sounder view (the gloss of Ibn Abidin 7/268, 269 and 5/523, al-Bahr ar-Ra'iq 7/141, al-Hindiyya 3/567).
The Malikis said: the principal, when he specifies a time for his agent, saying: "sell only at such a time", it is settled, and he may not sell before nor after; if he deviates by selling outside the delimited time, the option is established for the principal: if he wishes, he ratifies his act; if he wishes, he returns it; he may return the goods if they exist, and their value if they have perished, whether or not the purposes differ with the delimited time.
Ibn Shas (may Allah have mercy on him) said: the principal is offered the choice only if the delimited time is a place where purposes differ (al-Sharh al-Kabir with the gloss of al-Dasuqi 5/61, 62, al-Mukhtasar al-Fiqhi 10/279, al-Taj wa'l-Iklil 4/203, al-Bahja fi Sharh al-Tuhfa 1/326, Sharh az-Zurqani 6/143, Sharh Mukhtasar Khalil 6/73, Tahbir al-Mukhtasar 4/285, al-Sawi's gloss on the Sharh al-Saghir 8/76).
The majority of jurists, Hanafis, Shafi'is and Hanbalis, held that if the principal specifies for the agent a specific person to sell to, he may not sell to another; if he deviated and sold to another, the sale is not permitted, whether or not the price was fixed for him; for the principal may have a purpose in transferring ownership to him specifically, and his wealth may be further removed from suspicion.
Unless the agent knows, by indication or explicitly, that the principal has no purpose in the person of the buyer: then selling to another is permitted, as the Shafi'is and the Hanbalis expressly state.
Ibn Qudama (may Allah have mercy on him) said: if he specifies the buyer for him, saying: "sell it to so-and-so", he does not hold the sale to another, with no divergence known to us, whether or not the price was fixed for him; for he may have a purpose in transferring ownership to him specifically, unless the agent knows, by indication or explicitly, that he has no purpose in the person of the buyer (al-Mughni 5/76, al-Sharh al-Kabir 5/236, 237).
Al-Mawardi (may Allah have mercy on him) said: his authorization to sell it to a specific man is binding, and the agent may not turn to selling it to another; for he is the one intended in the transfer of ownership, like the gift: the agent's turning away from him is therefore not valid. On this basis, if that man dies, the mandate of sale lapses, and it is not permitted for the agent to sell it to his heir nor to other than him; and if he is alive and refuses to buy it, the mandate does not lapse, since he may desire it later (al-Hawi al-Kabir 6/542, Rawdat al-Talibin 3/510, Mughni al-Muhtaj 3/209, Nihayat al-Muhtaj 5/47, an-Najm al-Wahhaj 5/52, Kanz ar-Raghibin 2/861, ad-Dibaj 2/317).
The Malikis said: if he says to him: "sell from Zayd", he does not sell from another; if he deviated and sold from another, the option is established for the principal: if he wishes, he ratifies his act; if he wishes, he returns it (ad-Dhakhira 8/13, al-Mukhtasar al-Fiqhi 10/279, al-Taj wa'l-Iklil 4/203, al-Bahja fi Sharh al-Tuhfa 1/326, Sharh az-Zurqani 6/143).
When the principal orders his agent to sell specific goods and he deviates by selling only part of them without selling the rest, or selling part and then the rest afterwards, the situation is never without one of two cases.
First case: a splitting that does not harm the principal. The majority of jurists, Hanafis, Shafi'is and Hanbalis, held that if the agent sells part of what he was mandated to sell, when it is among what is not harmed by splitting, such as the measured and the weighed: if he was agent for the sale of two slaves, two properties or two animals and sold one of them, it is permitted and the sale is valid with splitting; for it is among what is not harmed by splitting, so there is no harm to the principal in selling part of it; unless the principal orders him to sell them in a single transaction: then it is not valid according to the Hanbalis (al-Mabsut 19/53, Bada'i' as-Sana'i' 6/28, 29, Tabyin al-Haqa'iq 4/272, al-Bahr ar-Ra'iq 7/170, al-Muhadhdhab 1/353, al-Sharh al-Kabir of ar-Rafi'i 5/257, Mughni al-Muhtaj 3/218, 219, Asna al-Matalib 2/280, al-Mughni 5/76, al-Insaf 5/384, 385).
Second case: a splitting that harms the principal. The jurists differed: when the splitting harms the principal, is the sale valid, suspended upon the principal's ratification, or void? The Shafi'is, the Hanbalis and the two companions of the Hanafi school, Abu Yusuf and Muhammad, held that contracting upon part is not permitted, as if he were mandated to sell a property or an animal and sold part of it; for it is not customary, because of the harm it involves, and the authorization was not found in it either by spoken word or by custom: it is therefore not permitted, as if he were mandated to buy a slave and bought half of him; and because the custom is to contract upon the whole, the agency is carried upon that, unless he sells part of it for the price of the whole: the sale is valid according to the Shafi'is and the Hanbalis according to the madhhab, for it is permitted by custom: one who accepts a hundred as the price of the whole accepts it as the price of the part; and because the hundred reached him, and he left him an increase that benefits without harming; and he may sell the other half, for it is permitted, as if he sold the whole slave above its price.
There is a possibility with the Hanbalis that selling the other half is not permitted; for the principal's purpose was achieved through the price obtained from selling a part, and he may not choose to sell the remainder, being content with what reached him of the price of the part. It is likewise.
Unless the one who ordered ratifies it, or he sells the other half before they fall into dispute, according to Abu Yusuf and Muhammad, and the Hanbalis according to the sound view with them; for the sale of the half may be a means of complying with the order: if he finds no one to buy it wholesale, he needs to split it; when he sells the remainder before the first sale is rescinded, it becomes apparent that it was a means; and if he does not sell, it becomes apparent that it was not: so it is not permitted; and this is an istihsan with Abu Yusuf and Muhammad.
There is a view with the Hanbalis: the sale is not valid absolutely (al-Hidaya, Sharh al-Bidaya 3/146, al-Ikhtiyar 2/194, al-Bahr ar-Ra'iq 7/170, al-Ashbah wa'l-Nazair, p. 250, al-Jawhara an-Nayyira 3/504, 505, al-Lubab 1/566, Majma' al-Anhar 3/327, al-Durr al-Mukhtar 5/524, al-Fatawa al-Hindiyya 3/590, al-Muhadhdhab 1/353, al-Sharh al-Kabir of ar-Rafi'i 5/257, Mughni al-Muhtaj 3/218, 219, Asna al-Matalib 2/280).
Imam Abu Hanifa (may Allah have mercy on him) held that the sale is valid; for the word is unrestricted from the restriction of separation and togetherness: do you not see that if he sold the whole for the price of the half, it would be permitted? If he therefore sells the half for that price, it is more fitting (Bada'i' as-Sana'i' 6/28, 29, al-Hidaya, Sharh al-Bidaya 3/146, al-Ikhtiyar 2/194, al-Bahr ar-Ra'iq 7/170, al-Ashbah wa'l-Nazair, p. 250, al-Jawhara an-Nayyira 3/504, 505, al-Lubab 1/566, Majma' al-Anhar 3/327, al-Durr al-Mukhtar 5/524, al-Fatawa al-Hindiyya 3/590).
As for the Malikis, the rule with them is that the agent of the sale, if he deviates from what he was mandated in, or deviates from habit and custom in the unrestricted sale, the principal is offered the choice between ratifying his act or returning it; he may return the goods if they exist, and their value if they have perished with the buyer (al-Sharh al-Kabir with the gloss of al-Dasuqi 5/64, 65, al-Taj wa'l-Iklil 4/205, Sharh Mukhtasar Khalil 6/75, Tahbir al-Mukhtasar 4/287, 288).
When the principal orders his agent to sell specific goods and he deviates by selling other goods in their place, the jurists differed regarding the ruling of this sale.
The majority of jurists, Hanafis, Shafi'is and Hanbalis, held that the sale is not valid; for he deviates from his principal and sells other than what he was mandated to sell; the agency attached to that specific item, linked to it as such, and that is among what is determined by specification in the contract (al-Mabsut 14/66, Ghayat al-Bayan, Sharh Zubdat Ibn Ruslan, p. 209, al-Kafi 3/157).
As for the Malikis, the rule with them is that the agent of the sale, if he deviates from what he was mandated in, or deviates from habit and custom in the unrestricted sale, the principal is offered the choice between ratifying his act or returning it; he may return the goods if they exist, and their value if they have perished with the buyer (al-Sharh al-Kabir with the gloss of al-Dasuqi 5/64, 65, al-Taj wa'l-Iklil 4/205, Sharh Mukhtasar Khalil 6/75, Tahbir al-Mukhtasar 4/287, 288).