Niyaba (representation and agency: contractual and legal, and substitution in worship)

نِيابة

Niyaba in the lexical sense is making another one's deputy in a matter; technically it is one person's standing in for another in an act. ¹ It differs from wilaya, qawama, wakala and wasiyya; niyaba is the wider notion. ¹ ² There are two kinds: the contractual, which is agency, and the legal, which is guardianship over those unable to act for themselves through youth or the like. ³ ⁴ Legal guardianship is over property or over the person. ⁴ In purely financial worship, such as zakat, expiations and vows, substitution is permitted by agreement; in purely bodily worship, such as prayer and fasting, it is not; in worship of body and wealth, such as the pilgrimage and the lesser pilgrimage, it is permitted under conditions: the principal must be permanently unable and must have funds, and for the Hanafis, Shafi'is and Hanbalis the deputy must have performed his own pilgrimage first. ⁵ ⁶ ⁷ ⁸ Pilgrimage on behalf of the dead is treated separately for obligatory and voluntary acts; hiring for the pilgrimage on behalf of the dead is permitted by the Malikis, Shafi'is and in one Hanbali report, and forbidden by the Hanafis. ⁹ ¹⁰ Substitution in sacrifice and in stoning is permitted; the jurists differ on substitution in offices. ¹¹ ¹²

Summary

Niyaba in the lexical sense is making another one's deputy in a matter; technically it is one person's standing in for another in an act. ¹

Related terms

Niyaba differs from wilaya, qawama, wakala and wasiyya; it is the wider notion. ¹ ²

The two kinds

Contractual representation is agency (wakala); legal representation is guardianship over those unable to act through youth or the like, and it is over property or over the person. ³ ⁴

Substitution in worship

Substitution is permitted in purely financial worship, such as zakat, expiations and vows, and not in purely bodily worship, such as prayer and fasting. ⁵ ¹³ It is permitted in the pilgrimage and the lesser pilgrimage under conditions, among them that the principal is permanently unable and has funds, and that the deputy has first performed his own pilgrimage, according to the Hanafis, Shafi'is and Hanbalis. ⁶ ⁷ ⁸ ¹⁴

Pilgrimage for the dead and hire

Hiring for the pilgrimage on behalf of the dead is permitted by the Malikis, Shafi'is and in one Hanbali report, and forbidden by the Hanafis. ⁹ ¹⁰

Sources

al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.16677

al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.16678

al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.16679

al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.16680

al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.16681

al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.16683

al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.16684

al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.16685

al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.16696

al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.16699

al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.16695

al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.16700

al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.16682

al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.16686

Allusion to a proposal during the waiting period

In his commentary on verse 235, Sha'rawi holds that allusion to a proposal to a woman in her waiting period is allowed, while open declaration and a secret promise are forbidden, and that the firm resolve to marry may not be made until the waiting period ends. He reads the contract as passing through three stages: allusion, resolve, and the contract.