Wakala (agency, fiqh)

وَكالة

Wakala, with its vowel variants, means in the language protection, as in the Divine name al-Wakil meaning the Guardian, and in tawakkul ('we have entrusted our affairs to God'); tawkil is the delegation of a disposal to another. The agent is called wakil because his principal has entrusted him with the conduct of his affair. ¹ The jurists define it in several ways. The Hanafis: setting another in one's place in a lawful, known disposal, out of ease or incapacity. The Malikis: the deputising of a person with a right, who has no command or worship, for another in what is not conditioned on his death. The Shafi'is: the delegation by a person of what he may do and that admits delegation, to another to do it during his life. The Hanbalis: the deputising of a person capable of disposing of property, like himself, in what deputising admits of rights of God and rights of men. ^{1 2}

The Mawsu'a distinguishes wakala from neighbouring terms: deputising (niyaba), which is for some jurists wider than wakala and for others its synonym; authority (wilaya), the carrying out of a word over another whether he wills it or not, which is a legal or compulsory deputising, while wakala is agreed; bequest (iya'), the setting of another in one's place in disposal after death, while wakala is in life; and guardianship (qiwama), a power given by the judge to an adult to act for a minor's interest, or the husband's authority over his wife. ²

The jurists agree that wakala is lawful. They cite the Qur'an: the account of the People of the Cave sending one of them with their silver to the city, and the verse of the two arbiters in Surat al-Nisa, which is taken to show that each arbiter acts as agent of one of the spouses. ³ They cite the Sunna: the report of 'Urwa ibn Abi al-Ja'd al-Bariqi, to whom the Prophet ﷺ gave a dinar to buy a sheep; the report of Hakim ibn Hizam (may God be pleased with him) about buying a sacrifice; the report of Jabir about the agent at Khaybar; and the report of Abu Rafi' that he was the go-between in the Prophet's marriage to Maymuna. The jurists agree on its lawfulness from the time of the Prophet to the present. ^{3 4} By reason, the need for it is clear, since a person may be unable to act himself by illness, age or rank, and without it hardship would follow, which the text removes. ⁴

The pillars of wakala: the majority hold them to be the formula, the two parties (principal and agent) and the object of the agency. The Hanafis hold that the pillar is the offer and acceptance, since their presence entails the other two. ⁴ The formula is the offer and acceptance, through which mutual consent is expressed. ⁴

The offer. The majority hold it is what comes from the principal and shows his permission to appoint an agent; the Hanafis hold it is what comes first from one of the contracting parties to show his desire to make the contract. ⁵ It may be made by any sign of consent, in words, in writing, by message or by the sign of a mute man. ⁵ Explicit words include 'I appointed you', 'I entrusted to you', 'I made you my deputy', 'I permitted you', 'I set you in my place' and 'you are my agent'. An order such as 'sell it' is valid for the Hanafis, Shafi'is and Hanbalis, and for the Malikis where custom so treats it. ⁶ The words 'I will appoint you', 'I appoint you' and 'I have relied on you' do not make a valid agency for the Shafi'is, since they are ambiguous, unless a clear term is added. ^{6 7}

Agency may be concluded by message, according to the Hanafis, Malikis and Shafi'is: the agent becomes agent once the news reaches him and he accepts, whether the bearer is trustworthy or not. ^{6 7} The offer may also be made by clear writing, by the understood sign of a mute man, by an act that shows permission (for the Hanbalis), and by what custom treats as an offer, as when a husband disposes of his wife's property while she knows and keeps silent (the Malikis). ^{7 8} Silence is not an offer for the Hanafis, Shafi'is and Hanbalis: one who sees a stranger sell his property and says nothing is not made an agent by his silence. ⁸

The acceptance may be given in words, such as 'I accept' or words showing acceptance. The Hanafis and Shafi'is add that the agent must not refuse; if he refuses after the offer, no agency is concluded even if he accepts later, unless the offer and acceptance are renewed. ^{8 9} On acceptance by act there are three views. The majority (Hanafis, Malikis, the sounder Shafi'i view, and the Hanbalis) hold that it is complete by any act that shows it, such as the agent doing what he was told; the Shafi'is in one view, the Hanbalis in one view and Zufar among the Hanafis hold that it requires words; a third Shafi'i view distinguishes: if the offer is in the form of a command such as 'sell and buy', acceptance by act suffices, but if it is in the form of a contract such as 'I appointed you', words are needed. ⁹ Acceptance is also valid in clear addressed writing and by the understood sign of a mute man; the Hanafis hold that an agent's silence is acceptance, which is undone by his refusal. ⁹

If acceptance is delayed after the offer, the majority (Hanafis, Hanbalis, the Shafi'i school view, and one Maliki view) hold that it is valid, since the permission remains while the principal does not withdraw it, and it is like a permission to act. The Shafi'is limit this to cases where the time of the act is not fixed; if it is fixed and there is fear of its passing, acceptance must be immediate, as also when the judge offers the agency to a man on its being established before him. ¹⁰ The second Maliki view and Abu Hamid al-Marwarudhi among the Shafi'is hold acceptance must be immediate, because wakala is a contract made in life, and like sale it requires immediate acceptance. ¹⁰ Al-Mazari said the matter returns to intention and custom: whether the words in question call for an immediate reply, or allow a prompt or a deferred one. ¹⁰

The forms of the wakala formula, by the time at which its effects arise, are: the immediate form, which is neither conditioned on a condition nor linked to a time; the conditional form; the form attached to the future; and the time-limited form. ¹⁰

The immediate formula, which is neither conditioned on a condition nor linked to a time, as in the principal saying 'I appointed you to sell that house', is valid by agreement of the jurists. ¹¹

The formula conditioned on a condition. The jurists differ on two views. The first, held by the Hanafis, the sounder Hanbali view and, against the sounder view, the Shafi'is, is that it is valid, as in 'if the pilgrim arrives, sell this food'. They cite the report of Ibn 'Umar that the Prophet appointed Zayd ibn Haritha (may God be pleased with him) to command at Mu'ta, then Ja'far, then Ibn Rawaha if the first two were killed; and they argue that the agency is a contract whose effect on the agent, the permission to act, is recognised, so it is like a bequest. ¹¹ The second, held by the sounder Shafi'i view and one Hanbali view, is that it is invalid; al-Mawardi says conditioning an agency on conditions or terms is void. ¹¹ The Shafi'is allow the principal to conclude the agency now and to make the act itself subject to a condition, as in 'sell it after a month', since that is postponement, not conditioning. Al-Ghazali reports that the Iraqis held that 'I appointed you now, but do not act until a month passes or a certain man arrives' is valid, since it is a delay, and the agent must comply. ¹¹

The periodic formula: the principal says 'I appointed you to sell this property, and whenever I remove you, you are my agent again', so the agency renews itself each time he removes the agent. ^{11 12} The Hanafis and the sounder Hanbali view hold it valid, on the ground that agency admits conditioning; for the Hanafis the principal may remove his agent at any time, and for the Hanbalis removal is effected by his words 'I removed you, and whenever I appoint you, I have removed you'. ¹² Ibn Taymiyya holds it invalid, since it would turn a permissive contract into a binding one; the purpose of the conditional is to prevent appointment, not to dissolve a contract before it exists. ¹² The Shafi'is have two views on its validity at once; the sounder is that it is valid, because permission exists. If he removes the agent, and the agent did not know, or knew, there are two views on whether the agency returns after removal; the sounder is that it does not. If the words are 'whenever I remove you', the agency returns once; if they are 'every time I remove you', it returns each time. ^{12 13}

The formula attached to a future time, as in 'I appointed you to sell my beasts in Ramadan', or 'I appointed you to sell this house tomorrow'. The Hanafis and Hanbalis hold it valid, since agency admits being attached to the future; the Hanafis add that the agent becomes agent from tomorrow onward and not before. The Shafi'is agree that it is valid, since the agency is concluded now and only the act is linked to a future time. ¹³

The formula conditioned on a time, as in 'when the new month comes, I appointed you to sell my house': on the sounder Shafi'i view it is void, since conditioning an agency on terms is invalid; the Hanafis, Hanbalis and the opposite Shafi'i view hold it valid. ¹³ The Hanafis distinguish attachment (idafa) from conditioning (ta'liq). An attached formula is a cause that concludes the contract now while its effect is deferred to the time; a conditioned formula cannot be a cause of the effect now, so the agency is not concluded until the condition is met. ¹³

The time-limited formula, as in 'you are my agent for a month', is valid by the jurists. ¹⁴ They differ whether it survives the period. The Shafi'is hold that it does not survive the period. The Hanafis report two views on one who was told 'sell my house today' and did it tomorrow: the sounder view is that the agency does not survive the day, but some Hanafis hold it survives, since naming the day is for haste, not for limiting the agency to that day. Al-Bazzaziyya, quoted by the author of Minhat al-Khaliq, holds that an agency for ten days does not end when the ten days pass, on the sounder view. ¹⁴

Conditions attached to the agency. If the condition is invalid, the Hanafis, Ahmad in the apparent of his two reports, and Ibn Abi Layla hold that the agency is not invalidated by any invalid condition. The Shafi'is hold that an invalid condition invalidates it, as when the principal says 'prevent the buyer from taking the goods', since to prevent a right-holder from taking possession is forbidden; the sale itself is valid by permission. ^{14 15} Al-Zarkashi says that the permissive contracts (partnership, agency and mudaraba) are not stopped from taking effect by permission when they are invalid, but lose their own features. ¹⁵ The effect of invalidity is that a named fee falls away and the customary fee is due. ¹⁵ Some Hanbalis hold that the agency is void, like a deposit, because the trust is gone; and Abu Muhammad among the Shafi'is says the permission is not separate from the agency, so its invalidity means the permission is void. ^{15 16}

The nature of the agency contract, whether binding or permissive. The first view, held by the Hanafis, Shafi'is, Hanbalis and some Malikis, is that it is permissive on both sides, since it is a gift and gifts are not binding: the principal may see that it is better to leave the matter, or to appoint another, and the agent may not be free. ¹⁶ The Hanafis and Malikis except where a third party's right attaches to the agency, which then binds, as with an agent in a suit appointed at the claimant's request, or an agent to sell a pledge in the presence of the pledgee. ¹⁶ The Hanafis say that from its non-binding nature three rules follow: an option of stipulation does not enter it; agency is not valid as a principal claim; and the agent may resign whenever he wishes. ¹⁶ The second view: if the agency is for a fee in the form of a hire, it binds both sides and must meet the conditions of hire; the Shafi'is and in one view the Malikis say so. ^{16 17} The third view, of some later Malikis, is that it binds the agent's side even without a fee, by analogy with a gift that binds once given, though not received. ¹⁷ If the agency is by way of a reward (ju'ala), the Malikis hold three views: binding on both sides; permissive on both sides, which is the view relied upon by the Shafi'is; and binding on the side of the one who offers the reward once the other starts work. ¹⁷

The second pillar, the two parties, the principal and the agent. First, the principal: one who sets another in his place in a lawful known disposal, who must have the power to make that disposal and be bound by its rules. ¹⁷ The jurists agree that agency may not be made by an insane person, an imbecile, a person under anaesthesia, a sleeper, or a minor who cannot discern, in any disposal. ¹⁷

A discerning minor may be appointed to acts that are purely beneficial to him, by agreement. For acts that are between benefit and loss, the Hanafis, Malikis and Hanbalis allow it with the guardian's permission, while the Shafi'is void it. ¹⁸ A spendthrift placed under restraint may not be appointed in what he cannot do independently, but may be in what he can. ¹⁸

The majority of jurists do not allow a woman to be appointed in a marriage, since she does not marry herself and so cannot be an agent for it; the Hanafis allow it, and the Malikis allow it in some cases. ¹⁸

On the appointment of an apostate there are three views. The first, held by the majority (the sounder Shafi'i view, the Hanbalis and Abu Hanifa), is that it is suspended on his return to Islam: if he returns the agency takes effect, and if he dies, is killed or joins the enemy as an apostate, it is void. The second, held by the two companions of Abu Hanifa and by one Shafi'i view, is that it is valid and binding; the Hanafis add that an apostate woman may be appointed by their agreement, since her acts take effect. The third, a Shafi'i view that Zakariyya al-Ansari and al-Shibramallisi regarded as the sound one, is that it is void. ^{18 19}

On a Muslim appointing a dhimmi to sell wine or pork: the Shafi'is, Malikis, Hanbalis and the two companions hold it invalid, because a condition of the agency is that the principal himself owns the act he delegates, and a Muslim cannot sell wine or pork; one cannot give what one lacks. Abu Hanifa holds it valid, since it is enough that the principal has the capacity to act that entitles him to appoint another. ¹⁹

On a pilgrim (muhrim) appointing a non-pilgrim to contract a marriage: the majority do not allow it, since the pilgrim does not conduct the contract during his pilgrimage; the Hanafis allow it in every case, since he could conduct the contract himself. ¹⁹ The Hanbalis say that agency is invalid if the agent does not know his principal, as when he is told 'Zayd has appointed you' without a name or a description that identifies him. ¹⁹

The agent must have the same sanity as the principal, so an insane person, an imbecile or a minor who cannot discern may not be an agent, by agreement. ¹⁹ On puberty as a condition: the Hanafis and Hanbalis allow a discerning minor who understands the contract and intends it to be an agent, and the rights of the contract return to the principal, not to him; their evidence includes the report that the Prophet married Umm Salama through 'Amr ibn Umm Salama, who was a boy. The Shafi'is forbid it, because a minor is not accountable and cannot dispose of his own right, so he cannot dispose of another's by appointment. ²⁰ The agent must be named: if someone says 'I appointed one of the people to sell this goods', the agency is void, because the agent is unknown. ²⁰ Ibn Najim says that a creditor's words to his debtor, 'whoever comes to you with a certain sign, and takes your finger, or says such and such to you, pay what I owe him', are an unknown agency that does not discharge the debtor if he pays. ²¹

Knowledge of the agency. For the Hanafis, knowledge of the agency is a condition, either by the agent or by the party dealing with him. If the agent sells before he knows and the buyer knows, the sale is not valid until the principal or the agent ratifies it after knowledge. If a trustworthy man informs the agent, and the agent accepts, he is an agent; if one who is not trustworthy informs him and he accepts, he is an agent; if he does not accept, Abu Hanifa holds he is not an agent, while Abu Yusuf and Muhammad hold he is. ²² The Hanbalis do not require knowledge, since the matter of contracts is what is actually the case; the sounder Shafi'i view agrees. ²² Justice in the agent is not required in general, except in certain contracts such as marriage; nor is the male sex, except in some contracts such as marriage. ^{22 23}

The object of the agency is the disposal the principal permits the agent, in ownership or in guardianship. The Shafi'is set three conditions: it must be known in some respects; it must admit deputising; and the principal must own it at the time of the agency. ²² Agency is special, where it concerns a named disposal and the agent may act only in that, by agreement; or general. ²³ On general agency the Hanafis and Malikis allow it with detail. The Hanafis say that 'you are my agent in every small and great matter' gives only the power to keep; 'you are my agent in every matter your order permits' makes the agent competent for all money dispositions, such as sale, purchase, gift and alms; they differ on divorce, emancipation and waqf, and the view taken is that the agent does not have those, which the author of al-Bazzaziyya also holds. ²³²⁴ The Malikis say that a general agency is not concluded by the bare words 'I appointed you'; it must be delegated in words such as 'a delegated agency' or 'in all my affairs'. What increases property is allowed; gifts, emancipation and alms for the reward of the next life are not, unless the principal permits them in words. ²⁴ The Shafi'is and Hanbalis hold a general agency invalid because of the risk. 'I appointed you in all my small and great matters' or 'I delegated to you everything' is therefore invalid, while 'I appointed you to sell my goods and collect my debts' is valid even if the goods and debts are unknown. ²⁴

The general rule for what may be the object of an agency is that whatever contract a person may make himself, he may appoint another to make, because a person may be unable to act himself in some circumstances and so needs to appoint another. ^{24 25} The jurists agree that agency in sale and purchase is valid, because there is a need for it. The Prophet himself appointed 'Urwa al-Bariqi to buy a sheep, and gave a dinar to Hakim ibn Hizam to buy a sacrifice. ²⁵ They also agree that agency is valid in assignment of debt (hawala), pledge, surety, partnership, deposit, mudaraba, reward contracts (ju'ala), irrigation partnership (musaqa), hire, loan, bequest, rescission, release, exchange (musarafa), cancellation (iqala) and pre-emption, since all of these are like sale in their need for an agent; likewise surety, settlement and gift. ²⁵

The jurists agree that a man may appoint an agent in a marriage contract, citing the Prophet's appointment of 'Amr ibn Umayya (may God be pleased with him) and Abu Rafi' to accept a marriage for him; the need for it, since a man may wish to marry from a far place and cannot travel there; and the Prophet's marriage to Umm Habiba while she was in the land of Abyssinia. ²⁶

They agree that agency is valid in financial acts of worship, such as zakat, charity, vows and expiations, since the Prophet sent his agents to collect and distribute charity. ^{26 27} They also agree that agency is valid in divorce, revocation and khul', since the need is like the need for agency in sale and marriage. ²⁶

Acts that agency may not cover, by agreement. Testimony: agency is not valid in it, because it depends on the witness himself, who reports what he saw or heard, and because it rests on devotion and certainty; if a witness appoints another to testify, the second acts as a witness on the first witness's testimony and not as an agent. ²⁶ Oaths and vows, since they depend on the swearer or vower himself; so do the oaths of mutual cursing, the vow of abstinence from wives and the oath of compurgation. ²⁷ Sins, such as killing, theft, usurpation and slander, which are forbidden and may not be done by the principal or the agent. ²⁷ And purely bodily worship, such as prayer, fasting and the purification from minor impurity, since they depend on the body of the one obliged. ²⁷

Matters on which the jurists differ. The pilgrimage: agency is not allowed for a person able to make it himself; the incapable person's case is set out elsewhere. ²⁷ The lesser pilgrimage (umra) may generally be performed on behalf of another by agency. ²⁷ Marriage by a woman: most jurists forbid a woman to appoint or be appointed in marriage, since she may not contract it herself; the Hanafis allow it for a free adult sane woman. ²⁸ Zihar: the majority forbid agency in it, the sounder Shafi'i view forbids it, and a Shafi'i view allows it; Ibn 'Abd al-Salam of the Malikis held that zihar is like divorce, since both are mere utterances. ²⁸ Securing permitted acts, such as reviving dead land, drawing water, hunting, gathering grass or digging a mine: the Malikis, the sounder Shafi'i view and the Hanbalis allow it, since the ownership comes from a cause that does not bind the person; the Hanafis, some Shafi'is and some Hanbalis forbid it, since the cause of ownership, taking hold, has occurred for the agent and an intention cannot turn it aside. ²⁸ Acknowledgement of rights: the Hanafis, Malikis, Hanbalis and a non-sounder Shafi'i view allow it, since it establishes a right in the obligation by words, as sale does; the sounder Shafi'i view and al-Tahawi forbid it, since it is a report about a right, like testimony. ²⁹

Litigation: the Malikis, Shafi'is, Hanbalis and the two companions of Abu Hanifa allow agency in litigation over debts, specific property and all rights, whether the principal is present or absent, sick or well, and whether the opponent consents or not; the Malikis exclude an agent who is hostile to the opponent. ²⁹ They cite the consensus of the Companions, as 'Ali appointed 'Aqil before Abu Bakr and said 'what is decided for him is mine, and what is decided against him is mine'; and the need for it. ²⁹ Abu Hanifa holds that litigation by agency is valid only with the opponent's consent, unless the principal is sick or absent three days' journey or more, since the principal's presence at the court is a right of his opponent. His reason is that a claim is a report that may be true or false, so its answer is required only by necessity; that necessity arises when the principal is sick or travelling. ³⁰ Al-Jassas reports that the apparent view draws no distinction between a man and a woman, or a virgin and a married woman; later Hanafis approve the agency of a secluded woman who does not appear in public; Ibn Abi Layla held it valid only for a virgin. ³⁰

Proof and execution of retaliation (qisas). The Malikis, Shafi'is, Hanbalis, Abu Hanifa and Muhammad al-Shaybani allow agency in proving qisas, whether the principal is present or absent, since qisas is a human right; Abu Yusuf does not allow it, and the evidence is accepted only from the principal himself, because of the doubt that must be guarded against in retaliation and the hudud. ^{30 31} On the execution of qisas: the Malikis, Shafi'is and the school view of the Hanbalis allow it whether the principal is present or absent. The Hanafis, some Shafi'is and some Hanbalis allow it only when the principal is present, since he may pardon in his absence. ³¹

Proof and execution of the hudud. The Shafi'is and Hanbalis distinguish the two. The school view of the Hanbalis allows agency in proving adultery, from the story of Unays; Abu al-Khattab among them says it is invalid. The Shafi'is do not allow agency in proving the hudud of God except the hadd of slander, since the right is God's, and it is commanded to avert it. ³¹ On execution, the Malikis, Shafi'is and Hanbalis allow agency, citing the Prophet's order to stone Ma'iz and 'Uthman's appointment of 'Ali to carry out the flogging for drinking on al-Walid ibn 'Uqba. ³² The Hanafis say there are two kinds of rights of God: proof, where agency is not allowed for the hudud that need no litigation, such as adultery and drinking, and is allowed for those that need it, such as theft and slander, according to Abu Hanifa and Muhammad, but Abu Yusuf forbids it; and execution of slander and theft is valid when the injured party is present, while if he is absent the Hanafi shaykhs differ. ^{32 33}

The rules of agency. They bind the agent to carry it out within the limits the principal permitted or that law or custom imposes, to inform the principal of necessary information and render an account, and to return what belongs to the principal that is in his hand. ³³ A special agency may be issued unrestricted or restricted. ³³ Among its forms is agency in sale. For Abu Hanifa, the agent in an unrestricted sale is not bound by any restriction unless he is suspected; he may sell for little or much, for cash or on credit, and for goods, since the unrestricted word keeps its unrestricted sense, and a sale at a gross undervaluation in order to buy something more profitable is also customary. ³³

The unrestricted agency in sale. The jurists differ on whether it is restricted, on two views. The first, Abu Hanifa's, is that an agent in an unrestricted sale is not bound by any restriction unless he is suspected; he may sell for little or much, for cash or on credit, and for goods, since the unrestricted word keeps its unrestricted sense, and a sale at a gross undervaluation in order to buy something more profitable is customary. ³⁴ The second, the majority (Malikis, Shafi'is and Hanbalis), is that the unrestricted agent is restricted by several limits. He may sell only for the currency of the town, since an unrestricted currency means the local currency. He may sell only at the market price in goods that people do not sell at a notable undervaluation; if he sells below it, the Malikis give the principal a choice, even for a small loss, which they set at half a tenth or less; the Hanbalis hold the sale valid and make the agent liable for the shortfall. ^{34 35} He may not sell in goods instead of money, according to the Malikis, Hanbalis and the two companions; he may not sell on credit, according to the Malikis, Shafi'is and Hanbalis, though a Hanbali deduction allows it; and he may not sell for a benefit, according to the Hanbalis. ³⁵

The agent selling to himself. The majority (Hanafis, Shafi'is, the school view of the Hanbalis and the settled Maliki view) forbid it, since custom in sale is that a man sells to another, and there is a suspicion of bias. The Malikis and Hanbalis allow it if the principal permits, and the Malikis exclude cases where the bids have run high or where the sale is in the principal's presence. ³⁵³⁶ A narration of Ahmad allows the agent to buy if he outbids in a public auction and someone else conducts the auction; al-Qadi said the second condition may be obligatory and may be recommended. ³⁶ A Maliki view allows it if he does not favour himself. ³⁶

The agent selling to one whose testimony cannot be accepted for him. For the Hanafis, a sale to such a person above the value is valid; below the value by gross undervaluation it is invalid by agreement; at the value there are two narrations of Abu Hanifa. The two companions allow a sale to them at the value, except to his own slave or the slave who has bought his freedom by instalments. ³⁶ The Malikis hold, on the settled view, that the agent may not sell to his ward, whether a minor, a spendthrift or an unauthorised slave. ³⁷ The Shafi'is forbid a sale to his young son even if permitted, and the sounder view allows sale to his ascendants and his non-ward descendants. ³⁷ The Hanbalis in the school view forbid a sale to his son, his father or his mukatab (a slave contracted to buy his freedom by instalments); the other view allows it; the difference arises where the principal did not permit it. ³⁷

Restricted agency in sale. The agent must keep to the restrictions the principal set, by agreement. The Hanafis say that if he goes against a restriction the sale does not bind the principal unless he ratifies it, unless the difference is for the better, which is agreement in meaning. If he is told 'sell my garment for a thousand dirhams' and sells for less, or for something other than dirhams, the sale is not binding, even if the goods are worth more; if he sells for more, it binds. If he is told to sell on credit and sells for cash, the sale binds; if he is told to sell for cash and sells on credit, it is suspended. ³⁸ The Malikis hold that exceeding the price in a sale, or paying less in a purchase, does not give the principal an option, since it is desired; only a difference which affects a valid purpose does. ³⁸ The Shafi'is and Hanbalis say the agent may act only in what the principal's permission requires by word or custom. If one of two acts harms the principal he may not do it, citing the saying that there should be no harm nor reciprocal harm; if one benefits the principal, he must do it, since that is the sincere counsel. ³⁸³⁹ A permission limited to a time does not extend before or after it; one limited to a place with an interest in it, such as a market known for its currency or price, is confined to that place, and where the place is equal in interest, the permission extends to it. Where the buyer is named, the agent may not sell to anyone else, unless he knows the principal has no interest in that particular buyer. ^{39 40}

Breach of the price terms. As to the description of the price: if the principal says 'sell on credit' and the agent sells for cash, the majority hold that the sale binds the principal, since he gets his object and the agent has given him more; a Hanbali view makes the sale void where the principal has a definite interest in the deferral, and the Shafi'is forbid it where the principal has an interest. ⁴⁰⁴¹ If he is told to sell on credit for a fixed price and sells for cash at less, the Hanafis, Shafi'is and Hanbalis do not allow the sale, and the Malikis make it suspended on the principal's approval. ⁴¹ If he is told to sell for cash and sells on credit, the Hanafis, Shafi'is and Hanbalis do not allow it, since immediate payment may be the principal's interest; the Malikis make it suspended on approval. ⁴¹

If the principal said to sell for a thousand now and the agent sold for a thousand on credit, the sale is not binding but suspended on the principal's approval; this is al-Kasani's view. ⁴²

Breach of the currency. If he is told to sell for dinars and sells for dirhams or for goods, the Hanafis, the Shafi'is and al-Qadi among the Hanbalis do not allow the sale, even if it is worth more, since permission in one kind is not permission in another. The sounder Hanbali view is that if he is told to sell for a dirham and sells for a dinar, it is valid, since that is customary: whoever accepts a dirham accepts its equivalent in dinars. ⁴² Al-Kasani holds the sale suspended, with the principal choosing between approval and cancellation. For the Malikis, where the two currencies are the currency of the town and of equal value, there are two views on whether the principal chooses or approves; otherwise he chooses on one view. ^{42 43} If he is told to sell for money and sells for cloth or other goods, the Hanbalis and Malikis hold it invalid, since goods are not a kind of price. ⁴³

Breach of the amount. If he sells for more than the price named, in the same currency, the majority hold the sale valid, since the breach is for the better; the Shafi'is add that it is refused if the principal has expressly forbidden the excess, and one Shafi'i view forbids it entirely, since the principal may have an interest in keeping his oath. ⁴³ If he sells for less than the price named, the Malikis make it suspended on the principal's approval: the principal may take back the goods if they remain, or their value if they are lost. The Shafi'is and one Hanbali narration void it, since the principal did not agree to part with his property on that terms. The settled Hanbali view validates the sale and makes the agent liable for the shortfall, and there are two Hanbali views on how the shortfall is measured. ^{43 44}

Breach of the place. If he names a place and the agent sells elsewhere, the Shafi'is, Hanbalis and Ibn Shas among the Malikis require keeping to it where the place carries a particular interest, such as a market known for good currency or high prices. Some Hanbalis and a Shafi'i view allow sale elsewhere where the two places are equal in interest. The Hanafis require keeping to the place, and the agent is liable if he breaks the rule; the principal is not bound by the sale. The Malikis make the sale suspended on approval, and the sounder Shafi'i view forbids it. ⁴⁴

Breach of the time. If a time is fixed and the agent sells at another time, the Hanafis, Shafi'is and Hanbalis forbid the sale and it does not bind the principal, since he may want the sale at the time of his need and not before or after; the Malikis let the principal choose between approving and rejecting it. ^{44 45}

Breach of the named buyer. If the principal says 'sell only to him' and the agent sells to another, the majority (Hanafis, Shafi'is, Hanbalis) forbid it, whatever the price, since the principal may have an interest in that buyer and not another. The Shafi'is and Hanbalis allow it if the agent knows from a clear sign or from words that the principal has no interest in that buyer in particular. The Malikis let the principal choose. ⁴⁵

Splitting the sale. If the agent sells part of the goods and leaves the rest, or sells part and then the rest later, the rule depends on whether splitting harms the principal. If it does not harm him, as with two houses or two animals, the sale is valid for the Hanafis, Shafi'is and Hanbalis, and the Hanbalis add that it is valid unless the principal forbade splitting. The Malikis state a general rule that whenever the agent departs from his principal's terms or from custom, the principal chooses between approving the sale and rejecting it, if the goods remain, and between approving and holding the agent liable if they are lost. ^{45 46} If splitting harms him, the jurists give three views: the Shafi'is and Hanbalis void the sale; the Malikis, Abu Yusuf and Muhammad make it suspended, and it is completed if the agent sells the rest; Abu Hanifa lets the sale take effect against the principal, since the agent stands in his place and the principal owns part of the goods as he owns the whole. ⁴⁶

Breach of the kind of object. If the agent sells a different thing in place of the named one, the sounder Shafi'i and Hanbali view voids the sale, because he has broken the terms of the permission; the Malikis, and a Hanbali narration, let the principal choose. ⁴⁶

Agency in purchase. It may be issued unrestricted, as in 'buy for me whatever you like'. The Hanafis, the Malikis and a narration of Ahmad allow it, since the principal has delegated his judgement; the Hanbalis in the school view and the Shafi'is forbid it, since the agent may buy what he cannot pay for. ⁴⁷ The agent buying for his principal from his own property or from those whose testimony cannot be accepted for him: the Hanafis forbid buying from himself even with permission, since rights in sale return to the agent and that would make one person both payer and payee; they forbid buying from his minor son even with permission. Abu Hanifa forbids buying from his father, grandfather, grown son or wife; Abu Yusuf and Muhammad allow it at the value or less, or at a small excess. If the agency is general, the Hanafis agree that buying is allowed, since the cause of the bar is suspicion, which general words remove. ^{47 48} The Malikis in the settled view and the Hanbalis in the school view forbid buying from his own property, and allow it if the principal permits; the Malikis allow buying from his relatives if there is no suspicion. ⁴⁸⁴⁹ The Shafi'is forbid buying from his own property or from his minor son in every case, and in the sounder view allow buying from his adult, independent ascendants and descendants. ⁴⁹

Restricted agency in purchase. It is valid, the Hanafis (on istihsan), the Malikis and the Hanbali school view agreeing, even if the kind of goods is not named: 'buy me a garment' is valid, by analogy with the partnership of profit. The Hanafis cite the Prophet's giving a dinar to Hakim ibn Hizam to buy a sacrifice, which shows that a small uncertainty does not stop agency, since agency rests on leniency and not on the strict bargaining of sale. ⁴⁹

Restricted purchase and its breaches. If the principal ordered a purchase on deferred terms and the agent bought for cash, the majority (Hanafis, Malikis, one Shafi'i view and the school view of the Hanbalis) allow the purchase and make it bind the principal if the agent has not raised the price, since the breach is in form only and agrees in meaning. The Shafi'is in the settled view do not allow it, since the principal meant that he should have no debt; a Hanbali view forbids it where the principal is harmed. ⁵⁰⁵¹ If the agent bought on credit when told to pay cash, the Hanafis bind the agent alone, the Malikis give the principal the choice, the Shafi'is void the purchase if it was with the principal's own money, and the Hanbalis make it suspended on approval. ⁵¹

Breach of the kind of price in purchase. The Shafi'is and one Hanbali view void it. The school view of the Hanbalis allows exchanging dirhams for dinars and the reverse, since one who accepts a dirham accepts a dinar in its place, but not goods in place of the two coins. The Hanafis hold that if he was told to buy with dinars and buys with other goods, the purchase binds the agent only; on the view reported from al-Karkhi, the purchase is not binding on the principal for dirhams instead of dinars either. The Malikis make it suspended on approval, and there are two well-known views on whether dirhams in place of dinars bind the principal. ⁵¹⁵²

Breach of the amount of the price. If the breach is for the principal's advantage, such as buying a beast for less than the named price, the purchase binds the principal, since the breach is in form only. The Shafi'is and Hanbalis except the case where the principal forbade paying less. If the breach is to the principal's disadvantage, the Hanafis bind only the agent; the Malikis bind the principal for a small excess, such as one in twenty, and make a large excess suspended on his approval, binding the agent if he takes it on himself; the Shafi'is and one Hanbali view void it; the school view of the Hanbalis validates it and makes the agent liable for the excess. ⁵²⁵³

Breach of the object purchased. If the agent buys something other than what he was told, the Hanafis make the purchase fall on the agent and not bind the principal. The Malikis let the principal choose; if he rejects it, the purchase falls on the agent, who pays the price from his own money. The Shafi'is void it if he buys with the principal's money; if he buys on his own credit without naming the principal, it falls on the agent even if he intended the principal. The Hanbalis validate the purchase on the agent's credit, with two views on whether it binds the principal, and hold a purchase with the principal's money void on the sound view. ⁵³⁵⁴⁵⁵ The Shafi'is (on a name said in acceptance) hold that the name is ignored and the purchase falls on the agent in the sounder view, while the other view voids the contract.⁵⁴

Breach of the quantity bought. Where the agent buys more of the same thing than the principal ordered, for the same price, the Hanafis distinguish: for things valued individually (qiyyamiyyat), the excess does not bind the principal at all, since the price of each is unknown. For things measured by weight, Abu Hanifa, and Muhammad in some narrations, bind the principal only for the quantity ordered; Abu Yusuf and Muhammad bind him for all of it. The Hanbalis, and the Malikis in the view opposite the settled one (that of Asbagh), bind the principal if the agent buys two sheep for one dinar and each is worth a dinar; the Hanbalis add that it is valid if one of them is worth a dinar, while if neither is, it is invalid in the school view. ⁵⁵⁵⁶ The Shafi'is distinguish whether the principal described the sheep or not. ⁵⁶

Splitting the purchase. If the thing ordered may be split by custom without harm to the principal, all agree that the agent may buy part, and the principal is bound by what he bought; the Hanbalis and one Shafi'i view restrict this to the case where the principal did not say 'buy it all in one deal'. ⁵⁶⁵⁷ If custom forbids splitting, or it harms the principal, the Hanafis and Malikis make the purchase suspended on the principal's approval. The majority of Hanafis hold that buying the rest before the principal sues the agent in court binds the principal, since the partial purchase was a means of carrying out the order; Zufar holds that the purchase falls on the agent alone. If the principal sues first and the judge binds the agent, a later purchase of the rest binds the agent alone, by Hanafi agreement. ⁵⁷

If the principal orders the purchase of a described good, the agent may buy only a sound one, since an unqualified sale implies freedom from defects. If he buys a defective one, the Hanafis hold, by agreement, that it does not bind the principal where the description is not met: for example, a blind or a one-handed slave girl bought when he was told to buy a servant, or a stallion bought when he was told to buy a riding mount. ⁵⁸⁵⁹ If the principal named the goods, and the agent bought them defective without knowing it, the purchase binds the principal, who may return it. If the agent knew, it does not bind the principal. ⁵⁹ The Hanafis add that if the agent takes the purchase and finds a defect while it is in his hand, he may return it; but if he has handed it to the principal, he may return it only with the principal's permission, since the agency has ended on delivery. If the agent accepts the defect, it binds him, and the principal may accept it or hold the agent liable. ⁵⁹

The Malikis hold that the agent who buys a defective good knowingly is bound if he bought outright or on the seller's option; if he bought on his own option, it does not bind him and he may return it. The purchase binds the principal only if the defect is slight and customarily tolerated and the purchase is a bargain, as with a cheap beast with a short tail, unlike a noble beast with a cut tail, which does not bind him. ⁵⁹⁶⁰ The Shafi'is, for a purchase on the agent's credit, hold that if the defective good is worth the price paid, and the agent did not know, the purchase falls on the principal; if he knew, the sounder view says it does not fall on the principal. If the defect makes it worth less than the price, the sounder view makes it bind the principal if he did not know, and not if he knew. If he bought with the principal's own money, it binds the principal if the agent did not know, and not if he did. If the principal expressly required soundness, al-Isnawi says it does not bind the principal, since it was not authorised. Either the principal or the agent may return the good, if the agent did not know of the defect, and the agent may not return it where the principal has accepted the defect. ⁶⁰

The Hanbalis: if the agent knew the defect, the purchase on his credit does not bind the principal; if he did not know, the purchase is allowed and both the agent and the principal may return it. The Azjiyy raised whether a purchase with the principal's money with knowledge of the defect falls on the principal; if the goods are equal to the price, the apparent view is that he accepts it, but he may not. If the principal named a defective item and the agent knew before buying, the agent may not buy it; if he buys, the purchase binds him and binds the principal only if the principal accepts; if he did not know, he may return it. ⁶¹⁶²

The agent and an invalid contract. If the principal authorised an invalid contract, the agent may not conclude a sound contract in its place; this is the view of the Shafi'is, Hanbalis, Muhammad and Zufar. Abu Hanifa and Abu Yusuf, by istihsan, allow the sound contract to bind the principal where it is better for him, as with an agent to sell for a thousand who sells for two thousand. ⁶²⁶³

The agent and the stipulation of an option. The Hanafis hold that if the principal ordered a sale with a three-day option for himself and the agent sold without it or with less, the sale is void and he is liable as a usurper. If he was told to stipulate an option of a month and stipulated three days, Abu Hanifa allows it by istihsan, but his two companions do not, since in their view the option of a month is valid with the sale. The Shafi'is hold that a sale on a stated option is void if the agent sells without it. The Hanbalis allow the agent to stipulate an option for himself and for his principal, but not for the other party, since that binds the principal to what he did not agree to. ⁶³⁶⁴

The agent in litigation making an admission. The Malikis, Shafi'is, Hanbalis and Zufar do not allow it, since an admission ends the dispute, which the agent may not do, and the command to contend does not include its opposite. Abu Hanifa and Muhammad allow it before the judge only, excluding the hudud and retaliation; their analogy allows it elsewhere too, and Abu Yusuf allows it in every case. If the principal excluded admission, the admission is void and takes the agent out of the agency. ⁶⁴⁶⁵

Settlement, release, sale, gift and postponement by the litigation agent are not his, by agreement; the Hanafis add that he may not sell, give or postpone the right. ⁶⁵

The agent to collect a debt, when the debtor denies it. The Hanbali school view and one Shafi'i view make him an agent in litigation for proof, since he cannot collect without proving the right, so that this is permission by custom; the agent is so whether the right is a specific thing or a debt, and whether the principal knows the debtor's willingness to pay or his denial or delay. Abu Yusuf, Muhammad, the Malikis, one Hanbali view and one Shafi'i view deny him this power. ⁶⁵⁶⁶

Permission to collect is not permission to litigate, either in words or by custom, since a person one accepts for collecting need not be one accepted for litigation. ⁶⁶ Abu Hanifa distinguishes the agent who collects a specific thing, who is not a party to the principal's dispute over a purchase or the like, from the agent who collects a debt, who is a party, since collecting a debt is an exchange that the litigation agent may conduct. ⁶⁶⁶⁷ On whether an agent for litigation may collect what he was appointed to litigate over: the Shafi'is, the school view of the Hanbalis, Zufar, and the view reported from Abu Yusuf hold he may not, since a principal may accept a man for litigation whom he would not accept for collection. The other Hanafis, and one Hanbali view that Ibn al-Banna relied on, allow it, since whoever is appointed to a matter is appointed to complete it. ⁶⁷

Appointment of another by a litigation agent. If the principal permits it, the agent may appoint another; if he forbids it, he may not. Where the principal says nothing, the Hanafis, Malikis and the school view of the Hanbalis forbid it, because people differ in eloquence and skill in litigation. The Malikis and Hanbalis limit this to matters that befit the agent himself; if the matter is beneath him or beyond his skill, he may appoint another, and the Malikis add that where the litigation is heavy he may appoint a partner to help him, though not another in his stead. ⁶⁷⁶⁸ Ibn Qudama says that where the agency is unrestricted, the agent may appoint another if the work is beneath the agent or beyond his capacity in volume; for work he can do himself, there are two narrations. ⁶⁸⁶⁹ If two parties appoint one agent to litigate against each other, the Hanafis hold the appointment invalid; if the two appoint one agent against a third party, it is valid. ⁶⁹

Payment of a debt by an agent. If the principal says 'pay it and do not take witnesses', the agent is not liable if the creditor denies payment; if the principal orders witnesses and the agent takes none, the agent is liable. ⁶⁹ If he is told to pay without a stated instruction on witnesses and does not take witnesses, the Hanafis, Malikis, Shafi'is and the school view of the Hanbalis hold him liable, since he failed to take care; his word is not accepted against the creditor without proof. ⁶⁹⁷⁰ He is not liable if he paid in the principal's presence, by the Malikis, the school view of the Hanbalis and the sounder Shafi'i view, since the principal's silence is consent; a Shafi'i view holds him liable, since a neglect is not removed by the presence of the principal. ⁷⁰

The agent to collect a debt. Once he collects, the debtor is discharged, the money is the principal's and it is held by the agent as a trust, bound by the rules of a deposit. The agent to collect may not give the debt away, defer it or release it. The Hanafis add that he may not take a pledge for it, but may take a surety; the Malikis and Hanbalis add that he may not compromise over it without the principal's permission. ⁷⁰⁷¹

Delivery of a right to one who claims to be an absent owner's agent. All agree that if the claimant proves the agency by evidence, the judge compels the debtor to pay him. If no evidence is given, the Malikis, Shafi'is and the school view of the Hanbalis hold that the debtor is not bound to pay the claimant unless he confirms the agency; if the debtor pays voluntarily and the creditor denies the agency, the creditor may recover from the payer only, and the payer may recover from the agent if the money is lost through his fault or neglect. ⁷¹⁷² The Hanafis distinguish a debt from a specific thing: if the debtor confirms the claimant's agency he is ordered to pay, and if he denies it, the agent alone is held to what he collected. When the absent owner later confirms the agency, the debtor is discharged; if he denies it, the debtor pays again and may recover from the agent if the money remains in his hand, and if it was lost in his hand the debtor may not recover from the agent unless he has made himself liable. ⁷²⁷³

If the debtor proves that the claimant denied the agency and took the money from him, the proof is accepted, because it establishes that the claimant's right to the sum has ended by his own collection, and so the agent's hold is ended by necessity. If the right is a specific thing, such as a deposit, and the depositary confirms the claimant's agency, he is not ordered to deliver it, since that would be an admission that he surrendered another's property; a debt is different, and he is ordered to pay it, since he admits that the sum is the creditor's own property, debts being discharged by equal sums. ⁷⁴ If the depositary hands the deposit to one who claims agency, it is lost in his hand and the owner denies the agency, the depositary is liable; he may make the owner swear, and he may not recover from the agent unless he made him liable at the time of delivery. ⁷⁴

Several agents. The principal may appoint more than one agent for a particular disposal other than litigation. If he appoints them in one word at one time, none may act alone, unless the principal allows it. The Hanafis hold that where the disposal calls for judgement and counsel, such as sale, marriage and collecting a debt, none may act alone; where it does not, such as delivering a gift, returning a deposit or paying a debt, each may act alone. ⁷⁴⁷⁵ Two agents for a sale, a marriage, a khul' or any contract with a sum in it likewise do not act alone, since the principal relied on the judgement of both. The two agents to collect a debt may not collect one without the other, though their collection is complete once what one collected reaches the other or the principal. ⁷⁵⁷⁶ The Hanafis and Malikis allow either of two agents appointed by separate words to act. ⁷⁶⁷⁷ For two agents in litigation, each may act alone according to the Hanafis (other than Zufar), one Hanbali view and one Shafi'i view, since litigation aims at informing the judge and the two voices confuse it; Zufar, the sounder Shafi'i view and the school view of the Hanbalis forbid it. ⁷⁷

An agent appointing another. With permission, it is allowed by agreement. With prohibition, it is not allowed by agreement. Where the principal says 'do as you like' or 'act on your judgement', the Hanafis, Malikis and Hanbalis allow it, while the Shafi'is forbid it, since such words admit many possibilities. ⁷⁸ Where nothing is said, the majority forbid it, since the principal relied on the agent's judgement and people differ in judgement. Some allow two cases: where the work is beneath the agent or beyond his skill, and where he could do it himself but cannot do all of it because it is great in volume. In the second case, the school view of the Hanbalis and one Shafi'i view allow him to delegate all of it; the Malikis and the school view of the Shafi'is allow only the excess beyond his capacity. Ahmad and Ibn Abi Layla allow it in every case. ⁷⁸⁷⁹⁸⁰

The trust of the one an agent appoints. Whoever the agent appoints must be trustworthy, unless the principal named an untrustworthy person, in which case the agent follows the principal's choice. If the agent's appointee becomes a wrongdoer, the Hanbalis and one Shafi'i view require the agent to remove him, and the sounder Shafi'i view says the agent may not remove him, since he was allowed to appoint but not to remove. ⁸⁰

The kind of agency the appointee holds. If the principal says 'appoint on my behalf' or 'delegate to him', the appointee is the principal's agent, is not dismissed by the first agent's removal, and both lose their office on the principal's death. If the principal says 'appoint on your behalf', the appointee is the first agent's agent, and falls with the first's removal or death; the Shafi'is and Hanbalis allow the principal to remove the sub-agent, since he is a branch of a branch. ⁸⁰⁸¹ If the principal says only 'appoint', the Hanafis, Malikis, the sounder Shafi'i view and the school view of the Hanbalis make the appointee the principal's agent. ⁸¹ Appointment without any permission is not valid according to the majority; Ahmad and Ibn Abi Layla validate it in one case. ⁸¹

The agent is a trustee for what is in his hand of his principal's property. It is like a deposit: he is not liable for a loss unless he transgresses or is negligent, whether he works for a wage or as a volunteer, since his hand is the principal's hand, and agency is a contract of kindness and assistance. ⁸² As a trustee his word is accepted on his own discharge from liability with his oath, since agency rests on leniency and easy dealing. ⁸²⁸³

Stipulating liability or its absence. Ibn Qudama says that what is a trust does not become a liability by stipulation, and what is a liability cannot be removed by stipulation; a narration of Ahmad seems to allow removal of liability by stipulation, but the first view is the apparent school view. ⁸²⁸³

Transgression and negligence. The agent is liable if he overloads a beast, wears a garment without permission, loses the money without knowing how, mixes the principal's money with his own so that it cannot be separated, refuses to return it without excuse, or delays return after the excuse has ended. ⁸³⁸⁴ If the principal paid the debt himself and the agent then paid it too, the agent is not liable if he did not know; if he knew, he is liable, since the principal's payment was a removal of the agent that the agent knew of. Abu Hanifa holds the agent liable for a double payment of zakat whether he knew or not. ⁸⁴ If an agent to sell on credit delivers the goods before collecting the price and the buyer denies payment, he is liable for the goods' value. ⁸⁴⁸⁵ If he delays paying the price he has received without excuse until it is lost, he is liable; with an excuse, he is not. ⁸⁵

If he slaughters a beast by mistake and it dies unlawfully, he is liable, since error and intent are the same for people's property. If he was told to collect a deposit in full but collected part, he is liable, and the liability falls away if he collects the rest before the first part is lost. ⁸⁵

Measure of liability. For a fungible thing he pays its like; for a thing valued individually he pays its value; if a fungible thing has no like, he pays its value. The value is taken on the day of transgression or loss, not any other day. ⁸⁵⁸⁶

Duty to account. The agent must give the principal the information he asks for about what he has done, and Ibn Hajar says that any trusted person who is asked for an account must give it; what counts is the answer and the claim, not the handwriting. ⁸⁶

Return of what is in the agent's hand. He must return to the principal what he holds. If he refuses when asked, without excuse, until it is lost, he is liable; and so if an excuse ends and he delays return until the loss. ⁸⁶

If the principal and the agent agree on a wage, the wage is due by agreement. If they do not agree, the Hanafis distinguish: an agent who does not work for a wage acts as a volunteer, since the agency is originally gratuitous; an agent of a trade whose people work for a wage, such as a broker or a dealer, is due the customary wage. Article 1467 of the Majalla al-Ahkam al-'Adliyya states this. ⁸⁷

When the wage is due. The agent earns it by handing over what was entrusted to him, where handing over is possible, as a cloth he weaves or sews; if he was appointed to sell, buy or perform the pilgrimage, he earns the agreed wage on completing the work, even if the price was not yet collected. But if the principal stipulated that the price be handed over first and the agent did not hand it over, he has no wage, since the condition failed. ⁸⁷⁸⁸

Conditions for the wage. The work must be known, the wage must be known in amount, the wage must not be part of the object of the agency according to some jurists, and the agent must carry out the agency validly. An unknown reward, such as 'a tenth of its price', gives only the customary wage. ⁸⁸ If the agent makes a defective sale, he has no reward, since a general permission to sell permits only a valid sale; if he makes a valid sale and the price is lost in his hand, he has the reward because the work was done. ⁸⁸⁸⁹

Recovery from the principal of what the agent paid. If the principal orders him to pay a debt and he pays from his own money, he recovers it whether or not the principal stipulated recovery. If the agent buys without the principal's money and pays the price from his own money, the Hanafis except Zufar let him hold the goods until he collects the price from the principal, since he is the contracting party to whom the price is due. Zufar says he may not hold them, since the goods are a trust in his hand. The liability for holding them is, for Abu Hanifa and Muhammad, like the liability of a seller; for Abu Yusuf, like a pledge; for Zufar, like usurpation. ⁸⁸⁸⁹⁹⁰

Whose rights a contract made by the agent concerns. Contracts are of two kinds: those that may be made in the agent's name, such as sale and hire, whose rights return to the agent, who delivers the goods, receives the price, and sues for the price as though he were the owner; and those that must be made in the principal's name, such as marriage, khul' and compromise over wilful killing, whose rights return to the principal, so that the husband's agent is not sued for the dower. ⁹⁰⁹¹ The Shafi'is and a narration of Ahmad hold that the rights of every contract return to the agent; the school view of the Hanbalis holds that they return to the principal in every case. ⁹⁰

If the principal orders the agent to collect the price, the agent has the right to demand it, and the buyer is compelled to pay whichever of them he asks. If the principal forbids the agent to collect, the prohibition is valid; but if the buyer pays the price to the principal, he is discharged by istihsan. ⁹¹ If the goods are seized from the buyer, he recovers the price from whichever of them he paid, the agent or the principal; and a defect is pursued against the agent if he is the one who received the goods. ⁹¹

Contracts that must be made in the principal's name, such as marriage, khul', manumission for a payment, writing of manumission and compromise over wilful killing, have their rights for and against the principal; the agent is a messenger and a conveyor. So the husband's agent is not sued for the dower, and the wife's agent may not receive it. ⁹¹⁹² The Malikis hold that the agent in a sale sues for and collects the price, and the agent in a purchase receives and delivers the goods; he returns a defect if he did not know it, and is bound for the price unless he expressly disclaims it. ⁹²

How the effect of the contract reaches the principal. The majority (the sounder Hanafi and Shafi'i views, the Malikis and the Hanbalis) hold that the effect passes directly to the principal, since the contract was made for him. Al-Karkhi holds that it first falls on the agent and then passes to the principal. Abu Zayd holds that the agent is a deputy for the ruling and a principal for the rights. ⁹²

Disputes between agent and principal. On the existence of the agency, the principal's word is accepted, since the original state is that there is no agency. ⁹²⁹³ On its terms (a sale for a price or on credit, a particular object), the principal's word is accepted by the Hanafis, Malikis, Shafi'is and in one Hanbali view; the Malikis add two cases where the agent's oath prevails; the school view of the Hanbalis accepts the agent's word, since he is trustworthy. ⁹³ On the loss of what the agent holds without negligence, the agent's word with oath is accepted by agreement, since he is a trustee and cannot easily prove the loss. The Malikis limit this to an agent who is not suspected; the Hanbalis to a hidden cause, such as theft; if the cause is evident, such as fire or plunder, the Hanbali judge (al-Qadi) requires proof of the event first. ⁹³⁹⁴ On a claim of transgression or negligence in keeping, the agent's word with oath is accepted, since he denies what is alleged against him. ⁹⁴

Disputes over the sale and the collection of the price. The Hanafis work through cases, depending on whether the object was delivered to the agent or not. If the principal confirms the sale and the collection but not the loss or delivery, the agent's word with oath is accepted on the loss. If the principal denies the sale and the collection, the agent is believed about the sale but not about the collection as against the principal; the buyer may pay again to the principal and take the goods, or rescind; if the principal confirms the sale and the agent says the buyer paid the principal, the buyer is discharged on the agent's acknowledgement, but the agent is liable if he then cannot prove it. ⁹⁵⁹⁶⁹⁷ The summary is compressed here. The Malikis hold that if the agent says 'I acted as you permitted', his word is accepted, since he is trustworthy. ⁹⁷ The Shafi'is hold that if the dispute arises after the agent's removal, his word is not accepted without proof; if before, there are two views, the more accepted of which gives the principal's word; the other gives the agent's word where he can act alone (as in divorce and manumission) with oath. ⁹⁷ The Hanbalis in the school view accept the agent's word that he sold and collected and the price was lost. ⁹⁸

On the claim to have returned what the agent holds, the majority accept the agent's word with oath, whether the agency is paid or not, according to the Hanafis and Malikis; the Shafi'is and Hanbalis require proof when he is paid, and accept his oath when he is not. ⁹⁸

The end of agency. The first way is removal. Agency is a non-binding contract, so either party may end it by dismissal. ⁹⁸

The end of agency. The first cause is removal. The principal may dismiss his agent and forbid him the act, and the agent may dismiss himself; the jurists agree on this in general. ⁹⁹

Conditions for a valid removal by the principal. The first is that the agent knows of the removal. The Hanafis, a view of the Malikis, a Shafi'i view and a Hanbali narration require it, since removal dissolves the contract and cannot bind without knowledge. The majority of the Malikis, the sounder Shafi'i view and the school view of the Hanbalis do not. For the Hanafis, knowledge comes by being present at the removal, by the principal's letter, by a messenger (whether trustworthy or not, adult or minor), or by the report of two trustworthy men or one trustworthy man, and a report from an untrustworthy man counts if the agent believes it. Abu Hanifa holds that if the agent denies the report, he is not removed even if it proves true, since reporting a removal resembles testimony; Abu Yusuf and Muhammad disagree. ⁹⁹¹⁰⁰ The second is that no right of a third party is attached to the agency. The Hanafis hold that removal without the right-holder's consent is not valid, as with a pledge given to a creditor with the agent appointed to sell it, or with a defendant's agent in a suit appointed at the claimant's request. The Shafi'is allow removal if the agency was requested by the opposing party; the Malikis forbid removal once the agent has sat with the opponent three times. ¹⁰⁰¹⁰¹ The third is that the agency is not a hire, since a hired agency binds both parties. The fourth is that removal must not cause harm; the Shafi'i Sharwani says that removal is forbidden if it would let a wrongdoer seize the property of a ward. ¹⁰¹

The agent's removal of himself does not require the principal's knowledge, by the majority, except that the Hanafis require it where the agency is for litigation or the purchase of a named thing. ¹⁰¹¹⁰²

Death. The agency ends on the death of the principal or of the agent, by agreement, since death ends capacity and the property passed to the heirs. The Hanafis, Shafi'is and the school view of the Hanbalis do not require the agent's knowledge of the death. The Malikis hold that if the person dealing with the agent was in the town of death and knew of the agency, the agent is not removed until he knows of the death; otherwise the agent is removed only on knowledge of the death. ¹⁰²

Insanity. The Hanafis end the agency by permanent insanity, taking a month according to Abu Yusuf and a year according to Muhammad; once it is permanent, the agency does not return on recovery. The Shafi'is and the school view of the Hanbalis end it by insanity; the Malikis do not, unless the principal's insanity is long, in which case the judge considers it; a Hanbali narration says it does not end. ¹⁰³

Fainting. Most jurists do not end the agency by it; the sounder Shafi'i view does, by analogy with insanity. ¹⁰⁴

Interdiction. The Hanafis hold that interdiction of the principal or the agent ends the agency, but specify that interdiction of the principal ends it only where the agency concerns contracts and litigation, not payment of debts or collection of a deposit. The Hanbalis end it by interdiction for prodigality, and by the principal's insolvency in what he is restrained from. The Shafi'is end it by interdiction for prodigality or insolvency in any disposal that does not take effect. The Malikis end it by the principal's narrow insolvency, a judicial order to take the debtor's goods for his creditors, not by general insolvency. ¹⁰⁴¹⁰⁵

Apostasy. The Hanafis hold that if the apostate is ruled to have joined the enemy's land, the agency ends and does not return on his return to Islam in the school view. His acts before joining are suspended in Abu Hanifa's view and binding in the view of Abu Yusuf and Muhammad. The Malikis hold that the agent is removed by his principal's apostasy after the period of asking to repent. The Shafi'is base the matter on whether the apostate's property passes out of his ownership, with several views, the most apparent being that it is suspended. The Hanbalis hold that the agency is not ended by the agent's apostasy in the school view, and is ended by the principal's apostasy. ¹⁰⁵¹⁰⁶

Immorality (fisq). The Hanbalis hold that agency is not ended by the agent's immorality, except in matters that immorality contradicts, such as the offer in a marriage, where an agent is removed by his own or his principal's immorality. An agent for matters requiring trust, such as the agent of a guardian of an orphan or the administrator of an endowment, is removed by his own immorality or his principal's. The Shafi'is end it by the principal's immorality in matters that require integrity. ¹⁰⁷

Drunkenness. The Shafi'is hold that if either party becomes drunk without fault the agent is removed; if by fault, the Shafi'is say it may or may not end the agency. The Hanbalis hold it does not end the agency except in matters it contradicts, such as the marriage offer. The Hanafis hold that it never ends the agency: an agent appointed to divorce who divorces while drunk has not divorced; an agent who sells while drunk does not bind the principal. ¹⁰⁷¹⁰⁸

The object leaving the principal's ownership. If the principal does the act himself, as by selling the goods before the agent does, or if the goods are claimed by another, or if he marries the woman himself, the agency ends. The Malikis hold that if the principal sold to one buyer and the agent sold to another, the first sale binds, and the second is an unauthorised sale, unless the second buyer has taken possession, in which case the second stands and the first is undone, unless the second buyer and seller knew of the first. The Hanbalis hold that the agent's admission that he received what he was appointed to collect ends the agency. ¹⁰⁸

If the object returns to the principal. Muhammad holds that the agency returns, since what comes back by rescission is the first ownership with its rights; the Shafi'is and Abu Yusuf hold that it does not, since the principal's own act implies the agent's removal. Ibn 'Abidin says it returns if the ownership returns by rescission, not otherwise. ¹⁰⁸¹⁰⁹

The agent's transgression in what he was appointed to do. The sounder Shafi'i view and the school view of the Hanbalis hold that agency is not ended by transgression, since the act was done by permission: the trust is lost by transgression, but the act stands, as with a pledge. The opposite Shafi'i view and one Hanbali view end it, since agency is a trust contract, like a deposit. Al-Mardawi says that if the agent destroys the thing he was appointed for, the agency ends, and if it remains, it does not. ¹⁰⁹

Denial. The Hanbalis and a view of the Hanafis hold that the agency is not ended by the agent's or principal's denial, since denial does not show a withdrawal of earlier permission; the Hanafi fatwa and one Hanbali view hold that it is ended. The Shafi'is hold that denial for forgetfulness or to hide something is not removal; if either denies deliberately with no reason, it removes. ¹¹⁰

Loss of the object. The agency ends when the object is lost, and when the woman whose divorce was entrusted dies. The Hanafis hold that the agency of two partners ends when they part, even if the agent does not know. ¹¹⁰

Completion of the act. The Hanafis hold that the agent is removed when the matter entrusted is completed, as when he collects a debt or contracts a marriage. ¹¹⁰

Implied withdrawal. The Hanbalis hold that agency ends by implied withdrawal of the principal, as by intercourse with a wife whose divorce he entrusted, or by implied withdrawal of the agent, as by accepting the agency to free a slave when he had been appointed to buy him. ¹¹¹