14 – The Book of Agency (wakāla)
Every contract a person may conclude on his own behalf may likewise be concluded through an agent. One may appoint an agent to litigate concerning all rights and to establish them, and to collect what is due, except in matters of ḥudūd (prescribed punishments) and qiṣāṣ (retaliatory punishment), for an agency to enforce either of them is invalid when the principal is absent from the sitting.
Abū Ḥanīfa held that agency for litigation is not permissible without the opponent’s consent, unless the principal is ill or is at least three days’ journey away.
Abū Yūsuf and Muḥammad maintained that agency is permissible even without the opponent’s consent.
A condition for valid agency is that the principal must possess legal capacity to transact and be subject to the rulings of the law, and the agent must comprehend the contract and intend it.
If a free, legally-competent person, or a slave who has been authorised to trade, appoints another of the same status, the agency is valid. Should they appoint a minor under interdiction who nonetheless understands buying and selling, or an interdicted slave, the agency is likewise valid, yet the resulting rights attach to the principals, not to those agents.
The contracts concluded by agents fall into two categories:
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Contracts the agent attributes to himself—such as sale or lease—whose rights and obligations attach to the agent rather than to the principal: he delivers the sold article, receives the price, is pursued for the price when he is the buyer, receives the purchased item, and sues over any defect.
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Contracts he attributes to his principal—such as marriage, khulʿ (divorce by payment), or a settlement in a case of intentional homicide—whose rights and obligations attach to the principal rather than to the agent: the husband’s agent is not liable for the dowry, nor is the woman’s agent obliged to hand her over. If the principal claims the price from the purchaser, he may withhold it; but if he pays it, the payment is valid and the agent may not claim it again.
Whoever appoints another to purchase something must specify either its kind and its description, or its kind and the amount he is willing to pay—unless he grants a general agency and says, “Buy for me whatever you deem appropriate.”
If the agent buys the item and takes possession of it, and subsequently discovers a defect, he has the right