[Book of Agency]

[Chapter One: The Essential Elements of Agency]

This book is divided into three chapters:

1. The first concerns the essential elements of agency, namely: a) the subject-matter over which authority is granted, and b) the principal who appoints the agent.
2. The second deals with the legal rulings that govern agency.
3. The third treats the agent’s departure from the instructions of the principal.

Chapter One: The Essential Elements of Agency

These elements require consideration of both the subject-matter of the mandate and the principal.

Pillar One: The Principal

The jurists agree that an absent person, an invalid, or a woman who has authority over her own affairs may validly appoint an agent. They disagree about a healthy male who is present.

• Mālik holds—and al-Shāfiʿī concurs—that a healthy, present man may appoint an agent.
• Abū Ḥanīfah, however, maintains that neither a healthy, present man nor a woman may do so, unless the woman is a barzah, i.e., one accustomed to managing her affairs in public.

Those who view the basic rule as non-substitutability—that no one’s act may stand in place of another’s except where necessity and consensus so require—say that agency is invalid in any matter over which the jurists have differed.

Those who regard the basic rule as permissibility say: agency is valid in all matters except those acts of worship—and what resembles them—about which there is consensus that agency is invalid.

Pillar Two: The Agent

The agent must not be barred by the Law from disposing of the matter for which he is appointed. Hence, according to Mālik and al-Shāfiʿī, a minor, a lunatic, or a woman may not be commissioned to conclude a marriage contract.

In al-Shāfiʿī’s view this prohibition applies whether the woman acts directly or through delegation—that is, even if she appoints the guardian who normally contracts the marriage—whereas Mālik permits her to appoint a male intermediary.

Pillar Three: The Subject-Matter of the Agency

The matter must admit of representation, such as sale, assignment (ḥawālah), guarantee (ḍamān), all other contracts and their terminations, partnership, agency itself, currency exchange (ṣarf), reward contracts (juʿālah), share-cropping (musāqāh), divorce, marriage, khulʿ, and settlement. Agency is not valid in purely bodily acts of worship, but it is valid in financial acts such as charity, zakāt, and ḥajj.

According to Mālik, an agent may represent a party in litigation, whether to acknowledge or to deny a claim. Al-Shāfiʿī, in one of his two opinions, disallows agency for acknowledgment, likening it to testimony and oaths. Mālik also allows agency to execute prescribed punishments, whereas al-Shāfiʿī has two opinions on the matter when the principal is present.

Those who hold that agency is permissible with respect to