Today, I will explain to readers the acts which cannot be made the subject matter of the agency contract in Shariah or in other words, the acts an agent cannot be asked to perform.
To start with, an agent cannot be appointed to enter into a borrowing contract with the lender for and on behalf of the principal. If the agent borrows money or any non-monetary asset (such as commodities, shares, etc), the agent itself shall be considered as the borrower and the principal debtor in Shariah.
The Shariah wisdom in such a restriction is that the contract of lending and borrowing money (or commodity) creates personal rights and obligations and hence it is necessary that the lender directly deals with the borrower in order to establish its clear right over the repayment of the loan.
Moreover, there may be the hazard that the agent, having borrowed on behalf of the principal, fails to deliver the borrowed amount or commodity in full or in part to the principal, thereby denying it the benefit for undertaking such a borrowing.
Furthermore, in case of a dispute, it will be very difficult for the lender to effectively prosecute the borrower owing to no clear evidence that the borrowed amount was actually delivered to the principal by the agent.
However, the Shariah principles do accommodate a situation where the lender and borrower enter into the contract for the funds (or commodity) to be released at a later date when the borrower would be in need of it. In such a case, the borrower sends its agent to collect the borrowed amount (or commodity) with an authorization letter to the lender. Certainly, in such a situation, the lender’s right to reclaim the money (or commodity) shall stand valid based on the prior contract directly signed by the lender with the borrower.
The same is true for the lender, that is, it cannot appoint an agent to lend the money (or commodity) to a borrower for the agent shall be considered the lender instead of the principal. Again, if the lender and borrower have already established a contractual relationship, it will be in order for the lender to appoint an agent to deliver the money (or commodity) to the borrower.
Also, in matters of worship, it is not permissible to appoint an agent to offer five times Salat (obligatory prayer) in the mosque for and on behalf of the principal while the principal keeps himself busy at work or nicely relaxes at home.
Nor do the Shariah principles allow for an agent to observe fast in Ramadan for and on behalf of the principal whereas the principal enjoys biryani and pulao (pilaf). Such prohibition aims to inculcate attributes of piety in a person which cannot be achieved through a third party since Islam necessitates a direct relationship of a servant with his or her Lord — the Almighty God.
Nevertheless, with regards to Hajj, the fifth pillar of Islam which is a once in a lifetime obligation on people who can afford it, appointing a proxy to perform Hajj is permissible for and on behalf of a person who may not be able to undertake the inconvenience related to the travel due to ill health or old age-related weaknesses or if someone has passed away without performing Hajj. The delegation in such cases could be a close relative or a stranger of the person (dead or alive).
Another area where the agency does not work is the taking of an oath by an agent for and on behalf of the principal in disputes such as arbitration or court cases. Here too, the purpose of swearing an oath is to establish the truthfulness of the person taking the oath which shall be defeated if he or she appoints an agent to do so on his behalf.
Certainly, the agent will not be in a position to read the mind of the principal as to the scale of the principal’s honesty and righteousness in the disputed matter. Swearing an oath is an extremely revered matter as the person is placing himself or herself directly at the mercy of Almighty God and the punishment for an oath which is deceitful is severe in both this world and the hereafter.
Last but not least, an agency cannot be accomplished in the matters of Zakat money which includes its calculation and separating the amount from the existing wealth which must be personally carried out by a Muslim.
However, Shariah provides permissibility to appoint an agent to distribute the Zakat money among the poor and downtrodden in society on behalf of the principal. In such a case, the agency could either be written or verbal and its effectiveness shall be measured by the agent getting the Zakat amount transferred into its possession by the principal.
I have seen Islamic banks handing over large amounts of cheques, representing the Zakat funds corresponding to a fiscal period, to reputable charitable organizations for onward distribution among deserving people or utilize it for any of the eight purposes mentioned in the Holy Quran. In other words, the Islamic banks appoint the charitable organizations as their agent in discharging their obligation to pay annual Zakat.
Today’s write-up should be able to provide clarity to readers on the boundaries of deploying an agent.
The views and opinions expressed in this article are those of the author and do not necessarily reflect the opinions of the Dubai Islamic Economy Development Centre, nor the official policy or position of the government of the UAE or any of its entities. The purpose of this article is not to hurt any religious sentiments either consciously or even unwittingly.
Sohail Zubairi is the senior advisor with the Dubai Islamic Economy Development Centre. He can be contacted at [email protected].
Next week: Discussion on the subject of Wakalah shall continue.