Wakalah (Agency)

Definition of Wakalah:
The word wakalah literally stands for protection or authorization1. While
the word tawkeel, means authorizing someone to carry out an action.
From juristic point of view, the word wakalah stands for both
aforementioned meanings according to the view of al-Kasani.2 Inferably
and technically, this means that, wakalah refers to a contract whereby a
person is authorised to discharge a certain and well-defined legal action.

Legality of wakalah
The contract of wakalah is one of essential things which people are in
need of in their daily activities. Hence, Shariah allows it. The evidence of
permissibility is derived from the Qur`an, authentic tradition of the
Prophet (s.a.w), and ijma3 of jurists. The following as the concise proofs
on this:


"
"

Zakariya al-Ansary, al-Qadhi Abu Yahya. Asna al-Matalib. Beirut: Dar al-Kutub al-`Ilmiyyah. v 5. pg
23.
2
al-Kasani, Abu bakar Ibn Masud Ibn Ahmad, Badai al-Sana`i. Cairo: Dar al-Hadith, 2005. Vol. Pg.
405.
3
-Ibid. Zakariyah al-Ansaary, Asna al-Matalib fi sharh raqdh al-Talib. v5, pg 23.

Let, then, one of you go with these silver coins to the town, and let him
find out what food is purest there, and bring you thereof [some]
provisions4.
Further still, it has been narrated from sound and authentic source that the
prophet practiced wakalah. imam al-Bukhari, al-thirmidhi, ab Daud and
ibn majah narrated that the messenger of Allah authorized Urwah alBariqi to purchase goat for sacrifice (al-Udhiyah).5 Besides, he delegated
`Amr bin Umayyah in marrying Ummu Habibah while she was in
Habashah.

Basis and Cornerstone of wakalah :

Generally, it could be said that wakalah has 4 cornerstones, Ibn Rushd
and others

mentioned that there are four cornerstones for wakallah

which are needed to be fulfilled during contract of wakalah.

1- Muwakkil: (Principal)
2- Wakil: (Agent)
3- The subject matter:
4- Contract language (offer and acceptance)

Surah Al-Kahf 18:19

Abu Daud, 1952, Mansoori, 2005, pg. 62
6
Ibn Rushd al-Qurtubi, Muhammad bin Ahmad bin Muhamamd bin Ahmad. Bidayat al-mujtahid wa
nihayat al-muqtasid. Beirut: Dar al-Kutub al-`Imiyyah. 2004. pg. 687. See also Ibid: Zakariya, alAnsaary, Asana al-Matalib, v2, pg260.
5

However, Hanafi jurists stipulated only one cornerstone for wakalah7

contract which is contract of language in matters relating to ijaab and
qabuul (offer and acceptance)

Legal Rulings regarding conditions to wakalah:

There are rules which guide abovementioned cornerstones which
are as follow:
i)

Principal/muwakkil:
As for the principal, Jurists have made mentioned that he needs to fulfil
some essential conditions. Of those conditions is that, he must possess the
ability to own the property and competence to deal with that property8. He
must attain full capacity to partake in contract (ahliyyah). As a result,
delegation is not permitted for an insane or minor (sabiyy gayr
mummayyaz). If one of the above mentioned groups involve in delegation
of contract to someone else, such contract will be regarded null and void9.
Hanafii jurists also mentioned that it is lawful for minors al- Sabiyy alMumayyiz (that has reasoning ability) to delegate a person that can assist

al-Kasani, `Ala al-Din Abu Bakar ibn Mas`ud, Bada`i al- sana`i , Cairo: Dar al-Hadith. 2005, v.6,
pg. 405. See also: al-Babirty, Muhammad ibn Muhammad, al-`Inayah sharh al-Hidayah. v11, pg71.
8
al-Shirazi, Abu Ishaq Ibrahim ibn `Ali ibn Yusuf. al-Muhazzab. Beirut: Dar al-Kutub al-I`lmiyyah.
1995. V. 2. P 164. See also: Ibn Muflih., Abu `Abdullah Muhammad ibn Muflih al-Maqdisy. al-Furu.
Beirut: Dar al-Kutub al-`Ilmiyyah. 1997. V.4, pg255.
9
Ibid: al- Shirazi. 164 see also: `Abdullah bin Hijazd bin Ibrahim al-Azhary. Hashiyah al-Sharqawy.
Beirut: Dar al-Kutub al-Ilmiyyah. 1997, v 3. pg226.

them with beneficial things to them10. On the contrary, the Malikis, Shafi`i
and Hanbali jurists are of the opinion that it is not permissible for minors
to delegate people for any transaction11 relating to the contract.
ii)

Agent/wakil
Wakalah, in order to be accepted, the wakiil (agent ) must be sane (
aaqil)12. The agent should have full legal capacity ( al-Ahliyyah alKamilah). Thus, a lunatic or an indiscriminating minor ( sabiyy gayr
mummayyaz) cannot become an agent, but according to Hanafi it is
allowed for al-sabyy mumayyiz to carry out contract of wakalah.13. The
agent should also be aware of his status as an agent. When somebody
acted on behalf of another and later on the former comes to know that he
is an agent of the latter the preceding act does not fall under wakalah
contract14.

iii)

Subject Matter
The subject matter of agency or the act to be performed by the agent
should be known to agent. Thus, it is not permissible to delegate someone
to perform unknown thing15. If the agency is for the purchase of a thing,
the genuineness, kind, quality and other necessary attributes of the
10

Ibid. al-Kasani, v7, pg406.

Ibid. al-Shirazi, al-Muhazzab. v2, pg164.
12
ibn Rushd, bidayat al-Mujtahid, 2004. pg685. See also Ibid: al-Sharqawi. Hashiyah al-Sharqawi. V.3.
pg227.
13
Ibid: al-Kasani. v7, pg.407. See also Muhammad `Alaa al-Din al-Haskafy, al-Durr al-Mukhtaar v5,
pg511.
14
Ibid: al-Kasani. v7, pg.407.
15
Ibid.al-Shirazi. V2.165.
11

commodity to be bought should be mentioned16. In addition, the agency

must be a lawful action, coupled with the fact that, it must be something
disposable through wakalah.17Agency is not permissible for acts by
Shariah or acts of disobedience such as: theft, usurpation of property or
conducting riba-based business.

There are some subject matters which cannot be performed via agency
such as personal devotional matters like prayers, fasting, purification with
exception to pilgrimage, ayman (swearing an oath), zihar (swearing an
oath not to approach ones wife by equating her back with the back of his
mother).18

Types of Wakalah ;
Wakalah can be divided as follows;
(al-Wakalah al-`Ammah) General Wakalah19
This refers to a general delegation of power. For example, if the principal
says: I delegate to you all my affairs. In this case, the principal has
transferred and delegated the power to the agent. The exemption of the
delegated power covers harmful things to the principal like gift (hibah) or
16

Ibid.al-Sharqawi, Hashiyat al-Sharqawi. v3, pg229.

Ibid.ibn Rushd, Bidayat al-mujtahid , 685.
18
Al-Kasani, al-Badai, v6,pg.21.
19
Ibid.ibn Rushd. Bidayat al-mujtahid. 685.
17

divorce. Thereby, the agent has no authority to divorce the principals

wife unless the later specifically mentioned that in the contract.
(al-wakalah al-Khassah) Specific Wakalah20
Particular wakalah is made only for certain known transactions for
example, buying or selling certain known house or a car. The agent is
bound to sell or buy that particular house or car.

(al-Wakalah al-Muqayyadah) Restricted Wakalah

This is wakalah where the agent has to act within definite conditions. For
example, I delegate you to buy a house at such a price, or until such a
time or based on instalments. The agent has to strictly observe these
conditions. If the conditions are not met, the transaction is not binding on
the principal21.

(al-Wakalah al-Mutlaqah) Unrestricted Wakalah22

This is where there is no condition put in place for the transaction. For
example, if the principal says to his agent: I delegate you to buy a land.
Without mentioning specific price or type, in this case, according to the
majority of jurists and two companions of Abu Hanifah,( Abu Yusuf and
Muhammad al-Shaibani) the agent has the authority to buy land within
20

Ibid.ibn Rushd. bidayat al-Mujtahid, 685.

Ibid. ibn Muflih . al-Furu`. v4, pg256.
22
ibn Nujaym, al-Bahr al-Raaiq sharh Kanz al-Daqaiq. Beirut: Dar al-Kutub al-`ilmiyyah, V7, pg.282.
21

the prevailing practices and customs. And if he acts contrary to the

custom, then the transaction depends on the approval of the principal23.
Meaning to say, the agent has to buy that land in such a way that the
principal will not be cheated. However, Abu Hanifah argues that an agent
is not bound by the customs as custom differs from one place to another24.

Binding Wakalah
Wakalah is basically not binding because each of the two parties involved
has the right to revoke the contract. However, the majority of jurists hold
that wakalah will be binding if there is a compensation for the task.25

Is it allowed for wakil to delegate another person?

There are numerous opinions regarding the permissibility of an agent
appointing another person to be his agent as well:
According to Hanafi, it is allowed for general and absolute wakil to
appoint someone else to be his agent,26 Maliki jurists uphold the view that
it is not allowed for wakil to appoint anyone as wakil, except if that
wakalah (delegation) is not suitable for his personality, for instance, if he
is dignitary and what he has delegated for is insignificant or worthless, in
23

-Ibid: Ibn Muflih . al-Furu`. v4, pg256. Ibid. Zakariyah al-Ansaary, asnaa al-Mataalib. v5, pg43.
ibn Nujaym, al-Bahr al-Raiq Sharh Kanz al-Daqaaiq. Beirut: Dar al-Kutub al-Ilmiyyah.1997, vol 7,
p.283. see Ibid. ibn Muflih . al-Furu`. v4, pg256.
25
al-Saawi, Ahmad, bulgat al-Salik li aqrab al-Masalik, v3, pg333.
26
-Ibid.ibn Nujaym, al-Bahr al-Raaiq sharh Kanz al-Daqaiq. v7, pg299.
24

this situation is permissible to delegate someone else. On the contrary,

shafi`i and Hanbaly are of the opinion that it is not allowed for wakil to
delegate another person without consent of principal ( wakkil) as far he is
capable of carrying out what he has been delegated for, though, if he is
not capable of carrying out all what muwakkil appointed him for, in this
case, it is allowed for him to appoint someone else as agent27.

The Cease of Agency (Wakalah)

There are many different ways in which wakalah comes to end:
1- wakalah contract comes to an end by mutual agreement .
2- If the subject matter of the wakalah has conducted and served its
purpose28.
3- Resignation of wakil:29 wakalah can come to end by resignation from
wakil, however, the hanafi jurists stipulated that the agent has to inform
the principal, while shafi` do not do so30.
4- If muwakkil (principal) discharges his wakil (agent): the principal has
authority to remove agent any time he/she likes31. However, according to
Hanafi, two conditions must be fulfilled namely: (1) The principal must
inform and notify his agent. But others like shafi` and Hanbali
27

Ibn Qudamah, `Abdullah ibn Muhammad ibn Ahmad ibn Muhammad ibn Qudamah. Cairo: Dar alHadith. 2004. v6. pg.467-468. Ibid. Zakariyah. al-Ansaary,asna al-Matalib.v 5, pg49.
28
Ibid.Ibn Muflih . al-Furu`. v4, pg257.
29
Ibid.Ibn Qudamah. al-Muqhni , v6, pg475.
30
Ibid. Ibn Nujaym. al-Bahr al-Raiq v7. pg318.
31
Ibid. Ibn Muflih . al-Furu. v4, pg256.

notification of agent is not a condition32.(2) the agency has not to do with

another person`s right33, for instance, if principal appoints someone to
divorce his wife anytime he likes thus the husband (al-muwakil) has no
right to revoke the agency without the consent of the wife.
5- If either wakil or muwakkil has no more legal capacity34 e.g. he/she
becomes insane, or in the inevitability of death. Also, he/she has legal
interdiction (al-hajr).
6- Destruction of the subject matter e.g. by selling or buying or hiring it.

Unauthorised Agency (Tasarruf Fudhuli)

It is referring to an unauthorised act performed by an agent or an act
which is performed by unauthorised agent. It is submitted that that no one
is allowed to deal with the property of another person without his
permission. The Hanafites and Malikites hold that the acts of
unauthorized agent depend on the ratification and approval of the owner
of the property.35 The Shafiites, Hanbalites and Zahirites hold that the
contract is not valid.36

32

Ibid.ibn Qudamah. al-Mugni. v6, pg481.

Ibid.ibn Nujaym. al-Bahr al-Raiq v7, pg320.
34
Abdullah Ibn Mahmoud Ibn Mardud al-Musali.al-Ikhtiyaar li ta`lil al-mukhtar. v2, pg174.
35
Al-Kasani, al-Badai, v5, pg148, Ibn Rushd, Bidayat al-mujtahid, v2, pg.171.
36
Al-sharbini, al-Khatib, Mughni al-muhtaj, v2, pg.15, al-Bahuti, Kashshaf al-Qina, vol2, pg.11, and Ibn
Hazm, al-Muhalla, vol.8, pg.503.
33

Wadiah (Deposits)
Definition of Wadiah
Literally it comes from the word wadaa which means leaving or avoiding
something37.
Legally it refers to leave something to someone to take care of. According
to Hanafi jurists, it means giving the authority to somebody to look after
his property () 38. Whereas, according to Shafie and
Maliki wadiah is an authorization of the owner of the property to others to
look after his property in a specific way:
Maliki`s definition ()
Shafi`s definition: ()
Hanbalis definition: ( ) 39.
In summary, Wadiah can be defined as any belongings left by the owner
or his representative with somebody to take care of them.

Legality of Wadiah
Wadiah (deposit) is among the permissible contracts and dealings in
Islam. Its legality is enshrined in the Quran, hadith and ijma.
37

Muhammad al-Nasafi, Najmu al-Din Abu Hafs Umar ibn Muhammad. Talabat al-talabah fi alIstilahat al-Fiqhiyyah, Beirut: Dar al-Kutub al-`Ilmiyyah, 1997.pg.176.
38
Ibid.ibn Nujaym, al-Bahr al-Ra`iq. Vol, pg 464.
39
See various definitions of wadi`ah Ibid. al-Maraby.Takmilat al-Majmu`. vol.15, pg. 360-363.

10

Allah says:


(
)

but if you trust one another, then let him who is trusted fulfill his trust,
and let him be conscious of God, his Sustainer(2:283).

The messenger of Allah says:

)(
And perform the trust (amanah) to those who give trust.40
Execute trust to those who entrusted you and do not betray those who
betrayed you.41
Majority of jurists have agreed that wadiah is a necessity and requisite for
protecting mankind and as such should be allowed.42 The proprietor of the
thing is known as mudi (depositor). The person entrusted with it is
known as wadi or mustawda (custodian) and the deposited asset is
wadiah.

40

Shawkani, Nail al-Awtar,vol 5, pg 297.al-Asqalani, Subul al-Salam,vol 3, pg 68.

Ibn Quddamah, al-Mughni, v 6, pg 382.
42
al-Sarakhsi, al-Mabsut. v11, pg116. See also: al-Zayla`i, Tabyin al-Haqaiq. v14, pg196.
41

11

In shari`ah it is encouraged for anyone who has trust in himself to take

wadi`ah out of helping others43.

Basic Rules and Conditions of Wadiah:

Hanafi jurists mentioned that cornerstone of wadi`ah is offered from
depositor and acceptance from entrusted person (Ijab and Qabul)44
i) Offer (Ijab) and Acceptance (Qabul): Majority of jurists are of the
view that there must be a valid offer and acceptance made in wadiah
contract45.
ii)

Contracting parties: The depositor and the custodian must be

persons of sound mind46. Hanafi school of thought views that attaining

the age of maturity is not compulsory so far provided consent from
parents to do business is obtained47. On the other hand, majority of
Muslim jurists share the common view that the contracting parties must
be eligible to be a wakil, i.e. they must be persons who are of sound mind,

43

al-Marabi. Al-Qadi Dhiya` al-Din Abu `Umar al-Marabi. Takmilat al-majmu` sharh al-muhazzab.
Beirut: Dar al-Kutub al-`Ilmiyah. 2002. V.15, pg357. al-Mawurdi. Imam Abu al-Hasan `Ali ibn
Muhammad ibn Habib. al-Hawi al-Kabir. Beirut: Dar al-Fikr. 1994. v10, pg385.
44
Badr al-Din al-`aini al-Hanafi, Mahmud ibn Ahmad ibn Musa. al-Bayanah Sharh al-Hidayah. Beirut:
Dar al-Kutub al-`lmiyyah. v10, pg106.
45
Ibid. Zakariyah al-Ansary. asna al-Matalib. v6, pg179.
46
al-Qarafy, Shihab al-Din Ahmad ibn Idris ibn `Abd al-Rahman. al-Zakhirah. Beirut: Dar al-Kutub al`Ilmiyah., 2008.v7 pg304.
47
al-Kasani,. Badai al-Sanai, ed. Muhammad Khayr Ta`mah Halaby. 2000. Beirut: Dar al-Ma`rifah.
v6. Pg326.

12

attained the age of maturity and intelligence.48 Jurists also mentioned that
whosoever is eligible to be wakil, is allowed to be to be trustee and
whosoever is eligible to become a principal is also allowed to be
depositor. 49 Further, the custodian must ensure his capability to safe-keep
the deposit. He must withdraw himself from taking the deposit if he
cannot ensure that he shall return it to the depositor at the stipulated
time.50
iii) Deposited Property: The deposited property must be owned and
deliverable, if it is lost or undeliverable it cannot be the subject matter or
capable of being subjected to physical possession.

Types of Wadiah
Wadiah can be classified into 2 types namely: wadiah yad amanah (trust)
and wadiah yad dhamanah (guarantee)
1-Wadiah Yad Amanah ( Safe Custody based on trust)
Initial state of contract wadi`ah is a trust contract which means wadi` acts
as a trustee and takes care of the funds. The custodian / wadi` has the duty
to protect the property by not mixing or pooling the properties (money)

48

Ibid. al-Qarafi. al-Zakhirah . v7, pg304.Ibid. al-Maraby, Takmilat al-Majmu` v15, pg365. see al-alKasany, Badai` al-Sana`i. v14, pg.98.
49
Ibid. al-Sharqawi. Hashiyat al-Sharqawi. v3, pg208.
50
Ibid. Zakariya al-Ansary. asna al-Matalib. v6, pg178.

13

kept under custody, not using the property and not charging any fees for
safe custody 51.
The custodian must also return the deposited property to the owners at
any time upon the request of the depositor52.
In the above mentioned case, the wadi` is not responsible for any damage
of the property so far he abuse the authority upon the property.
2- Wadiah Yad Dhamanah (Guaranteed Safe Custody)
Yad Dhamanah is known as hand which possesses an item without
consent of the owner or, with his consent but with intention of taking
possession of the item. If the wadi` guarantees the refund of property kept
with him, and also ensured to refund the item upon request in this case we
regard the contract as yad al-Dhaman 53.
Jurists mentioned instances whereby the trustee will be regarded as
Daamin for example, if he take from the trust and return it back later or
do business or transaction with it or he destroy the property deliberately
or he mixed it with another property in which he could not be

51

al-Khurashi, Muhammad ibn `Abdullah ibn `Ali. Hashiyat al-Khurashi. Beirut: Dar a-Kutub al`Ilmiyyah. 1997. v 6, pg 472.
52
Ibid. Zakariya al-Ansari. Asna al-matalib.v 6, pg181.
53
Ibid al-Mawardi. al-Hawi al-kabir. v8, pg357-361

14

differentiated, or he or benefit of it. in these circumstances, the hand of

trustee will be regarded as Yad Dhamanah54.

The contract of wadi`ah undeniably brings benefit to the contracting

parties. However, it must be borne in mind that the person entrusted with
the deposit or properties must keep the deposit safe according to the
custom (uruf) and norms of certain place. Upon being requested for the
return of the deposit, the custodian without fail must be able to return the
deposit.

Tabarru` (Donation)
Tabarru` literarily comes from Tabarra` which means to do something
without compensation. Juristically, there is no specific definition from
jurist in respect of this term, however, the definition might be inferred
from the application of Tabarru` in Islamic jurisprudence, hence, we can
say, the aforementioned term can be defined as giving something out
without compensation55.

54

Ibid al-Marabi. Takmilat al-majmu`.v15, pg. 404. See also Ibid. Zakariya al-Ansari. asna alMatalib.v6, pg.189-198. See also Ibid.al-Kasani. Bada`i al-Sana`i (2000) v6, pg. 333-337.
55
Ibid. Ibn Qudamah.al-Mughni. v7, pg.554.

15

Types of contract of Tabarru

Contract of Tabarru` (gratituous) is the opposite of contract of
Mu`awadhah,(commercial exchange). It is also defined as unilateral
contract. Tabarru` has many forms in Islamic jurisprudence which
includes among others hibah, sadaqah, wasiyyah ,waqf and I`arah 56.

Legality of Contract of Tabarru:

Islam encourages Muslims to favour and help each other, and contract of
tabarru is a form of helping others, there are many verses of the Holy
Qur`an and authentic Sunnah of the Prophet (s.a.w) which encourage
Muslims to benefit and lend hand to others. There has been ijma
(consensus) among the jurists that contract of tabarru is permissible.
wever, tabarru also can be categorized under one of the five legal
rulings: Wajib, Mandub, Mubah, Haram and Makruh. For instance, waqf
for sinful things is regarded Haram while the initial state of it is mubah57.

Pillars of Tabrru`

56

Ibid. Ibn Nujaym, al-Bahr al-ra`iq, v4, pg.619. See also Ibid ibn Qudamah.al-Mughni. v7, pg.554.
al-Ramli, Shams al-Din Muhammad ibn Abi al-`Abbas Ahmad ibn Hamzah ibn Shihab al-Din.
Nihayat al-muhtaj ila sharh al-minhaj. Beirut: Dar al-Kutub al-`ilmiyyah. 1993.v, pg 369.
57

16

According to Malikis, Shafiis and Hanbalis contract of Tabarru has four

cornerstones which are58:
1- Mutabarri` : Donor
2- Mutabarri` lahu: who accepts donation
3- Mutabarri` bihi: item the person wants to donate (donation) which is
subject matter.
4- Offer and acceptance: contract language.
As for Hanafi school of thought, they regard only contract language for
all the contracts of Tabarru`59.

Effect of the contracts of Tabarru`:

If any of the contract of Tabarru` fulfil all the conditions and
requirements of the contract hence the ownership will be transferred from
donor to the donated. However, there are some Tabarru contract in which
scholars are differed in opinion, for instance, Waqf, there are various
opinions regarding the transformation of the ownership. According to
Hanafi, Shafi` and preponderant view of Imam Ahmad, the ownership of
waqf will move from the waqif (giver or donor) to the ownership of
Allah. On the other hand, Maliki and a view from Imam Ahmad are of the

58

Ibn Najjar, Taqi al-Din Muhammad ibn Ahmad al-Hanbali. Muntaha al-iradat. Beirut: Dar al-Risalah.
(1999).v3, pg 435.
59
Ibid. al-Kasani, Bada`i al-sana`i, v10, pg502.

17

opinion that ownership of waqf will still remain under the management of
the waqif (donor).60

Al-wa`d
Al-wa`d is derived from word wa`ada which means to promise. The
majority of jurists hold that fulfilling promises is a good attitude for
Muslims. The basis of that are verses from the Holy Quran and authentic
hadith from the Prophet (s.a.w) and ijma` (consensus of jurists).

Imam al-Bukhar has dedicated a particular chapter on making hibah and

promise and the donor or promisor dies before the execution of the offer.
Hadith Jabir bin Abdullah bin Amru the Prophet said to him, If the
money (jizyah) of Bahrain arrives, I will give you an amount of it. But
that money of Bahrain did not arrive until after the death of the Prophet.
When the awaited money arrived, Abu Bakar announced whoever has
debt from Rasulullah or any promise should come forward and make a
claim. I came to Abu Bakr and informed him about the promise make by
Rasulullah to me and Abu Bakar paid me 1000 dirham.61

60

Ibid al-Ramli, Nihayat al-muhtaj ila Sharh al-minhaj, v5, pg.388.

rd
Al-Bukhari, al-jami al-Sahih, hadith no. 2296, Beirut: Dar al-Kutub al-`Ilmiyyah (2003) 3 edition, pg.
411.
61

18

According to Badr al-Din al-Hanafi al-Ayni, there has been an ijma

(consensus) among the jurists that to other than the Prophet SAW, the gift
will be owned by the heirs of the giver if he dies before executing it. Even
in the right of the Prophet, it is not binding. What was done by Abu Bakr
actually on the piety and voluntary basis (tatawwu) and out of admire of
the Prophets habits in fulfilling his promise. Al-Ayni also narrates an
ijma that the one who makes a promise will not be considered as one of
debtors (who is liable because of his promise). And there is also no
dispute that performing a promise is an act of courtesy and good
manner.62

However, jurists differed on whether a promise is binding or not.

According to the majority of scholars, it is generally understood that
fulfilling the promise is not wajib (obligatory) rather it is mustahab.63 Ibn
Hazm asserts that if someone promises another to give him/her money or
to offer him/her a job, whether he made an oath on it or not, it is not
binding upon him to fulfil that promise.64

62

Badr al-Din al-Hanafi al-Ayni, Umdat al-Qari Sharh Sahih al-Bukhari, Beirut: Dar al-Fikr, vol.

20/135.
63

al-Nawawi. Imam Abu Zakariya Yahya ibn Sharaf. Raudhat al-talibin. Beirut: Dar al-Kutub al`Ilmiyyah. 1992. v4. pg 451. Al-Kasani. Bada`i al-sana`i, v7,pg.84. See also al-Qarafi, al-Furuq. v3, pg
95.
64
Ibn Hazm,Abu Muhammad `Ali ibn Ahmad ibn sa`id ibn Hazm. al-Muhalla, Beirut: Dar al-Afaaq alJadidah.1933. vol.8, pg.28.

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However, some Hanafi said if the promise is associated with a condition,

it will become binding.
)(

Furthermore, it is also affirmed in Article 84 in Majallah al-Ahkam alAdliyyah the aforesaid mention view.
() .65
Promises in the conditional forms are binding

Majority of Malikites also argued that the initial promise is not binding.
However, if the promise is associated with a cause leads the second party
to incur a cost or suffer a loss, it becomes mandatory upon the one who
made the promise to fulfil that promise.66

65

Haydar. `Ali. Durar al-hukkam sharh majallat al-Ahkam. Beirut: Dar al-Kutub al-`Ilmiyyah. 1991
V1,Pg.77
66
al-Qarafi, Shihab al-Din Ahmad ibn Idris. al-Zakhirah, Beirut: Dar Garb. 1994. v6, pg 299.

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