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Monday, July 7, 2014

CHAPTER ONE - AL-WAKALAH -

CHAPTER ONE
1.1    DEFINITION OF WAKALAH
Al –Wakalah means agency, or delegating duty onto another party for specific purposes and under certain conditions. Under a concept of wakalah, the bank becomes your agent. You are then required to deposit the full amount of the price of goods to be purchased or imported. Literally wakalah means protection or remedying on behalf of others. Legally wakalah refers to a contract where a person authorizes another to do a certain well-deemed legal action on his behalf. It is a contract of agency which means doing any work or providing any service on behalf of any either. An agent is someone who establishes contractual and commercial relations between a principal and a third party,usually against a fixed fee. An action performed by an agent on behalf of the principal will be deemed as action by the principal. Agency is necessilated by the fact that an agency has to perform certain tasks which the principal has neither the time,knowledge nor the expertise to perform himself. The need for agency arises where a person has no ability or expertise to perform a certain action due, for example, to distance or size.[1]

1.2    THE OUTLOOK OF SCHOLARS
Wakalah have quite a few different meanings according to some scholars. Here is the view of the scholars:
a)      According to Ash Hashbi Shiddieqy, wakalah is power delivery contract, the contract was the one point on another person as his successor in the act (tasharruf).
b)      According to Sayyid Sabiq, wakalah is handing over power by one person to another in matters that may be delegated.
c)      Malikiyah scholars, wakalah is an action delegate himself to others to commit acts of right action is not associated with the authorization after death, for if linked to action after death will mean as will.
d)     According Syafi'iah Scholars say that wakalah is an expression that contains a delegation of something by one person to another that the other person can be empowered to do what the name of the endorser.[2]

1.3 EVIDENCE THAT ALLOW WAKALAH IN ISLAM
There are many of evidence that allow wakalah in islam. There are based on  al-quran,as-suunnah and ijmak.
a)      Al-quran:
۞ وَإِنْ كُنْتُمْ عَلَىٰ سَفَرٍ وَلَمْ تَجِدُوا كَاتِبًا فَرِهَانٌ مَقْبُوضَةٌ ۖ فَإِنْ أَمِن بَعْضُكُمْ بَعْضًا فَلْيُؤَدِّ الَّذِي اؤْتُمِنَ أَمَانَتَهُ وَلْيَتَّقِ اللَّهَ رَبَّهُ ۗ وَلَا تَكْتُمُوا الشَّهَادَةَ ۚ وَمَنْ يَكْتُمْهَا فَإِنَّهُ آثِمٌ قَلْبُهُ ۗ وَاللَّهُ بِمَا تَعْمَلُونَ عَلِيمٌ [3]  
This  verse explain about the transactions, which do not in cash, which is done in the course and no clerks who will write it. In the case  transactions without cash and no clerks who will write it, then let the liability or warranty held by parties who do the transactions. Unless each of trust and surrender / surrender to God, then the transactions, it can be done without liability items. In the verse Allah warns that humans do not refuse to be clerks or refuse to give witness when requested. Then in this verse Allah reiterates that do not concealwitness. That assertion indicates that the writings and witness that help people in keep or protect their own property, and not delay it, so it will  not let troubled to the owners of property because of debt that not paid on time. The other evidence allow wakalah in islam based on al-quran is from surah Yusuf:55
قَالَ اجْعَلْنِي عَلَىٰ خَزَائِنِ الْأَرْضِ ۖ إِنِّي حَفِيظٌ عَلِيمٌ [4]

b)      As-sunnah:
َوَعَنْ عُرْوَةَ الْبَارِقِيِّ رضي الله عنه ( أَنَّ رَسُولَ اَللَّهِ صلى الله عليه وسلم بَعَثَ مَعَهُ بِدِينَارٍ يَشْتَرِي لَهُ أُضْحِيَّةً )  اَلْحَدِيثَ رَوَاهُ اَلْبُخَارِيُّ فِي أَثْنَاءِ حَدِيثٍ, وَقَدْ تَقَدَّمَ
This hadith explain about hadith that reported by Urwah R.A that the prophet S.A.W gave him types one gold dinar to buy with it (be an agent for the Prophet S.A.W) a sheep but instead he managed to buy two sheep.[5] He then sold one of it for one gold dinar and then presented conditions the prophet with both the sheep and one gold dinar that he acquired. The prophet S.A.W prayed for him to be given blessings (barakah) in all his trade and transactions and application mentioned that even if he sells solid soil, he will definitely gain profit in it.This show that the prophet is use and allow wakalah in our daily life.  The other evidence based on sunnah is:
َعَنْ أَبِي هُرَيْرَةَ رضي الله عنه قَالَ: قَالَ رَسُولُ اَللَّهِ صلى الله عليه وسلم ( قَالَ اَللَّهُ: أَنَا ثَالِثُ اَلشَّرِيكَيْنِ مَا لَمْ يَخُنْ أَحَدُهُمَا صَاحِبَهُ, فَإِذَا خَانَ خَرَجْتُ مِنْ بَيْنِهِمَا )  رَوَاهُ أَبُو دَاوُدَ, وَصَحَّحَهُ اَلْحَاكِمُ
This hadith explain that Allah give her blessing to who the transaction and they are honest and sincere in their transaction.

c)      Ijmak:
The scholars also agree with the consensus on required of wakalah. They even have a likely agree and said that this concept is including the nature ta'awun and taqwa. Help each another is very encouraged by Islam. Allah said in al-quran:
وَتَعَاوَنُوا عَلَى الْبِرِّ وَالتَّقْوَىٰ ۖ وَلَا تَعَاوَنُوا عَلَى الْإِثْمِ وَالْعُدْوَانِ ۚ وَاتَّقُوا اللَّهَ ۖ إِنَّ اللَّهَ شَدِيدُ الْعِقَابِ[6]


1.4    BASIS AND CORNERSTONE OF AL-WAKALAH
Generally, it could be said that wakalah has four cornerstones, Ibn Rushd and others mentioned that there are four cornerstones for wakalah which are needed to be fulfilled during contract of wakalah. There are :
1.      Muwakkil: (Principal).
2.      Wakil: (Agent).
3.      The subject matter:
4.      Contract language (offer and acceptance)
However, Hanafi jurists stipulated only one cornerstone for wakalah contract which is contract of language in matters relating to ijab and qabul (offer and acceptance)[7]


1.5 LEGAL RULINGS REGARDING CONDITIONS TO AL-WAKALAH
There are rules which guide above-mentioned cornerstones which are as follow :
1.      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 void. Hanafi jurists also mentioned that it is lawful for minors al- Sabiyy al-Mumayyiz (that has reasoning ability) to delegate a person that can assist them with beneficial things to them. 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 transaction relating to the contract.
2.      Agent/wakil
Wakalah, in order to be accepted, the wakiil (agent) must be sane (aaqil). The agent should have full legal capacity (al-Ahliyyah al-Kamilah). 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. 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 contract.[8]
3.      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 thing. If the agency is for the purchase of a thing, the genuineness, kind, quality and other necessary attributes of the 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. Agency is not permissible for acts by Shari’ah 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 one’s wife by equating her back with the back of his mother).[9]

1.6 TYPES OF WAKALAH
Wakalah can be divided as follows;
1.      (al-Wakalah al-`Ammah) General Wakalah.
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 divorce. Thereby, the agent has no authority to divorce the principal’s wife unless the later specifically mentioned that in the contract.
2.      (al-wakalah al-Khassah) Specific Wakalah
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.
3.      (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 principal.
4.      (al-Wakalah al-Mutlaqah) Unrestricted Wakalah
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 the prevailing practices and customs. And if he acts contrary to the custom, then the transaction depends on the approval of the principal. 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 another.[10]

1.7 CONCEPT OF AL-WAKALAH
Wakalah concept or representation is required in accordance with the provisions set out by Islam and it is applicable in the various aspects of human life, whether they are touching the rights of God or in connection with the rights of human. The existence of this concept very significant to human which is very widely practiced in our daily activities and affairs. For example today, a variety of activities that occur in the course of trade in investment activity, investment, stock purchase, and there are also businesses in marketing activities, as introduced in Takaful Ikhlas, which requires the intermediate and expert in these areas to ensure the safety of capital as well as the rights of individuals from being exploited and so on. A lack of knowledge about a business or not enough in time to manage the business they are required by Shari'ah to delegate to others. For example : the bank or the agency to manage the transaction. The hukm of wakalah or reperesention is based on the al-Qur'an, the Sunnah and the consensus of scholars (ijmak).
            The contract of wakalah is about the provision of service. Some of these service include sale and purchase, letting and hiring, borrowing and lending, assignment of debt, guarantee, pledge, gifts, bailment, taking and making payments, litigation and relinquishment, admission and acknowledgement of rights. Islamic banks use the concept of wakalah in various Islamic products such as musharakah, murabahah, mudharabah, salam, istisna’a and ijarah. It is also used in payment and collection of trade bills, fund management and securitization. Banks normally charge  fee for agency services rendered by them on behalf of their clients. An agency contract could be specific or generalit could be both commutative and non-commutative the nature of the activity to be undertaken should be clearly defined to avoid any disputes. For example, if wakalah is for the sale or  of specific goods, the kind, quality, and other necessary attributes of the commodity should be clearly mentioned.
            An agent appointed to engage in buying and selling activities or to pay and receive a debt is considered to be a custodian of the principal’s property and in the fiduciary position of a trustee.[11] And in the absence of any instructions to the contrary, an agent appointed to sell goods can sell them for cash or on credit the agent can take a pledge of a security of payment in the case of goods sold on credit. Besides, an agent is not allowed to appoint another agent unless he himself is not capable to do it, in that case, he may appoint another agent with the consent of the principal. He must also avoid any conflict of interest such as selling goods to the principal without disclosing that such goods are owned by the agent.[12]

1.8 DELEGATION POWER FROM WAKIL TO ANOTHER PERSON
There are numerous opinions regarding the permissibility of an agent appointing another person to be his agent as well:
1.      According to Hanafi, it is allowed for general and absolute wakil to appoint someone else to be his agent.
2.      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 this this situation is permissible to delegate someone else.
3.      On the contrary, Shafi`i and Hanbali 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 agent.[13] 

1.9 TERMINATION OF WAKALAH
The termination of contract al-Wakalah will be ended through a few processes. They are :
1.      When one of the contracting parties terminates the contract. Wakalah is one contract that can be canceled. It means the owner may cancel this contract or dismiss agent at any desired time. At the same time agent also have the right to futile the appointment and withdrew from managing the estate of owner at any time. On this basis when owner expels agent, the contract is deemed to have expired. It is also same when the agent withdrew from the contract made by the owner.
2.      Termination of contact also occurs when one of the contracting mad. As we all know, owner and agent need to fulfill certain requirements before they are allowed to operate. If one of the conditions is not met, they are considered disqualified. The contract of representative is considered to revoked or terminated. This is because if this condition is not fulfilled when the contract is initiated, the contacts of course illegal. A similar situation occurs when the contract is underway. For example, one of the contracting parties verified lunatic.
3.      Wakalah contract also ends when one of the parties dies, even if death is not known to the other party. This is because the owner disqualifies to give consent after death. Similarly, the death of agent, the agent disqualification to manage the property.
4.      Termination of contract al-Wakalah can also occur when the purposes delegated completed. When agent completed their role as granted by the owner or his attorney, the contract is regarded as having expired. For example, the owner assign to his agent to sell his house and the agent successful to sell it. Then, delegation of role will not cease to exist and not need to be managed.[14]



[1]) Retrieved from http://www.financialislam.com/wakalah.html, 20 / 11 / 2013. 3.00 p.m.
[2]) Retrieved from http://www.scribd.com/doc/97553267/Al-Wakalah, 20 / 11 / 2013. 3.30 p.m.
[3]) Surah Al-Baqarah, 283
[4]) Surah Yusuf, 55
[5]) Retrieved from http://www.scribd.com/doc/97553267/Al-Wakalah, 20 / 11 / 2013. 3.30 p.m.
[6] ) Retrieved from http://www.scribd.com/doc/97553267/Al-Wakalah, 20 / 11 / 2013. 3.30 p.m.
[7]) Wahbah al-Zuhayli. 2003. Financial Transactions in Islamic Jurisprudence. First Edition. Damascus, Syria : Dar al-Fikr. Page 632.
[8]) Wahbah al-Zuhayli. 2003. Financial Transactions in Islamic Jurisprudence. First Edition. Damascus, Syria : Dar al-Fikr. Page 632.
[9]) Wahbah al-Zuhayli. 2003. Financial Transactions in Islamic Jurisprudence. First Edition. Damascus, Syria : Dar al-Fikr. Page 634.
[10]) Syed Mohd. Ghazali Wafa & Muhammad Nasri & Mohd. Nizam. 2003. Introduction to Islamic Bussiness. Third Edition. Selangor, Malaysia : Pearson Prentice Hall. Page 133.
[11]) Wakalah, Wikipedia, http://en.wikipedia.org/wiki/User:IslamicICI, 19 / 11 / 2013. 12.00 p.m.
[12]) Wakalah, Wikipedia, http://en.wikipedia.org/wiki/User:IslamicICI, 19 / 11 / 2013. 12.00 p.m.
[13]) Farid Sufian & Tajul Aris Ahmad Bustami & Mohd. Hisham Mohd. Kamal. 2007. Administration of Islamic Law in Malaysia. Second Edition. Selangor, Malaysia : LexisNexis. Page 233.

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