Section Fourteen
Power of Attorney
Al-Wakāla
1264. A wakālah is: a contract in which a person empowers another to act in his place in contracts, declarations or work in which it is valid that others carry it out. It must include proposal and acceptance using any words or acts that secure it.
1245. The power of attorney is a flexible/open type of contract between the two parties, so the authorised person (wakīl) has the right to relieve himself from the power of attorney’s responsibility whenever he likes, whether the authorising person (mowekkil) is present and /or knows or not; it is also the right of the authorising person to relieve the person with power of attorney in the same manner; however the actual activation of this release done by the authorising person is conditional upon the knowledge of the person with power of attorney. However, if one of them made it conditional on the other not to invalidate the wakālah ever or for a certain period, it becomes obligatory to observe the condition, so if one of them violates what the condition implies, he has sinned, (but) it is an obligatory precaution on the two parties to observe the consequences of the relieving the other party or oneself of the power of attorney.
1266. The power of attorney is invalidated and cancelled – in addition to the situation of choosing to invalidate it by one of the two parties – by one of the following:
1- The death of the authorised person or the authorising person.
2- The permanent loss of sanity of one of them due to insanity or losing consciousness.
3- The finite change of circumstances of the subject of the transaction he is authorised to act on, such as if one party authorises the other to marry him to a woman but she dies or gets married.
4- The disposal of the authorising person that contradicts the given special power of attorney, such as being authorised by someone to sell his house for him, then the authorising person makes it as waqf or hibah, or the authorising person accomplishes what he authorised him to do, such as authorising him to sell his house then he sells it before the authorised person does.
1267. The conditions of the two contracting parties are sanity, intention and free will, also the guardian’s permission if the authorising person is a momayyiz child (one who has become aware of sexual things), and not being indicted for unreasonable conduct if the power of attorney involves financial matters; however a person indicted for bankruptcy is allowed to give power of attorney over his indicted assets, but the authorised person’s disposal of the assets cannot go through during the period of indictment.
It is also valid if the momayyiz child is authorised (given power of attorney) without his guardian’s permission.
The authorised person must be capable of attending to what he has been authorised to.
1268. The ability to fulfil the task is not conditional in the power of attorney, but it is allowed to make it pending something else, such as the contract making someone an authorized person if Muhamad returns from his travel, or when the beginning of the month arrives; not to mention allowing it to be pending something that relates to the subject of the wakālah, such as someone authorising another person to sell his house for him if its price rises, or in a certain given time, in which case he is not regarded as an authorised person, nor can his actions go through, until after the pending matter takes place.
1269. It is obligatory on the authorised person to limit his disposal to what the power of attorney covers explicitly or through wording or situation indicators, or what the contract implicitly implies.
1270. If the authorised person, in his work, violates what the authorising person has appointed him to do, the ruling shall be as follows:
1- If his disposal contradicts what the power of attorney implies, such as if it authorises him to sell a house but he rented it out or gave it away as a gift, in this case:
a- If this can be carried out as a fodūli (an inquisitive person who acts on behalf of another but without the latter’s orders) act, such as in contracts, in this case its validity depends on the approval of the authorising person – if he approves it, it is valid, otherwise it is not valid.
b- If this cannot be carried out as a fodūli act, such as relieving a debtor from a debt or divorcing a wife, here his disposal is principally invalid and the acceptance of the authorising person cannot validate it.
2- If his disposal does not contradict what the power of attorney implies, but does so in some of its particularities specific to the task/transaction, such as if he was asked to sell something for cash but he sold it on the basis of a postponed payment, or to sell with a choice but he sold it without it, here also the validity of the transaction depends on the approval of the person authorising it.
1271. It is not allowed for the authorised person to benefit from the asset which he is authorised to sell, rent or dispose of under other transactions, in a way that does not match what the power of attorney implies without the permission of the authorising person, such as living in the house or wearing the clothes in question; if he does that, he has sinned but his power of attorney is not invalidated and his actions to carry out what he was authorised to do and executing them are valid. However, if he benefited in a way that contradicts what the power of attorney implies, in this case – as mentioned previously – the power of attorney gets invalidated and cancelled.
1272. The authorised person is entrusted with the authorising person’s assets that are under his control, so compensation will not be due from him if some of it gets damaged when under his control, provided that this was not as a result of his negligence in preserving it nor violation of the limits which the authorising person had given him.
1273. It is allowed for he authorised person to take money for doing what he is authorised to, according to what he agrees on with the authorising person.
Addendum on the law profession
Since part of the law profession is that the lawyer/solicitor is authorised to carry out transactions and case presentations/defense in the courts, it is suitable to include here some of the relevant rulings relating to the power of attorney and other matters.
1274. There is no objection in the Shari’ah to specialising in the law profession, through studying the man-legislated laws, even if they contradict the rulings of the Islamic Shari’ah; however, there are, in practising the profession, some forbidden things as follows:
1- It is not allowed to offer legal advice to any Muslim who wants to do something that violates the Islamic Shari’ah, nor to anyone who wants to usurp the right of another and inflict injustice on him, whether a Muslim or non-Muslim; this is also not allowed for anyone who wants to violate any of the laws enforced to protect public order, whether in an Islamic state or any other, such as the laws for preserving the environment, public safety and the like.
2- It is not allowed for the lawyer to be an authorised by a Muslim nor others to carry out transactions that are forbidden for Muslims, such as selling alcoholic beverages, pork or ribā (interest), or other things mentioned in the forbidden acts (nos. 844-862).
3- It is not allowed that the lawyer takes on lawsuits which the authorising person has no right to pursue according to the Shari’ah, and even lawsuits which he does have the right to pursue if the case is to be set before an unjust judge, unless his right cannot be obtained by resorting to judge other than the unjust one.
4- It is not allowed for the lawyer to use means prohibited by the Shari’ah in order to win a rightful case for his client, such as lying, forging, false witness, bribes etc., even if obtaining justice depended on these. It is also not allowed for him to do these things to prevent harm coming to his client or to rescue him from the unjust ruler unless a greater evil is the alternative and the oppressed fails to defend himself.