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The rules on pilgrimage by proxy
(Niyabah)

Rule 103:

Qualifications of the
agent:

First: Adulthood

An obligatory pilgrimage performed by a minor,
acting as proxy, is not valid, be it Hajjatul Islam or any other type of
pilgrimage, even if the minor is capable of rational action, as a matter of
precaution (alal ahwat). However, it may be true to say that an optional
pilgrimage performed by a minor, in his capacity as agent, with the approval of
his guardian is valid.

Second:

State of Mind

A pilgrimage performed by an agent of
unsound mind is not valid, whether the disease is permanent or intermittent, if
the pilgrimage is performed when the agent is experiencing a spell of the
disease. However, there is no objection to employing an incompetent (safih)
person as an agent.

Third:

Faith

As a matter of precaution, a pilgrimage
performed by an agent who is a non-believer would not count as valid, even if it
was performed in accordance with the rules of our school of thought.

Fourth:

The Agent's Freedom

The agent himself must not be
obligated to perform an obligatory pilgrimage in the year in which he is
appointed agent. If he is unaware or unmindful of his obligation he can still be
appointed agent. This condition affects the validity of the appointment of the
agent, not the validity of his pilgrimage.

Thus, even if there was an
obligation on the agent to perform a pilgrimage personally, the obligation of
his principal for performing pilgrimage will be discharged. However, the agent
will not be entitled to the stipulated remuneration, but only to the usual
amount.

Rule 104:

It is not necessary that the
agent be judicious (adil). However, he must be reliable insofar as performing
pilgrimage is concerned.

Rule 105:

The principal's obligation
will be met only upon the proper completion of the pilgrimage by the agent. It
follows that the agent must be conversant with the procedure of pilgrimage and
its rules, albeit through coaching in every rite. When a doubt arises about his
performing the rituals, he can ignore it.

Rule 106:

There is no objection to the
appointment of an agent for a discerning youth or an insane person. Indeed, an
agent must be appointed if the pilgrimage became obligatory on a person of
unsound mind during his period of sanity but died insane.

Rule 107:

There is no requirement that
the principal and agent be homogeneous. The appointment of a male agent for a
female principal and vice versa is valid.

Rule 108:

There is no objection to
appointing, as agent, a person who has not been to pilgrimage before,
irrespective of whether or not the principal had been on pilgrimage before. The
gender of the agent or the principal does not matter. Some scholars say that it
is discouraged (makrouh) to appoint, as agent, a person who has not been on
pilgrimage before, but this is not proved.

However, in the case of a
principal who is alive but has not been able to perform Hajjatul Islam or had a
pilgrimage to perform, but died before performing it, it is preferable to
appoint, as agent, a person who has not been on pilgrimage before.

Rule 109:

It is necessary that the
principal must be Muslim. Thus, acting as agent for an infidel is invalid, even
if the infidel has died while still enjoying some wealth. If his heir is a
Muslim, it is not obligatory on him to appoint an agent to perform an obligatory
pilgrimage for the deceased.

As for an enemy of Ahlul Bait (the Household of
the Prophet 's.a.w.'), acting as agent for him, it is not in order, except that
it is permissible for a son of such a person himself to perform an obligatory
pilgrimage for his father; for the other relatives there is ishkal (problem).
However, there is no harm in performing pilgrimage and dedicating its reward
(thawab) to a relative.

Rule 110:

There is no objection to
appointing an agent to perform an optional pilgrimage for a living person,
whether gratuitously or for reward. The same goes for an obligatory pilgrimage
for a person who is unable to do it personally for a valid reason. Performing
pilgrimage by proxy on behalf of a living person is not permissible, apart from
these two cases. An appointment of an agent for a dead person is always valid,
whether gratuitous or for reward and whether for an obligatory or an optional
pilgrimage.

Rule 111:

It is necessary for the
validity of the agency that the intent must be to perform pilgrimage for the
principal, who should be known through any means of identification. Although it
is not necessary that his name be uttered, it is recommended that the principal
be remembered in all the ceremonies.

Rule 112:

Just as performing an
obligatory pilgrimage is valid, whether it is gratuitous or by permission, so is
it valid if it is for reward or in fulfilment of a condition of contract.

Rule 113:

Apparently (adh'dhahir), the
agent must act as if the pilgrimage is for himself with regard to the rules on
incapacity, i.e. as though they would have applied to him in his own pilgrimage.
Also, the rules relating to the order of the ceremonies must be
observed.

However, in the final analysis, a pilgrimage can be valid in one
case but not in the other. For example, if the incapacity occurs during the stay
at Arafat, he can choose the emergency stay; thus, the pilgrimage be valid and
the principal acquitted from the responsibility. However, if he was unable to
remain in Arafat for either the normal or the emergency stay, his pilgrimage is
invalid.

It is not permissible to employ a person who knows he will be unable
to perform the optional rituals, as a matter of precaution (ihtiyat). Indeed,
there is ishkal (problem) in accepting as correct the performance of rituals of
an unpaid volunteer agent. However, there is no objection to engaging a person
who knows that he will move under a shade or will omit ceremonies which would
not invalidate the pilgrimage, even though the omission was deliberate, like
Tawafun Nisa, or staying in Mina for the evenings of 11th or 12th.

Rule 114:

If the agent dies before
wearing ihram , the pilgrimage is not valid for the principal and it is
obligatory to appoint another agent to perform the pilgrimage again. If the
agent dies after wearing ihram, the pilgrimage will be valid and it is clearly
so if he dies after wearing ihram in the precincts of the Holy Mosque, as a
matter of precaution. There is no difference in this regard between Hajjatul
Islam and other types of pilgrimage, in the case of a paid agent; as for an
unpaid volunteer one, judging the validity of pilgrimage so performed is not
free from ishkal.

Rule 115:

If the agent dies after
wearing ihram and entering the Holy Mosque, he is entitled to his full
remuneration if his appointment was to have the deceased absolved from his
obligation.However, if his appointment was to perform certain ceremonies, he
will be entitled to so much of the agreed remuneration as would be commensurate
with the ceremonies performed by him.

If he died before wearing ihram, he
would not be entitled to anything. However, if the part relating to
preliminaries is included in the agreement of the agency, he would be entitled
to an amount proportionate to the tasks performed by him.

Rule 116:

If the appointment was from
the country of the principal but the route to be taken by him to Makkah was not
specified, the agent is free to choose the route. However, if the route has been
laid out in the agreement, it is not permissible to disregard it. If the agent
uses another one, completes the ceremonies, then and if the provision of the
route in the agreement of agency was only as a condition, and not a specific
term of the agreement, the agent is entitled to his full remuneration.

The
other party is entitled to repudiate the agreement for breach of the condition,
in which event the agent will be able to recover only the usual remuneration
paid for the pilgrimage and not the agreed wage. If the specified route was a
term of the agreement, the other party can again repudiate it. If it is
repudiated, the agent is entitled to the usual remuneration for the parts of the
agreement he performed, but not for the route he took; the parts he did not
comply with will be ignored. If it is not repudiated, the agent is entitled to
the agreed remuneration.

Rule 117:

If a person agrees to become
an agent for a person to perform an obligatory pilgrimage in a specified year,
and then agrees with another to perform an obligatory pilgrimage on his behalf
in the same year, the second agreement is invalid. The two agencies would be
valid if they are taken out in respect of different years, or if one or both of
them were not to be performed immediately.

Rule 118:

If a person agrees to
perform a pilgrimage as an agent in a specified year, it is not permissible for
him to do so in an earlier or subsequent year than that specified. He can do so
only with the consent of the principal who will be acquitted, of the obligation,
by the performance in the different year. The agent will not be entitled to
claim his remuneration, if he hastened or delayed the pilgrimage without the
consent of the person who appointed him.

Rule 119:

If an agent is prevented or
blocked from performing the ceremonies, the same rules apply to him as would
have applied to the principal if he had been performing the pilgrimage
personally. These rules will be set out below. If the agency agreement was
confined to that year, it becomes annulled. If it was not, the liability to
perform it remains on his shoulders, and the principal can repudiate it, if
there was a condition that the pilgrimage be performed in that year.

Rule 120:

If the agent commits an act
which attracts a kaffarah, he must pay for it from his own property, regardless
of whether the agency is gratuitous or for a reward.

Rule 121:

If the remuneration for
pilgrimage is a fixed sum which proved insufficient for the expenses, it is not
obligatory on the principal to meet the shortfall. Likewise, if the remuneration
proved in excess, the agent would not be obliged to refund the excess.

Rule 122:

If a person is appointed
agent to perform an obligatory or an optional pilgrimage but vitiates it by
having sex before reaching Mash'ar, it is obligatory on him to complete the
pilgrimage, which will be valid insofar as the principal is concerned.

It is
obligatory on the agent to perform an obligatory pilgrimage in the ensuing year
and pay a penalty. However, it is obvious (adh'dhahir) that he is entitled to
his remuneration. If he does not perform the pilgrimage in the ensuing year, for
good reason or without it, the rule still applies, requiring him to perform the
pilgrimage at his own expense.

Rule 123:

Although according to the
agreement, the remuneration becomes the property of the agent, it is not
obligatory to make payment to him until he has completed the pilgrimage unless
there was express agreement for earlier payment. It is clear that the agent can
stipulate that the remuneration be paid before the pilgrimage, for generally it
is not usual that an agent should proceed on the pilgrimage and undertake all
the ceremonies without having received the remuneration.

Rule 124:

If a person is appointed
agent for pilgrimage, he cannot subcontract it to another person without the
consent of the party who appointed him. However, should the hire be in return
for a debt, and no date was appointed to start pilgrimage, the principal is free
to hire another person.

Rule 125:

If a person is appointed an
agent to perform Hajj-ut-Tamatu' in good time but, per chance, the time became
short and the agent changedHajj-ut-Tamatu' into Hajj-ul-Ifraad, and after
completing it performs the Umrat-ul-Mufradah, the obligation of the principal
will be discharged.

However, the agent will not be entitled to his
remuneration, if his appointment was conditional on performing the ceremonies.
If, on the other hand, it was conditional on the obligation of the deceased
being discharged, he will be entitled to the remuneration.

Rule 126:

If the pilgrimage is
optional, there is no objection to the agent performing it on behalf of a number
of people. With regard to obligatory pilgrimages, an agent can perform it on
behalf of one person only, except if the pilgrimage has become obligatory on two
or more persons jointly.

For example, if two persons make a vow that they
will together with a third jointly contribute towards the remuneration of an
agent to perform a pilgrimage, it is permissible for them to appoint one agent
on their behalf.

Rule 127:

If the pilgrimage is
optional, there is no objection to a number of people becoming agents in one
year on behalf of one person, living or dead, gratuitously or for reward. The
same rule applies to obligatory pilgrimages, if they are many. For example,
there may be two pilgrimages obligatory on a person, living or dead, in respect
of two vows, or one of them may be Hajjatul Islam and the other obligatory by
reason of a vow. In such circumstances, it is permissible to appoint two agents,
each to perform one of them.

Similarly, it is permissible to appoint two
agents, one of them in respect of an obligatory pilgrimage and the other an
optional one. It is not far from correct to say that two persons can be
appointed agents for the same obligatory pilgrimage like Hajjatul Islam, as a
matter of precaution, in the fear that the pilgrimage of one of them may be
spoiled.

Rule 128:

tawaf is a recommended act
of worship in itself. It is, therefore, permissible to appoint an agent to do it
on behalf of a deceased and also a living person who is away from Makkah, or in
it, but was unable to perform it himself immediately.

Rule 129:

There is no objection to an
agent, on completion of the pilgrimage for which he was appointed, performing an
Umrat-ul-Mufradah for himself or another person. Likewise, he can then make
tawaf for himself or another person.