Problem # 59 If the deceased has mentioned hiring of the agent from his hometown, or we decide in favour of its obligation in all circumstances, but it is opposed and an agent is hired from Miqat, who performs Hajj, or someone volunteers to perform Hajj on behalf of the deceased, he shall be absolved of the liability, and the obligation of hiring an agent from his hometown shall drop. Similar shall be the case, if the money earmarked for this purpose does not allow hiring except from Miqat. If the deceased has specified hiring of the agent from some other town, it shall be binding and the excess over the Hajj from Miqat shall be paid from the one-third. If the executor or the heir hires an agent from the hometown of the deceased without there being anything to that effect in the will under the impression that the Hajj from Miqat would not be sufficient, the excess over the Hajj from Miqat shall be borne by the heirs or the rest of them.

Problem # 60 If the legacy does not suffice for hiring from Miqat except an emergency one from Mecca or some other place from outside, it shall be obligatory to do so, If an option is to be made between the hiring in emergency or from the hometown, the latter shall be preferred, and the excess shall be paid out of the legacy itself, If it is not possible to hire an agent except from the hometown, it shall be obligatory to do so. If the deceased owes some debt, Khums or Zakat, and the legacy does not suffice for their payment, it shall be divided proportionately.

Problem # 61 It is obligatory to hire the agent on behalf of the deceased within the year of his death, and not to delay it, particularly when the deceased was at fault in its non-fulfillment. If it is not possible to do so except from his hometown, it shall be obligatory to do so, and defray the excess from the legacy itself, even if it were possible from Miqat in the following years Similarly, if Hajj was possible from Miqat for more than usual in the year of deceased's death, it would be obligatory (to perform it within that year), and it must not be delayed. If the executor or the heir dilly-dallies it, and the legacy is destroyed, they shall be held responsible for it. If there were no legacy left by the deceased, his Hajj shall not be obligatory on his heir, though it shall be approved for his Wali.

Problem # 62 If there is difference of Taqlid between the deceased and the one who has been assigned the job of deciding whether (hiring for) the Hajj should be from the Miqat or from the hometown, the criterion shall be as per Taqlid of the latter. In case of there being several persons and differences, the matter shall be referred to the judge. Similarly, if both of them differ in respect of the obligation of Hajj, or otherwise, the criterion shall be (the Taqlid of) the latter. If there are several persons and difference, the matter shall be referred to the judge. The same shall be the case if the verdict of the deceased's Mujtahid is not known, when it is not known as to who was his Mujtahid, when he was not a Muqallid (of any Mujtahid), when it is known whether he was a ~Muqallid (of any Mujtahid) or not, or when the deceased was himself a Mujtahid, but his opinion differed with that of the person entrusted with the assignment, or when there is no knowledge about the deceased's opinion. 

Problem # 63 If there is knowledge about the pecuniary capability of the deceased, but not about other conditions, and there is no standard to establish them, there shall be no obligation for compensation on his behalf. If the obligation on him is established, but there is doubt about its fulfillment by him, compensation on his behalf shall be obligatory. Similarly, if there is knowledge about its invalid fulfillment, but there is doubt about its invalidity, it shall be considered valid.

Problem # 64 In case of unwillingness of the heirs and the existence of a minor heir among them, it is obligatory to hire a person who demands minimum wages provided that there is satisfaction with regard to his performance Of course, it is not necessary to make extraordinary inquiry in this regard, though it is more cautious.

Problem # 65 In case obligation of Hajj is established on a person and he is able to perform it, it would not be permissible for him to perform Hajj through another voluntarily or against payment. Similarly, he must not perform an approved Hajj (through another person) he performs it in violation of the rule, there shall be difficulty in its validity; rather, it would not be far from being invalid, without there being difference whether he had knowledge about its obligation or not. If, however, he is not able to perform it personally, it shall be valid if performed through another. If a person allows himself to be hired for another, despite his ability to perform it for himself, the hire shall be invalid, even if he were ignorant of it being obligatory on himself.

Chapter Two -Hajj for a Vow, a Pledge or an Oath

Problem # 1 For the performance of a Hajj for a vow, a pledge or an oath, it is a condition that the person must have maturity, sanity and free will. So it shall not be permissible if performed by a minor, even if he has attained ten years of age, though offering prayers would be valid. So also it would not be valid if performed by an insane, fainted, absent-minded, drunk or forced person, but, according to the stronger opinion, it is valid if performed by an infidel who believes in Allah, the Exalted, or one who believes in the possibility of Allah's existence and intends closeness to Him in acts where it is a condition.

Problem # 2 In case of a Hajj for oath by a wife or son, there must be the permission by the wife's husband and the son's father, a subsequent permission would not be sufficient It is a not far from there being no difference whether it regards the performance of an obligation or abstinence from a forbidden act, etc. But in both cases caution must not be given up; rather, caution is not to be given up. For the fulfillment of a votive offering by a wife her husband's permission is a condition, but in case of a votive offering by a son, apparently his father's permission is not a condition, as, according to the stronger opinion, fulfillment of a pledge does not depend on the permission of anyone. According to the stronger opinion, a temporary wife is to be included (in the rule relating to a wife), but the rule for the son does not include a grandson. There is no difference between a son and a daughter (in the application to the rule). But neither the mother is included in the rule relating to neither father, nor an infidel in (the rule relating to) a Muslim.

Problem # 3 If a person vows to perform Hajj from a specified place, but performs it from some other, he shall not be absolved of the liability. If a person vows to perform Hajj in a specified year, but he performs it in some other year, he shall be bound to atone for it. If a person vows to perform the Islamic Hajj from a particular place, but performs it from some other place, it shall be valid, but he shall be bound to atone for it. If a person vows to perform Hajj in a particular year, it shall not be permissible for him to delay it, so that if he delays it despite his capability, he shall be considered to have committed insubordination, and he shall have to compensate and atone for it. In case he does not specify any time, it is permissible for him to delay it until he presumes its non-fulfillment. In case he dies (before fulfilling it) despite his capability, according to the stronger opinion, it shall be compensated out of his actual legacy. In case he dies without being capable to fulfill his vow, it shall not be obligatory to compensate on his behalf. If he makes a vow contingent on some thing that does not happen until his death, its compensation shall not be obligatory on his behalf, Of course, if he makes a vow to send someone to Hajj and makes it contingent on a condition, and dies before its fulfillment, though it is fulfilled after his death despite its being likely to be fulfilled even before his death, then apparently its compensation shall be obligatory on his behalf, as when he vows to send someone to Hajj in a specified year, but fails to fulfill it despite his capability, its compensation and atonement shall be obligatory on him and if he dies before sending him to Hajj its compensation and atonement shall both be performed out of his actual legacy, The same shall be the case if he vows to send someone to Hajj without any condition or contingent on something that happens while he was capable, but he fails to fulfill it until his death.

Problem # 4 If a capable person vows to perform Islamic Hajj it shall be established, and its performance shall be sufficient. But if he abandons it until he dies, its compensation and atonement shall be obligatory out of his legacy. If, however, an incapable person vows it, it shall also be established, and it shall be obligatory on him to attain capability, except when he vows for Hajj after capability.

Problem # 5 In a votive Hajj Shar’i capability is not a condition; rather, mental capability is obligatory, except when it may cause some distress or some damage to his person, honour or property, and that may cause his distress.

Problem # 6 If a person vows to perform a Hajj other than an Islamic Hajj in its year while having its capability, it shall be established, but the Islamic Hajj shall be given priority. If he loses capability, the votive Hajj shall be obligatory on him, so that if he abandons it, it shall not be far from entailing obligation of atonement. If, however, he vows to perform Hajj while not having capability, and later attains it, the Islamic Hajj shall be given priority, even if the time for the performance of his votive Hajj were short. Similarly, if he vows to perform Hajj promptly, he must still give priority to the Islamic Hajj and perform the votive one next year. If, however, he vows to perform Hajj without any specification while he was capable or attained capability later, without any reversion, then, according to the opinion closer to traditional authority, a single Hajj shall suffice for both, provided that he intends both. Nevertheless, he must not give up caution, in case he does not intend to include the Islamic Hajj  by performing each of them separately, giving priority to the Islamic Hajj. 

Problem # 7 It is permissible to perform an approved Hajj before the votive Hajj having ample time for its performance. If a person contravenes the rule relating to a Hajj for whose performance time is short, and performs the approved Hajj  it shall be valid, but he shall be liable to atone for it.

Problem # 8 If there is knowledge about a deceased person owing Hajj  without the knowledge whether it is an Islamic Hajj or a votive one, its compensation shall be obligatory on his behalf without specifying it, and he shall be under no obligation of atonement. If there is hesitation between the votive Hajj and Hajj for oath accompanied by atonement, (in that case), atonement shall also be obligatory, and it shall suffice to feed ten poor persons, though it would be more cautious to feed sixty of them.

Problem # 9 If a person vows to perform Hajj on foot, it shall be established, even when it was preferred to perform by riding. Similarly, if a person vows to perform Hajj by riding, it shall also be established and it shall be obligatory even when it was preferred to perform on foot. The same rule shall apply, if he vows to cover part of the passage on foot Similar shall be the case if he vows to perform Hajj barefooted. But, in both cases, the capability of the person vowing as well as their not causing harm or trouble is a condition, so that it shall not be established if it were there initially, while its obligation shall drop if it happens to be so on the way. The starting point for going on foot or bare-footed depends on how he specifies, though it is subject to reversion, and its final point is (the place of) Ram'y al-Jamar (or Ram'y al-Jamarat, throwing pebbles on the three Satans in Hajj) in case of non-specification.

Problem # 10 For a person who has vowed to perform Hajj on foot or walk on foot during Hajj  it is not permissible to sail on the sea or the like. If, however, it becomes necessary due to some hurdle on the other ways, the condition shall drop. If it were from the outset, the condition shall not be established. If on his way there is a river or canal which cannot be crossed except by sailing (in a boat), according to the stronger opinion, it shall be obligatory on him to keep standing while aboard.

Problem # 11 If a person vows to perform Hajj on foot, it would not suffice to go riding. If there is ample time for Hajj it must be performed, but if the time is short and he has violated the condition, he shall be bound to atone for it without compensating it. If he has vowed to perform a specified Hajj on foot, and performs its riding, it shall be valid, and he shall be liable to atone for it without compensating it. If he has been riding in part of the way, and not riding in another, it shall be treated as riding throughout

Problem # 12 If a person is unable to go on foot after the establishment of his vow (to perform Hajj on foot), it shall be obligatory on him to perform Hajj riding in all circumstances, regardless whether it is confined to a year or not, and whether and he has lost hope of his capability later or not. Of course, he must not give up caution by repeating it if no condition has been made in the vow and he has not lost hope of regaining capability, and the inability were there before starting to go (for Hajj), while the capability has been attained subsequently. It is more cautious to traverse part of the way on foot as much as possible; rather, this caution is not devoid of force. On the question whether other impediments like sickness, fear, (presence of) an enemy, or the like fall under the category of inability, there are two opinions. It is not far from differentiating between sickness and an enemy, so that the former may be counted as inability but not the latter.

Chapter Three -Proxy (in Hajj)

Proxy in Hajj is absolutely valid in case of a deceased person, for an approved Hajj for a living person and in some cases of obligatory Hajj.

Problem # 1 In an agent, the following conditions are obligatory.

First: Maturity, according to the more cautious opinion, without any difference whether he is hired or a volunteer, and with or without the permission of the Wali. There is difficulty in its validity in case of an approved Hajj.

Second: Sanity, so that it is not valid if he were insane, though having periodical insanity, during the period of insanity. But there is no objection in the proxy of an idiot,

Third: Faith (in Islam),

Fourth: Satisfaction regarding his performance of Hajj. But after this satisfaction, further satisfaction as his correct performance is not a condition. If there is surety of his performance of Hajj, but doubt regarding correct one, his proxy shall be valid, even apparently in case of knowledge prior to performance. But in this case, according to the more cautious opinion, there would be a condition of correct performance.

Fifth: Knowledge of the rites and rules of Hajj though under the direction of a Mu'allim during performance of each rite.

Sixth: Absence of his liability for the performance of an obligatory Hajj during that year, as already mentioned.

Seventh: Must not be excused for giving up some rites of Hajj. There is also difficulty in sufficiency of his volunteering (to perform Hajj).

Problem # 2 For a person appointing an agent, Islam is a condition, so that it is not valid for an infidel to do so. If it is supposed that he might benefit by offering reward to another, then it is not far from being valid. If he dies while he was capable, it is not obligatory on his Muslim heir to hire someone (to perform Hajj) on his behalf. For an obligatory Hajj, there is a condition of his inability, regardless whether he is alive or dead, and in his case, there is no condition of maturity or insanity. If it is established on an insane person during the period of his sanity, and then he would die insane, it shall be obligatory to hire someone (to perform Hajj) on his behalf. There is no condition of identity of sex between the agent and his principal. Appointing an agent of either sex for a person of either sex performing Hajj for the first time is valid.

Problem # 3 For the validity of a proxy Hajj intention of proxy as well as specifying the person to be represented, though briefly, is a condition, not mentioning his name, though it would be approved in all places and positions. Proxy by Ju'alah is valid as it is valid by hiring or volunteering.

Problem # 4 A person appointing another (to perform Hajj) is not absolved of his liability except by appointing a proper person. Of course, if the agent dies after tying Ihram and entering the Haram, it would suffice for him, otherwise not, even if he dies after tying Ihram. There is, however, difficulty in application of this rule in case of a volunteering Hajj. Rather there is difficulty (in the application of this rule) in case other than an obligatory Hajj.

Problem # 5 If the hired person dies after tying Ihram and entering the Haram, he shall be entitled to full wages in case he was hired to absolve the liability in whatever way it may be, while in relation to the rites performed if he were hired for the performance of specified rites, while the preliminaries were not included in the (contract for) hire. In such case, if he dies before tying Ihram, he shall not be entitled to anything. As regards Ihram, it is included in the hired performance without any exception, not going to Mecca after tying Ihram and to Mina and 'Arafat, for which he is not entitled to receive anything. If walking and the preliminaries were also included in the contract for hire, he shall be entitled to receive the wages in their respect in all circumstances, though they might have been required as a preliminary. This is so if it has been specifically mentioned in the (contract for) hire, but it shall be so even if it is left unmentioned, as he would be entitled to his full wages in such case if he performs the Hajj according to the usual correct form, even if there is some nominal deficiency. If it were a deficiency requiring compensation, apparently its liability shall be on the agent and not the principal.

Problem # 6 If the agent dies before tying Ihram, the (contract for) hire shall stand cancelled if it were to be performed in a specified year personally or through another person provided it is not possible to perform it in that year. If its time were unspecified and without the condition of being performed personally in that year, and it was possible to send someone to perform Hajj in that year, its expenses shall be defrayed from the agent's legacy. In both the suppositions, if the contract for hire were for the performance of the Hajj itself, he shall not be entitled to anything for what he has performed.

Problem # 7 It is obligatory to mention the type of Hajj in the contract for hire where there is option between the types, for example, like an approved or general votive Hajj. According to the more cautious opinion, it is not permissible to refrain from it, even if it were preferable, except with the permission of the principal. If it were a specified type, permission for refraining from it shall be of no avail. In case he refrains with the principal's permission, he shall be entitled to the specified wages in the first case, and his proper wages in the second when he has refrained by the principal's order.

If the agent refrains in the first case without the principal's consent, it shall be valid for the principal, and, according to the more cautious opinion, the matter relating to the wages for hire may be settled by mutual agreement, if the specification has been made by way of determination. But if it were by way of a condition, then he shall be entitled to it, except when the principal declares it cancelled, in which case he shall be entitled to his proper wages, not the specified one.

Problem # 8 It is not a condition in a contract for hire to specify the route, even if it were a Hajj where the agent is to be appointed from a specific town. But if the route were specified, it is not permissible to refrain from it, except when it is established that the principal did not mean it specially, and it was mentioned just as usual, and the principal were also consented. In such case, if he refrains from it, he shall be entitled to full wages.

The same shall be the case if the right of specification has dropped after the conclusion of the contract. If there was a condition of a specific route in the contract for hire, and the agent has refrained from it, the Hajj for the principal shall be valid, and he shall be absolved from his liability if it were not specified with a particular route, and the agent shall not be entitled to anything in case the route specified was specially meant, in the sense that the Hajj by a specific route was actually meant in the contract for hire, and the agent shall be entitled to the specified wages, and his wages in proportion to what he had refrained shall drop, if it was a portion of the contract, (the other portion having related to the performance of the Hajj itself, to which the agent shall be entitled in case it is mentioned as a separate item).

Problem # 9 If a person contracts to perform Hajj personally on behalf of another in a specific year, and then contracts again to perform Hajj personally on behalf of yet another person in the same year, the second contract shall be declared void. If, however, he does not stipulate to perform it personally in one or both of them, both shall be valid. The same shall be the rule if the time of one or both is extensible, or one or both of them is unconditional (as regards the year of their performance), and if there is no aversion in both to prompt performance. If both the contracts are concluded simultaneously with the condition of simultaneous and personal performance, both shall be declared void.

Problem # 10 If a person contracts to perform Hajj in a specific year, it shall not be permissible for him to perform it later or earlier Hajj the specific time except with the consent of the principal. If he delays the performance, then it shall not be far from the principal having the option of either rescinding the contract or demanding the specified wages and either not cancelling it or demanding proper wages without any difference whether the delay has been due to some excuse or not. This is the case when the contract has been concluded with a specification (as to the time, etc)

If, it contains a condition (as to its performance in a specific year), the principal shall have the option to rescind it, so that if he rescinds it, he may demand the specified wages. If he performs the Hajj later than specified in the contract, he shall not be entitled to anything in the first case, while the principal shall be absolved of his obligation (of performing Hajj, and shall be entitled to the specified wages in the second case, except when the principal opts to rescind it, in which case it shall revert to the proper wages. If it was in general terms and we decide in favour of its prompt performance, it shall not be cancelled even in the event of disregard (on the part of the agent). As regards the establishment of option for the principal, there are detailed rules about it.

Problem # 11 If the agent is detained or confined, his case will be similar to that of a person performing Hajj for himself as regards performance of the obligatory rites, and the contract shall be declared void if its performance were confined to that year, but the liability of performing Hajj on him shall subsist, provided that it were in general terms. If the contract contains a condition (about the performance of Hajj in that year), the principal shall have the option to rescind it for violation by the agent, and it would not be sufficient to (absolve the principal of his obligation), even if it were after tying Ihram and entering Haram. In case of a condition for its performance in that very year, and the undertaking by the agent to perform it in future, the principal shall not be bound to accept it, and shall be entitled to receive the wages in proportion to the rites performed by the agent according to the afore mentioned details.

Problem # 12 The cost of two cloths for Ihram and the sacrificial animal shall be borne by the agent, except when stipulated otherwise. Likewise, the agent shall atone from his property for any act entailing atonement committed by him.

Problem # 13 The unconditional conclusion of a contract demands promptness in the sense of maturity of its time of performance, not in the sense of immediacy except in case of an aversion to that effect. In such case, it would be similar to a contract for sale, and the principal shall be entitled to demand its performance, in which case it shall have to be expedited. Similarly it also demands personal performance, so that it shall not be permissible for the agent to hire another except with the (principal's) permission.

Problem # 14 If the wages fall short (of the expenses on Hajj), the principal shall not be bound to complement it, as, in case it is more Hajj the expenses, he shall not be entitled to demand return (of the surplus).

Problem # 15 The agent owns the wages by conclusion of the contract, but the principal is not bound to pay it but after the performance except in case of a stipulation to the effect of promptness or the tenor does not mean aversion, etc such as the existing position or the like There is no difference in its obligation whether it is a capital asset or a debt. If it were a capital asset, any growth in it shall belong to the agent, and it shall not be permissible for the executor or the deceased's representative to deliver it before the performance except with the permission of the legator or his representative. If they do so, they shall be held responsible in case of non-performance by the agent or his act being declared invalid. (Likewise) it is not permissible for the deceased's representative to stipulate prompt performance except with the permission of his principal. The executor, however, shall be entitled to stipulate if it becomes inevitable. In such case, he shall not be held responsible if he delivers it if the agent is not able to perform it; the principal shall be entitled to rescind the contract. In case of status quo until the expiry of the time, apparently the contract becomes ineffective. If it is usual to pay the wages or part thereof before departure, the agent shall be entitled to demand it in case the contract were unconditional, and it would be permissible for the deceased's representative or executor to pay it without being held responsible for it.

Problem # 16  For a person who owes Hajj-al Tamattu' it is not permissible to hire another whose time for the performance of Hajj-al Tamattu' is short and so he has been obliged to revert to Hajj-al Ifrad .If he hires him when he had ample time, but later the time became short, then, according to the stronger opinion, it shall be obligatory on him to refrain, and, according to the more cautious opinion, it shall not be sufficient for the person on whose behalf it is performed.

Problem # 17 It is permissible to volunteer performance of all types of obligatory and approved Hajj on behalf of the deceased; rather, it is permissible to volunteer an approved Hajj, though the deceased owed an obligatory Hajj even before a person is hired on his behalf. Similarly, it is permissible to hire a person to perform an approved Hajj of any type. The rule relating to a live person in case of an obligatory Hajj has already been mentioned. As regards an approved Hajj, it is permissible to volunteer to perform Hajj on his behalf, as it is also permissible to hire someone to perform Hajj on his behalf if he owes an obligatory Hajj and he were not presently able to perform it; rather, even in case of his ability, So permission to hire a person to perform an approved Hajj before an obligatory Hajj provided that it does not obstruct the performance of the obligatory Hajjis not devoid of force, in the same way as, according to the stronger opinion, it is valid to volunteer to perform it on his behalf.

Problem # 18 It is not permissible for a single person to perform obligatory Hajj on behalf of two or more persons in a single year, except when both of them shared the obligation, as, when both of them should vow to share with each other the performance of Hajj. It is also permissible to do so in case of an approved Hajj as it is permissible for offering reward (to another).

Problem # 19 It is permissible for a group to perform an approved Hajj on behalf of a deceased or live person in a single year voluntarily or against payment. Rather it is also permissible in case of an obligatory Hajj as when the deceased owed two different types of Hajj like an Islamic Hajj and a votive Hajj or two Hajjs of the same type, as two votive Hajjs. As regards hiring a person to perform a votive Hajj on behalf of a live person who is unable to perform it himself, it is difficult (to declare it valid), as already mentioned. Similarly, it shall be permissible if it were obligatory for one and approved for another. Rather, it is also permissible to hire two agents for the performance of a single obligatory Hajj like an Islamic Hajj in a single year. So it shall be valid to have the intention of performing an obligatory Hajj in each case, even if one of them were ahead of the other in starting it, but both of them must finish it simultaneously.