written by AbdulGaniy Adisa Jimoh
ABSTRACT – Without any modicum of doubt, the modern Muslim jurists acknowledge the fact that there has never been any modification of Law of any agency (hereinafter termed as “Al-Nyaba/ Al Wakalah”) since the incipient stage of Islam.[1] It is deemed in Islamic Law texts as an appointed contract with its own specific rules.
As a matter of fact, agency is deemed in Islamic Law as the choosing of a person called Wakil (agent) to serve as a vicegerent to the other person known as Muwakil (principal) in a common contract that belongs to the principal (the owner of businesses) and equally predisposed to business.Be that as it may, this treatise seeks to provide an answer to the distilled question— “Does Islamic Law of Contract recognized Electronic Agency”?, vide the introductory part to the concluding segment.
Keywords: Islamic Law, Islamic Law of Contract, Electronic Agency.
INTRODUCTION
It is evident from the saying of the prophet that “When God wishes good for anyone. He instructed him in the religion.” [2]In the breadth of this, Islam has centralized on multifarious aspect of Muslims’ lifestyles which the subject of discussion is not an exception. Sharia denotes a clear set of rules that pinpoint to the Muslims in leading an ethical life. In the Arabic parlance, it means “the way,” according to scholar Asma Afsaruddin.
It is a light for most Muslims to acquire moral direction on their way of life, how to pray, and care for a family member.[3] In the context of Islamic Law,” Agency” in the Arabic parlance connotes “Wakalah”, “Nyabah”, an attempt to provide definition for agency in Islamic Law gives the below definition “Authorizing a capable person, similar to him ( the principal),to achieve something that can be authorized under the Law of agency.[4].
That is, not every other matter under Islamic Law could be delegated for others to do.[5]In another fashion, it is the appointment of a person called wakil (agent) to represent the other called Muwakil(principal) in certain well-known contract which belongs to the principal and which is susceptible to representation.[6]Islamic Law of contract (Mu’amalat) depicts a set of rules of Islamic jurisprudence relating to matters of mutual dealing between people particularly in the field of economy and personal status.[7]
The electronic agent is a similitude of the human agent acting pursuant to the instructions given to it by the principal. This treatise x-rays agency, it legality in the light of Qur’an, its nature, reasons for its requirements, before moving proper to the thematic question ” Does Islamic Law of contract recognized agency”?
WHAT IS AGENCY
Agency in the Arabic word means ‘wakalah’. It is the appointment of a person called wakil (agent) to represent the other called muwakil (principal) in certain well-known contract which belongs to the principal and which is susceptible to representation. [8]Also, it depicts assigning a task to another person to act on one’s behalf. [9]
NATURE OF AGENCY
1 it is generally a nonbinding contract, which means that either of the parties can mutually opt out of the relationship anytime by mutual agreement. However, majority of the jurists hold that wakalah will be binding if there is compensation for the task.[10]
2. The principal takes liability for the actions of the agent[11]
ITS LEGALITY IN THE LENS OF THE QURA’N
The Qur’an has categorically mentioned the word agent in several verses.
Below are some of the verses where the word agent or agency is used.
Qur’an 18:19 where Allah (SWT) says:
“.... So send one of you with this silver coin of yours to the town, and let
Him find out which is the good lawful food, and bring some of that to you.
And let him be careful and let no man know of you”. [12]
Qur’an 4:35 where Allah (SWT) says:
“If you fear a breach between the two, appoint an arbitrator from his
People and an arbitrator from her people. If they both want to set things
right,60 Allah will bring about reconciliation between them. Allah knows
all, is well aware of everything.” [13]
Qur’an 9:60 where Allah (SWT) says:
“Zakāh expenditures are only for the poor and for the needy and for those employed for it1 and for bringing hearts together [for Islam] and for freeing captives [or slaves] and for those in debt and for the cause of Allah and for the [stranded] traveler – an obligation [imposed] by Allah. And Allah is Knowing and Wise.” [14]
Qur’an 6:66 where Allah (SWT) says:
“But your people reject this, though it’s the truth. Say; Not mine is the
responsibility for arranging your affairs”.[15]
REASONS FOR ITS REQUIREMENT
An agent (wakala) is required for the following reasons
1. The principal may not have the time to perform the act himself
2. He may not also have the knowledge, insight or expertise to perform
the transaction himself.
DOES ISLAMIC LAW OF CONTRACT RECOGNIZED ELECTRONIC AGENCY?
The idea of treating Electronic agent as agents can be very stringent because there is intense debate among Muslim jurists as regards the capability of agents. The majority of Muslim jurist placed much emphasis on the capacity of agent to an extent that they are of the view that sane individual are not capable to serve as agent under the Islamic Law. However, the principle of an agent under common Law opines that he must only possess a minimum capacity. The proposition of Islamic Law is not accepting agents as opened to sound minded people indicates the difficulty in accepting electronic agents as agent under the Islamic Law.
Without any doubt, the enterprise of granting electronic agency capacity to act as agent is indeed, a complete one. Reason being that, if sounds minds are disallowed to act as agent under Islamic Law, it posed the question as to “Whether Muslim jurist treat computer program as agent”? A difficult issue that arises in this present discussion is that Islamic Law requires agents to be wise, be an adult, and therefore electronic agent lacks this capability. Consequent upon the above assertion, electronic agent lacks the capacity to act as an agent in Islamic Law of Contract, a justification for this will be done in the next segment of discussion.
ISLAMIC LAW OF CONTRACT DOES NOT RECOGNIZE ELECTRONIC AGENCY.
It is a very clear position of Islamic Law that agents need to possess some straits such as being wise and adult, to avail them the capacity of being an agent and equally act on behalf of the principal.[16] Alayli(A professor at King Saudi University) in a granted interview argued that during the period of the prophet Muhammad,the wise and adult are only regarded as being capable to serve as agent.Infants and sound minded individuals are not permitted to serve as agent, because Muslim jurists believe that they don’t have the competence to perform actions got others and being prohibited to act as agent.
Along the same lines, a person that lacks sound judgment is prohibited to be an agent, because logically, he won’t be able to carry functions for others. In another view, he is of the opinion that, it not an objective of Islamic Law that, it is a must for an agent to be wise and of adult age, as the conditions set out by traditional Islamic jurist all in a bid to carry out their duties.So,if it is clear now that electronic agents are sophisticated enough to act as agent, and have the ability to act on behalf of someone’s else, then this computer software need not in order to act as an agent, being wise and adult as it comprehended in the traditional perspective.
[17]In the same breadth, Shyrfat opines that: “The main role of electronic agents on the internet is not merely to transfer and deliver the words or intention of one person to another. It is a fact now that these automated agents can independently to create contracts on behalf of the operators. They do not only deliver what would have been told by operators, rather they use their own characteristics such as autonomy to complete transactions. This way of operating makes it pointless to ask for electronic agents to be wise , and being an adult in order to be treated as what electronic agents can do now for their operators is sometimes better than what a wise and adult can do for his principal.[18]
In addendum, the conditions for agent to be wise and possess adult age are not stated in the glorious Qur’an nor in the Sunnah of the prophet. But, they are the only traditional Muslim jurists that do not possess any divine sources.[19]
Nonetheless, the humanity of agent serves as another obstacle that disallows electronic agent to act as agent, simply because it is a fundamental principle in Islamic Law that the capacity to act is solely meant for human being. Islamic Law is essentially a religious Law, the capacity to act is conferred on human being alone who in the Islamic creed is deemed as a creation with a mission; a representative on earth.[20][21]
Without any scintilla of equivocation, capacity to act as an agent in Islamic Law is very ethical and cannot be bestowed to nonliving things/nonhuman being. Therefore, irrespective of the greatness, sophisticated, and complicates nature of electronic agents, they shall be regarded as nothing, but mere computer program. In a nutshell, electronic agents are not mankind; they cannot possess the capacity of agent under the Islamic Law.
CONCLUSION.
As Electronic agent is also like the human agents acting on the instructions given to it by the principal, the classical jurist are of the view that it lacks the ahliyyah(legal capacity) to permeate or enter into any agent relationship. Albeit, the contemporary Muslim jurists concur with the view of the classical jurist, but consequent upon the emergence of technology, the contemporary Muslim jurists agree and validate an electronic agent. They opine that electronic agent is legal and if there is a breach of the agency relationship, the liability is moved to the operators.However,this treatise is of the vivid view that Electronic agent is illegal in Islamic Law.
ABOUT THE AUTHOR.
AbdulGaniy Adisa Jimoh is Penultimate Law Student at Faculty of Law, Bayero University, Kano, an award winning writer, educator, and a Legal researcher. He can be reached via the following social media handles:
WhatsApp:08090666588
G-mail:jimohadisa546@gmail.com
Linkedin:Www.linkedin.com/mwlite/in/jimohabdulganiy-adisa-100121212
[1] Mo’qbel,T.(2001) Alwakalah in Islamic jurisprudence,Beirut:Dar Alkotob Alelmiah p.22(in Arabic)
[2]<https://sunnah.com/search?q=%D9%85%D9%8E%D9%86%D9%92+%D9%8A%D9%8F%D8%B1%D9%90%D8%AF%D9%90+%D8%A7%D9%84%D9%84%D9%91%D9%8E%D9%87%D9%8F+%D8%A8%D9%90%D9%87%D9%90+%D8%AE%D9%8E%D9%8A%D9%92%D8%B1%D9%8B%D8%A7+%D9%8A%D9%8F%D9%81%D9%8E%D9%82%D9%91%D9%90%D9%87%D9%92%D9%87%D9%8F+%D9%81%D9%90%D9%8A+%D8%A7%D9%84%D8%AF%D9%91%D9%90%D9%8A%D9%86%D9%90> accessed,3rd January ,2024.
[3] <https://theconversation.com/what-is-sharia-islamic-law-shows-muslims-how-to-live-and-can-be-a-force-for-progress-as-well-as-tool-of-fundamentalists-155112> accessed on 3rd of January, 2024.
[4] ibid
[5]Walid Mohammed Almajid: The Legal Enforceability of Contracts made by do. Electronic Agents under Islamic Law; A critical Analysis of the Effectiveness of Legal Reform in Saudi Arabia.
[6] Mallam Omar Hussein: Lecture on MU’AMALAT (II)
[7]Mansur Isa Yelwa,Usman Muhammad Shuaib (Zunnurain): Ayat Wa Ahadith Al-Ahkam Textual Exploration and Contextual Analysis of Legal Issues
[8] ibid
[9] Al-Ma’aniy (Arabic Dictionary)
[10]ibid
[11] ibid
[12] <https://www.islamawakened.com/quran/18/19/> accessed on 4th, January,2023.
[13]ibid
[14] ibid
[15] ibid
[16] Mo’qbel,T.(2001)Alwakalah in Islamic jurisprudence,Beirut:Dar Alkotop Alelmiah p.22(in Arabic)
[17]ibid
[18] Shyrfat M(2006) At-taqed abra Internet,Beirut:Dar a’lya Altrath Alarby,p.65(in Arabic)
[19] ibid
[20] bid
[21] bid
