An agent cannot
be appointed
to
manage a fuit
unlefs the
conftituent be
Jick> or abfent,
feftion, it is not to be admitted againft his conftituent, becaufe there
exifts a doubt of his having been authorifed by his conftituent to make
fuch confeffion.
I t is not lawful, according to Haneefa, to appoint an agent for
the management of a caufe, unlefs with the confent of the adverfary;
excepting where the conftituent is fick,— or diftant three days journey,
or further, from the place.— T h e two difciples maintain that fuch
agency is lawful without the confent of the adverfary ; and Shafei is
alfo of the fame opinion. This difagreement does not relate to the
legality of the agency itfelf, but to the neceffity which operates upon
the adverfary to anfwer to an agent to whofe appointment he has not
aflented; Aboo Haneefa being of opinion that he is not under fuch neceffity;
and the two difciples thinking other wife.— T h e argument of
the two difciples is that the appointment o f an agent is the aft of an
individual in regard to a right purely his own; and therefore ought not
to depend on the confent of another in the prefent inftance, any more
than in a cafe of exacting payment of debt.— Haneefa, on the other
hand, argues that the conftituent is himfelf under the neceffity of
giving an anfwer, and muft attend in cafe the magiftrate ffiould fum-
mon him: now individuals differ with refpedt to their capacity of
managing fuits;— if, therefore, it were admitted that the appointment
of an agent is abfolute with refpedt to the adverfary, this would
be injurious to the adverfary;— hence the validity o f the appointment
muft be fufpended on his confent:— in the fame manner as where a
partnerffiip Have is made a Mokdtib by one of the partners, in which
cafe it remains with the other partner to confirm the contract of K i-
tdbit, or to break it as he pleafes; for, although the a£t of the firft
proprietor related purely to his own property, yet as the carrying of it
into execution muft have injured the right of the other, the validity
o f it is therefore fufpended on his confent; and fo alfo in the cafe in
queftion.— It is otherwife where the perfon is f c k or abfent, for in
this cafe his appointment of an agent is Valid without the confent of
the
the adverfary, fince he cannot himfelf be compelled to appear under
fuch circumftances.— It is to be obferved that in the fame manner as
Haneefa holds the appointment, in this particular, of an agent by an
abfent perfon to be valid, fo alfo does he hold the appointment by one
who is immediately about to travel.
A w o m a n who remains in privacy, and is not accuftomed to go
to the court of the Kds.ee, ought (according to Aboo Bekir) to appoint
an ao-ent for the management of her caufe; and acquiefcence is incumbent
on her adverfary.— This doctrine has been adopted by our
modern lawyers; and decrees are palled accordingly..
T h e validity of agency, in any bufinefs,. refts upon two conditions
:— f i r s t , that the conftituent be himfelf legally empowered to
perform the bufinefs for the execution of which he has appointed another
: (for, as the agent derives his competency from the conftituent;
it is neceflary that the conftituent ffiould himfelf be competent, before
he confer the capacity on another;).— s e c o n d l y , that the agent be of
found underftanding, in. fuch a- degree as may enable him to know
and execute the bufinefs to which he has been appointed.— If, therefore,
a perfon appoint a child or an idiot his agent, it is invalid;
whereas, if a freeman, who is adult and of found judgment, appoint
his fellow * his agent,— or, i f a privileged flave appoint his fellow his
agent,— it is valid..
If a perfon appoint an infant who underftands purchafe and fale, or
a Mahjoor (or inhibited) flave, to be his agent, it is in either cafe valid.
T h e rights of the contrail, however, do not appertain to them but to
their conftituent.— T h e reafon of the validity of the appointment is that
the infant is capable of explanation ; and therefore his aft is held to be
valid, when, done with the permiffion of his guardian;— and the fa v s
or about t§
travel.
A woman
may appoint’
an agent for
litigation in
all cafes.
Agency, to be
valid, muft
proceed from
a competent
conftituent;
and muft be
veiled in a
perfon o f underftanding.
A Mahjoor
flave, or an
infant (capable
o f underftanding)*
may be appointed
an.
agent ;.
* Meaning,, one who refembles him in thofe points.
IS