Wakala is a structure that utilizes the idea
of principal and agent theory. The principal provides the capital, and the
agent gets hired to provide expertise and labor. Under a wakala, the capital
provider receives the profits from the venture, less an agreed-upon fee that
goes to pay the agent. Bank deposits can also be structured as a wakala.[1]
The word “Wakala” literally has several
meanings including, delegation, authorization, preservation and performing a
task on behalf of others. Technically Wakala refers to a type of contract in
which one person delegated another person to perform some tasks on behalf of
him.[2]
Wakala has essential element as a matter of contract, these are the principal (muwakkil),
the agent (wakil) and the subject matter (muwakkal bihi). These
three elements must be concurred for its validity.[3]
According to Imaam al Shawkhani, “It is
permissible for an owner to give authority to someone else to act his behalf in
respect of every dealings in as much as there is nothing that could legally
prevent such, If an agent sells beyond the amount specified by the owner, the
excess money goes to the owner, and if the he acts contrary to the owner’s
specification for a better achievement or he like, and the owner is pleased
with it, then the transaction becomes valid.”[4]
One of the legal basis from Qur’an often
cited on the principle of wakala is the verse found in Surah al Baqara,
when Allah said:
وَإِذ قالَ رَبُّكَ لِلمَلائِكَةِ إِنّي جاعِلٌ
فِي الأَرضِ خَليفَةً
ۖ قالوا أَتَجعَلُ فيها مَن يُفسِدُ فيها وَيَسفِكُ الدِّماءَ وَنَحنُ نُسَبِّحُ بِحَمدِكَ
وَنُقَدِّسُ لَكَ ۖ قالَ إِنّي أَعلَمُ ما لا تَعلَم
When your Lord
said to the angels, ‘Indeed I am going to set a vicegerent on the earth,
’they said, ‘Will You set in it someone who will cause
corruption in it, and shed blood, while
we celebrate Your praise and proclaim Your sanctity? He said, ‘Indeed I know what you do not know.’[5]
However, it has to be noted that according to
Muslims scholars, the mentioned verse was mainly referring to the authority
which Allah has bestowed upon man on earth, such as leadership or political
leadership, and as spiritual torch bearer in the Muslim community. A khalifa or
viceregent as contemplated from this legislation also in the purview of leading
a small unit, such as but not limited to a family, firm, organization, platoons
of military armies, or any other institution that requires management and
leadership.
In relation to the discussion on wakala as far as Islamic commercial transactions are concerned, Wakala in modern sense could be linked to the Remittances. According to the basic definition, "a remittance means "send back." In terms of money, a remittance is the sending of money to a recipient who lives abroad. Most families living in slow-growing economies and developing nations rely heavily on these remittances as their main source of income, (anonymous, ccto)".
Accordingly, the three essential elements of
Wakala as mentioned above, Muwakkil is the principal or sender, wakil
as the agent, while muwakkil bihe is the subject matter, or the money to
be sent. Thus, in remittances, muwakkil is the sender of money from
abroad, and wakil is the remittance center, or a bank who facilitates
the transferee, while the money is the muwakkil bihe, or the
object of the transaction. Thereafter, every successful transaction of
remittances was accompanied by a written contract. The receipt issued by the wakil
or agent serves as evidence of a perfected contract between the wakil or
agent and the muwakkil or principal-sender.
Based on this transaction, the agent or wakil
was entrusted by the muwakkil of his property (money transfer), as such it
contemplates the notion of Wakala. Hence, under Islamic commercial transaction,
the wakala or remittances is permissible, provided that when the agent do not
transgress to the limit as to the authority given to him by the principal,
(i.e.) that the agent do not misappropriate the fund entrusted to him to be
remitted.
Another Qur’anic legislation that regulates
Islamic commercial transaction was found in Surah al Baqara, when Allah said:
يا أَيُّهَا الَّذينَ آمَنوا إِذا تَدايَنتُم بِدَينٍ إِلىٰ أَجَلٍ مُسَمًّى
فَاكتُبوهُ ۚ وَليَكتُب بَينَكُم كاتِبٌ بِالعَدلِ ۚ وَلا يَأبَ كاتِبٌ أَن يَكتُبَ
كَما عَلَّمَهُ اللَّهُ ۚ فَليَكتُب وَليُملِلِ الَّذي عَلَيهِ الحَقُّ وَليَتَّقِ
اللَّهَ رَبَّهُ وَلا يَبخَس مِنهُ شَيئًا ۚ فَإِن كانَ الَّذي عَلَيهِ الحَقُّ سَفيهًا
أَو ضَعيفًا أَو لا يَستَطيعُ أَن يُمِلَّ هُوَ فَليُملِل وَلِيُّهُ بِالعَدلِ
O you who
have believed, when you contract a debt for a specified term, write it down.
And let a scribe write (it) between you in justice. Let no scribe refuse to
write as Allah has taught him. So let him write and let the one who has the obligation
dictate. And let him fear Allah, his Lord, and not leave anything out of it.
But if the one who has the obligation is of limited understanding or weak or
unable to dictate himself, then let his guardian dictate in justice.[6]
This verse highlighted the general procedure
on how a credit should be regulated, and the fundamental requisites. Thus, an oral
agreement is something not recommended under this ruling, instead, a written
agreement is preferred. One of the reasons could be that a man in character is
scatterbrained, and upon writing, such is to become conclusive evidence.
To be valid, credit transaction must contain
the following: (1), that there is specified credit (2), such must be in writing
(3), in a just (4), if one of the parties is illiterate, weak of understating,
be represented by his guardian with just (5), and that there should be
witnessed by at least two men, or two women and one man. It must be noted that
the required witness for this kind of transaction is two men of just, or two
women together with one man all of them be of just.[7]
Conclusion
Wakala, this principle
falls within the second division of Islamic aspects called Muammalat. It
is referring to the relationship between man and his fellow in relation to the
formulation of human society and their community; such relationship is governed
by Shari’ah as to the civil aspects of the law.
As defined above, Wakala
regulates the business transaction between the principal and his duly
authorized representative. When the principal authorized other in his behalf,
it is viewed that whatever may be the action taken by the delegate, is the same
as it was executed by the principal by himself, and by his owned utterances and
act, provided, however, that agent do not step up wholly in the shoe of the
principal without his consent.
In other words, although
Wakala is permitted, it not absolute. The act of the agent to be valid must be confined
to the authorized acts purported to be, otherwise, that act could be
challenged. Also, the agent under this principle would not only be limited as
to the specific action that he may exercise, but it should be in accordance
with the essential requisites mentioned in the Qur’anic regulation.
[2] Dr. Kheiralla Sirour, The Rules of Wakala Contract
(agency) in Sharia law and its application in Islamic Finance A Comparative
study, 2015
[3] Ibid
[4] Ash-Shawkhani, Comprehensive Islamic Jurisprudence, Dakwah
Corner Bookstore, Malaysia, 1173-1255H, p., 593
[5] Al Qur’an, 2:30
[6] Al Qur’an, 2:282
[7] Ibid, 2015
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