skills/sistani-guidance/references/books/hajj/pages-025-036.md

# Hajj Rituals

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## PDF PAGE 25

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the starting point, it is sufficient to appoint an agent from
the Meqat, unless there was an expressed that the agent
be appointed from his town, for example, by designating a
sum for pilgrimage which would adequate as a fee for the
agent from the town.
Rule 84: If a person directs in his will that, in the event of
his death, the agent, who is going to perform pilgrimage
for him, be appointed from his town, and if the executor
or heir appointed one from the Meqat, the appointment is
invalid; This is so only if the remuneration be paid from
the estate of the deceased. However, the obligation of the
deceased will be discharged by the performance of the
agent.
Rule 85: If the will of the deceased stipulates that an agent
be appointed to perform pilgrimage from another town or
country, it is obligatory to act on it and the expenses in
excess of what would have been paid to an agent
appointed from the Meqat will be met from the
bequeathable one-third of the estate.
Rule 86: If the will of the deceased stipulates that an agent
be appointed to perform an obligatory pilgrimage on his
behalf for a given wage, it is obligatory to act upon it. The
remuneration should be paid from the gross estate, if it
does not exceed what is commonly held as acceptable.
However, if it does, the excess must be settled from the
one-third bequeathable portion.
Rule 87: If the will of the deceased stipulates that
pilgrimage be performed on his behalf from an identified
property, and it is in the knowledge of the executor that
there is a liability of khums or zakah on the property, these
must first be paid from it. The balance should then be used
to meet the expenses of pilgrimage; if it is not sufficient,
the shortfall must be met from the gross estate, should the
obligation of the deceased be for Hajjatul Islam, otherwise
the balance must be spent in good causes of the kind in
which the deceased would have wished to donate.
Rule 88: If it becomes obligatory to appoint an agent to
perform pilgrimage on behalf of a deceased, with or
without a will, and the person charged with executing the
obligation delays the appointment of the agent, so much
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26
so that the property, from which the expenses would have
been paid, was damaged, he is personally responsible to
employ an agent from his personal property.
Rule 89: If it was known that pilgrimage had become
obligatory on the deceased, but it is doubtful if he had
performed it, it is obligatory to have it performed for him
and its expenses be met from the gross estate.
Rule 90: The obligation of the deceased would not be
discharged by the mere appointment of an agent to
perform a pilgrimage on his behalf. If it becomes known
that the agent did not perform the pilgrimage for a good
reason or not, it is obligatory to appoint another agent
and meet the expenses from the gross estate. If it was, at
all, possible to recover the sum from the first agent, it is
obligatory to do so, in the event that the money was paid
from the estate of the deceased.
Rule 91: If there were numerous agents available, the one
who should be chosen must be on the basis of the
deceased stature. Accordingly, it is permissible to pay a
higher remuneration. Evidently, that is so, even though
the wage will be paid from the third allotted to the
deceased, and that there was a minor among the heirs,
who did not agree to that.However, hiring an agent could
prove problematic (mushkil), if it encroaches upon
discharging other financial obligations the deceased
stipulated in his will to be met, such as debt and zakah.
Rule 92: Whether the appointment of the agent is
obligatory from the country of the deceased or Meqat is
determined by the `mujtahid' followed by the heir or the
heir's `ijtihad' and not that of the deceased. If the faith of
the deceased was that it was obligatory to appoint an
agent from his country, and that of the heir is that it is
permissible to appoint one from the Meqat, it is not
obligatory on the heir to appoint one from the country of
the deceased.
Rule 93: If the pilgrimage had become obligatory on a
deceased person who does not leave any estate, it is not
obligatory on the heir to appoint an agent; however, it is
meritorious, especially for his relatives, to do so.
Rule 94: If the will of the deceased stipulates that an
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obligatory pilgrimage be performed on his behalf, and it
becomes known that it was Hajjatul Islam, the expenses
incurred must be paid from the gross estate, unless he has
expressly directed that the expenses be settled from his
bequeathable one-third. If it becomes known to the
person so directed that pilgrimage was other than Hajjatul
Islam, or if there is doubt, the expenses must be paid from
the one-third.
Rule 95: If the will of the deceased stipulates that an
obligatory pilgrimage be performed on his behalf by a
particular person, it is obligatory to comply with the
instruction. If the nominated person does not accept the
appointment except for a higher than the usual
remuneration, the excess must be paid from the one-third
portion of the estate, if the pilgrimage was Hajjatul Islam.
Rule 96: If the will stipulates that pilgrimage be performed
for him for a particular sum to be paid to an agent, and
the designated sum is such that it attracts no one, and if
the obligation of the deceased was for Hajjatul Islam, it is
obligatory to make up the difference from the gross
estate. If it was not for Hajjatul Islam, the sum earmarked
for remuneration must be used for a good cause of the
kind in which the deceased would have wished to donate.
Otherwise, the stipulation lapses and the intended
amount reverts to the estate
Rule 97: If a person sells his house for a sum of money and
makes it conditional on the buyer that he should spend it
in the performance of an obligatory pilgrimage after his
death, upon his death the amount in question will form
part of his estate. If the pilgrimage to be performed was
Hajjatul Islam, the condition becomes operative and it is
obligatory to spend the sum on the remuneration for the
pilgrimage, provided it does not exceed the usual
remuneration. If it does, the deficit will be met from the
one-third of the estate. If pilgrimage was not that of
Hajjatul Islam, the condition will still be sound and the
whole remuneration will be paid from the one-third. If
that share is insufficient, the condition shall no longer be
operative insofar as the shortfall is concerned.
Rule 98: If a person donates, for example, his house to
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another on the condition that he performs a pilgrimage
on his behalf after his death, the condition is valid and
operative. It ceases to be the property of the donor and
will not form part of his estate after his death, even if the
pilgrimage is optional; the testamentary rules will not
apply.The same rule applies to a transaction in which the
owner of the house passes ownership to another so that
after his death the latter can sell the property and spend
the proceeds to have a pilgrimage performed for him. In
such a case, the condition is valid and operative, even if
the pilgrimage is optional; the heirs will have no right in
the property. If the recipient fails to fulfil the condition,
the right in the property does not shift to the heirs, but to
the executor or the Marji', and if he nullifies the
transaction, the property reverts to the estate of the
deceased.
Rule 99: If an executor dies and it is not known whether
he appointed an agent before his death, it is obligatory to
appoint one from the estate if the pilgrimage is Hajjatul
Islam, and from the one-third share, if it is not. If, however,
the executor had taken possession of a property to
expend on the pilgrimage and it is available, it should be
repossessed. If there is a doubt that the executor paid the
agent from his property and then reimbursed himself from
the property of the deceased and such property is not
available, the executor is not responsible as there would
be doubt that it may have been lost without being
negligent.
Rule 100: If the property was lost while in the possession
of the executor without negligence on his part, he shall
not be held responsible to compensate it. An agent must
be appointed from the remainder of the estate if the
pilgrimage is Hajjatul Islam and from the one-third
portion, if not. If the remainder had already been
distributed among the heirs, a sum sufficient for the
remuneration of the agent should be recovered from them
proportionately.The same rule applies if a person is
appointed an agent and dies before performing
pilgrimage without leaving any estate, or if it is not
possible to recover it from his estate.
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Rule 101: If the property is lost in the hands of the
executor before the appointment of an agent and it is not
known if it was lost due to the negligence of the executor,
it is not permissible to exact compensation from the
executor.
Rule 102: If the will stipulates that a certain amount be
spent on a pilgrimage other than Hajjatul Islam and there
is doubt that it is in excess of the bequeathable one-third,
it is not permissible to spend the whole of the amount
without the consent of the heirs.
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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
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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
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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
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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
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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
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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 changed Hajj-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
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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.
```