Summary of Ayatollah Makarem Shirazi’s Jurisprudential Class – Hajj as a Will 2

Ayatollah Makarem Shirazi

The discussion will be about the second ruling of the issues relating to hajj as a will. Imam Khomeini (r) states in Tahrir:

مسألة 2 – يكفي الميقاتي سواء كان الموصى به واجبا أو مندوبا ، لكن الأول من الأصل والثاني من الثلث ، ولو أوصى بالبلدية فالزائد على أجرة الميقاتية من الثلث في الأول وتمامها (هزینه) منه (از ثلث) في الثاني.

The first section is that if one general stipulates a hajj in his will and does not specifically mentioned where the hajj should start from then one can start it from the miqat. It would not be necessary for start the hajj from the hometown of the deceased. This counts for both obligatory and recommended hajjs. The only thing is that the price for the obligatory hajj would be taken from the total estate and the price for the recommended hajj would be taken from the third of the estate.

The second section is if the deceased stipulates in his will that the hajj must be performed from his hometown; in an obligatory hajj it is only obligatory to start it from the miqat and therefore whatever price is in addition to what that would cost (from his hometown to the miqat) would be taken from the third of the estate. If it was a recommended hajj the whole price would be taken from the third of the estate.

This ruling was mentioned before by Imam Khomeini in the discussion of hajj istita’ati, issue number 58. There he stated:

و لو اوصی و لم یعین شیئا (میقاتی باشد یا بلدی) کفت المیقاتیة الا  اذا کان هناک انصراف الی البلدیة (کما اینکه در زمان ما چنین است) او قامت قرینة علی ارادتها (ای ارادة بدلیة مثلا پولی را که تعیین می کند مبلغش سه میلیون است و اگر از میقاتی باشد هزینه ی آن حدود یک میلیون می بود) کفت المیقاتیة فحینئذ (که گفته بلدی بجا آورده شود) تکون الزیادة علی المیقاتیة من الثلث.

He continued to state:

لو اوصی بالبلدی یجب و یحسب الزائد علی اجرة المیقاتیة من الثلث.

Imam Khomeini might have repeated this issue because in this ruling both recommended and obligatory hajjs are mentioned.

Viewpoints of the scholars:

‘Allamah states in Mukhtalif, v.4, p.369:

لو أوصى بالحج أخرج عنه من أقرب الأماكن إلى الميقات اختاره الشیخ فی المبسوط و صرح ابن ادریس بلزوم الحج من الموضوع الذی مات فیه من بلده و هو الذی ورد فی روایات اصحابنا

The author of Hada’iq states, v.14, p.176:

لا خلاف بین الاصحاب فی انه اذا استقر الحج فی ذمته ثم مات یقضی من اصل الترکة انما الخلاف فی المکان الذی یجب الاستیجار منه و المتداول فی کتب اکثر الاصحاب ان الخلاف هنا منحصر فی قولین احدها انه من اقرب الاماکن الی مکة و هو الذی علیه الاکثر و ثانیهما انه من بلده.

Then he added that the understanding of Muhaqiq’s phrase in Sharaya’ in which there is a third opinion is that if the person’s money is sufficient to perform the hajj from his hometown then he must and if it is not then he must perform it from the miqat.

A summary of the views is:

1. Majority – Hajj starts from the miqat

2. Minority – Hajj starts from the hometown

3. Details that the author of Hada’iq mentioned

4. The place of death does not mean the hometown and does not mean the miqat

Proofs of the ruling:

Principles: The principle here states that hajj starts from the miqat. Therefore, the distance between the hometown and the miqat is a preliminary and not obligatory.

‘Allamah mentions some nice examples of this in Mukhtalaf: if a person does not intend on performing hajj and when he reaches the miqat he sees that it is the time of hajj and he must perform an obligatory hajj. Therefore, he decides there to perform hajj. His hajj is definitely correct and suffices for his hajj al-Islam.

Likewise, if a person leaves his hometown for somewhere else on business and the time of hajj approaches. He decides to perform the hajj from the second location that he is in even though it is not his hometown. Again, his hajj al-Islam would be correct.

In short, the pillars of hajj start from the miqat and all of the other actions, for instance, leaving from one’s hometown are preliminaries. Now, since the ruling is this way for the person himself it would be the same for his representative.

This is the ruling that we would come to without looking at the traditions.

Traditions:

There are a few groups of traditions in this section. The first group is in opposition to the viewpoint of the majority (that hajj must be performed from the hometown).

The second section of the chapters on representation:

ح 1: مُحَمَّدُ بْنُ الْحَسَنِ بِإِسْنَادِهِ عَنْ مُوسَى بْنِ الْقَاسِمِ عَنِ الْحَسَنِ بْنِ مَحْبُوبٍ عَنْ عَلِيِّ بْنِ رِئَابٍ قَالَ سَأَلْتُ أَبَا عَبْدِ اللَّهِ ع عَنْ رَجُلٍ أَوْصَى أَنْ يُحَجَّ عَنْهُ حَجَّةَ الْإِسْلَامِ وَ لَمْ يَبْلُغْ جَمِيعُ مَا تَرَكَ إِلَّا خَمْسِينَ دِرْهَماً قَالَ يُحَجُّ عَنْهُ مِنْ بَعْضِ الْمَوَاقِيتِ الَّتِي وَقَّتَهَا رَسُولُ اللَّهِ ص مِنْ قُرْبٍ.

The chain of narration of this tradition is correct.

The understanding of this tradition is that if he has enough money they he must perform hajj from his hometown. In other words, the person asking the question knows that if he has enough money he must perform it from his hometown and the Imam did not negate this. The fact that the Imam did not negate this proves that one should only perform the hajj from the miqat in this situation, or else, if he has enough money they he must perform it from his hometown.

ح 2: عَنْ مُحَمَّدٍ وَ أَحْمَدَ ابْنَيِ الْحَسَنِ عَنْ أَبِيهِمَا عَنْ‏ عَبْدِ اللَّهِ بْنِ بُكَيْرٍ عَنْ أَبِي عَبْدِ اللَّهِ ع أَنَّهُ سُئِلَ عَنْ رَجُلٍ أَوْصَى بِمَالِهِ فِي الْحَجِّ فَكَانَ لَا يَبْلُغُ مَا يُحَجُّ بِهِ مِنْ بِلَادِهِ قَالَ فَيُعْطَى فِي الْمَوْضِعِ الَّذِي يُحَجُّ بِهِ عَنْهُ

The questioner thought that he must perform hajj from his hometown and the Imam stated that he must start it from wherever his money would allow and that it is not necessary to perform more than that.

ح 3: مُحَمَّدُ بْنُ يَعْقُوبَ عَنْ عِدَّةٍ مِنْ أَصْحَابِنَا عَنْ أَحْمَدَ بْنِ مُحَمَّدٍ عَنْ أَحْمَدَ بْنِ مُحَمَّدِ بْنِ أَبِي نَصْرٍ عَنْ مُحَمَّدِ بْنِ عَبْدِ اللَّهِ قَالَ سَأَلْتُ أَبَا الْحَسَنِ الرِّضَا ع عَنِ الرَّجُلِ يَمُوتُ فَيُوصِي بِالْحَجِّ مِنْ أَيْنَ يُحَجُّ عَنْهُ قَالَ عَلَى قَدْرِ مَالِهِ إِنْ وَسِعَهُ مَالُهُ فَمِنْ مَنْزِلِهِ وَ إِنْ لَمْ يَسَعْهُ مَالُهُ فَمِنَ الْكُوفَةِ فَإِنْ لَمْ يَسَعْهُ مِنَ الْكُوفَةِ فَمِنَ الْمَدِينَةِ.

The denotation of this tradition is also clear. The Imam clearly states that if he has enough money he must perform the hajj from his hometown.

ح 7: عَنْ أَبِي عَلِيٍّ الْأَشْعَرِيِّ عَنْ أَحْمَدَ بْنِ مُحَمَّدٍ عَنْ مُحَسِّنِ بْنِ أَحْمَدَ عَنْ أَبَانٍ عَنْ عُمَرَ بْنِ يَزِيدَ قَالَ قُلْتُ لِأَبِي عَبْدِ اللَّهِ ع رَجُلٌ أُوصِيَ بِحَجَّةٍ فَلَمْ تَكْفِهِ قَالَ فَيُقَدِّمُهَا حَتَّى يُحَجَّ دُونَ الْوَقْتِ (وقت به معنای میقات است)

All of these traditions are the first group of traditions which are in opposition to the majority opinion. We must read the other group of traditions and then come to a conclusion.

Summary of Ayatollah Makarem Shirazi’s Jurisprudential Class – Hajj as a Will 1

Ayatollah Makarem Shirazi

In the name of Allah, the Compassionate, the Merciful

Hajj as a will

The discussion was about the first ruling in regards to hajj being in a will. We reached the fourth section which. Here the deceased willed for a hajj to be performed on his behalf and we do not know whether this hajj is obligatory, taken from the total estate, or whether it is a recommended hajj, taken from the third of the estate.

This issue has not been mentioned much and the author of ‘Arwah is one of the people who discussed the issue in detail.

This section has three cases:

First case: we state that this means that it is an obligatory hajj meaning that the hajj that the deceased willed was an obligatory hajj and the price of it must be taken from the total estate.

The author of ‘Awrah and others believe that a person who lives far away from Mecca usually does not will a recommended hajj. If the majority of the time when one makes a will and when they mention hajj they mean an obligatory hajj then we could use that as a proof for the hajj being obligatory. The will of such people would mean an obligatory hajj.

Muhaqiq Thani criticizes this understanding while commentating on ‘Arwah. He states: “Sometimes people make a will for a precautionary hajj meaning that they performed their hajj, but per precaution, they make a will for another hajj to be performed on their behalf (of course they did not state that this was a precautionary hajj or else it would be outside of the scope of the discussion). This case is not something abnormal and that is why we cannot consider that the hajj definitely means an obligatory hajj.

His words bring about certainty and take away the notion that this hajj definitely points to an obligatory hajj.

Second case: This is when the hajj has a previous state meaning that at one time during his lifetime we know that hajj became obligatory on him and he did not perform it, but we doubt if he performed it later on or not.

Point: This istishab concerns a doubt about the subject, not the ruling because the principle of this ruling that if the hajj is obligatory the price of it is taken from the total estate and if the hajj is recommended the price of it is taken from the third of the estate. But, we doubt about the subject – whether the hajj that the deceased has to perform is obligatory or recommended.

There are two problems in this istishab:

One: in istishab the doubt of the person making the will is a condition not the person carrying out the will. We do not know whether the person who made the will had a doubt for us to use istishab or not because the action is in regards to the person who made the will – therefore we cannot implement istishab.

Answer: It is clear that the doubt is about the duty of the person carrying out the will not the duty of the person who made the will because the doubt is about whether or not the person carrying out the will has to take the price of this hajj from the total estate or from the third of the estate. The person who made the will passed away and does not have any duty.

Two: The principle of considering the actions of a Muslim as correct precedes istishab meaning that one does not know if the deceased sinned and did not perform his hajj. In this case we must consider his action to be correct and say that he was a believer and insha’Allah he performed his hajj not sinning.

In other words, if we do not consider the actions of a Muslim correct and we implement istishab we will be faced with a problem because after the death of any Muslim we doubt whether he paid his religious taxes or not and we doubt whether or not he paid his debts.

It must be observed that considering a Muslim’s actions as correct is not only in matters of his actions meaning that the principle is not only implemented when a Muslim performs an action, rather it is in regards to his duties. For instance, we are invited as someone’s guest and we do not know whether or not he paid his religious dues for us to be able to eat his food. Here, we implement the principle that a Muslim’s actions are considered correct and his food becomes permissible for us to eat.

In addition to this the principle of what is in a Muslim’s hands is his property states that the property that was in his hands at the time of his death was his. This means that religious dues were not mixed in with it. The principle of istishab states that if a time existed that you knew that he did not pay his religious dues than now you can say that he did not pay them, but the mentioned principle precedes istishab.

In short, it does not seem in my view that istishab can be implemented here.

Third case: The hajj does not have a previous state and does not denote obligation per se. Only, the will of the deceased is in our hands and he states that a hajj must be performed on his behalf.

This issue is included in the doubts over a specific instance. This means that we have a universal which is that it is obligatory to act in accordance to the will and we have an exception that recommended actions are taken from the third of the estate. We doubt whether this instance falls under the universal or the specific.

In the principles of jurisprudence it is mentioned that it is not permissible to act in accordance to the universal while in doubt about whether it falls under the specific or not. For instance, if it is stated that we must honor the scholars and that we must not honor the corrupt scholars, then if we doubt whether or not Zayd, who is a scholar, is corrupt or not. In this case we cannot act in accordance to the universal and we cannot act in accordance to the specific. In this case the principle of bara’at is implemented in regards to the obligation of honoring Zayd negating the obligation.

In the case that we are discussing, we must find the amount that is certain and state that the universal principle is: “Whatever a deceased leaves is for his inheritors, except a third.” The amount that is certain is that if the deceased leaves a will it cannot surpass a third of his estate.

Therefore, we state that in the fourth section the price of the hajj must be taken from the third of the estate.

Summary of Ayatollah Makarem Shirazi’s jurisprudential class 87/12/13

Ayatollah Makarem Shirazi

The 17^th Ruling:

يجوز التبرع عن الميت في الحج الواجب مطلقا و المندوب بل يجوز التبرع عنه بالمندوب و إن كان عليه الواجب حتى قبل الاستيجار له و كذا يجوز الاستيجار عنه في المندوب مطلقا و قد مر حكم الحي في الواجب و أما المندوب فيجوز التبرع عنه كما يجوز الاستيجار له حتى إذا كان عليه حج واجب لا يتمكن من أدائه فعلا بل مع تمكنه أيضا فالاستيجار للمندوب قبل أداء الواجب إذا لم يخل بالواجب لا يخلو من قوة كما أن الأقوى صحة التبرع عنه.

The foundation of this ruling is in regards to performing the tabra’a hajj on behalf of a living or deceased person. At the beginning the tabra’a on behalf of a deceased person is mentioned and then on behalf of a living person.

But, the discussion of the tabra’a hajj (of an obligatory hajj) on behalf of a deceased person: All Shia scholars agree that this is permissible, but there are differences amongst the Sunni scholars.

Viewpoints of the Shia scholars:

Muhaqiq Naraqi states in Mustanad, v.11, p.137:

لو حج أحد – عن ميت وجب عليه الحج – تبرعا ، برئت ذمته وصح ، سواء ترك الميت مالا أو لا ، وسواء كان المتبرع وليا أم لا بالاجماع المحقق و المحكي مستفيضا و المستفيضة من الصحاح و غيرها الخالية عن المعارض بالمرة

Shaheed says the same thing in Masalik, v.2, p.177.

Muhadath Bahrani states, v.14, p.287, ruling three:

الظاهر أنه لا خلاف بين الأصحاب ( رضوان الله عليهم ) في أنه لو تبرع انسان بالحج عن غيره بعد موته فإنه يكون مجزئا عنه وتبرأ ذمته به و ظاهرهم انه لا فرق فی ذلک بین ان یخلف المیت ما یحج به عنه ام لا و لا فی المتبرع بین ان یکون ولیا او غیره.

The author of Jawahir states, v.17, p.387:

و لو تبرع إنسان بالحج عن غيره بعد موته برئت ذمته … بلا خلاف أجده في شئ من ذلك بل الاجماع بقسميه عليه بل النصوص مستفيضة أو متواترة فيه من غير فرق في الميت بين أن يكون عنده ما يحج به عنه أم لا ، وبين إيصائه به وعدمه ، وبين قرب المتبرع للميت و عدمه ، و بين وجود المأذون من الميت أو وليه و عدمه كل ذلك لاطلاق النصوص ومعاقد الاجماعات.

Viewpoints of Sunni scholars:

The following is mentioned in Mawsu’ah Kuwaitiyah, v.17, p.75:

اما المیت فیجوز حج الغیر عنه بدون وصیته عند الحنفیة و المالکیة و استثنی الحنفیة اذا حج او احج عن مورثه بغیر اذنه فانه یجزیه و ذهب الشافعیة و الحنابلة الی انه من مات و علیه حج وجب الاحجاج عنه من جمیع ترکته و لو حج عنه اجنبی جاز و ان لم یاذن له الوارث کما یقضی دینه بغیر اذن الوارث.

The conclusion of the opinions is that our scholars do not have any differences of opinions in regards to performing a tabra’a hajj on behalf of a deceased person, but this issue is disputed amongst Sunni scholars. He has mentioned three of their views:

1. Prohibition – Malikiyah
2. Prohibition, except if the person performing the tabra’a hajj is an inheritor – Hanifiyah
3. Permission – Hanabilah and Shafi’iyah

Proofs of the issue:

According to principles it must be said that the principle of responsibility would be applied here. This would mean that if there is no proof stating that the tabra’a hajj performed for an obligatory hajj of a deceased person is sufficient for him then the deceased would still be responsible for his obligatory hajj. The tabra’a would not be sufficient.

On the other hand, rational people agree that a third party can pay off someone else’s debt because there is a relationship between the debtor and the person in debt and when the person in debt agrees that a third person can pay off his debt than that could happen and his debt would be relieved.

Now, we must see if hajj is a debt in which this rational principle can be applied to or not.

Other acts of worship (for instance fasting and prayer) cannot be called debts. But, there are many traditions which state that hajj is a debt that Allah has on our shoulders. This is especially seen in the tradition of Khuth’amiyah, which is accepted by both Sunnis and Shias and is in regards to a living person who unable to perform hajj. Here the infallible states:

ان دَيْنَ اللَّهِ فَإِنَّهُ أَحَقُّ بِالْقَضَاءِ.

Summary of Ayatollah Makarem Shirazi’s jurisprudential class 87/12/12

Ayatollah Makarem Shirazi

The discussion was about the 16^th ruling of representation in hajj. Imam Khomeini mentioned this ruling with two sections:

The first section was when one wants to hire someone who does not have enough time to perform the tamatu’ hajj and who must change his intention to the ifrad hajj.

The second section was when one hires someone who has enough time to perform the tamatu’ hajj and then something arises which creates a problem for him and he is forced to change his intention to the ifrad hajj.

The question about the first section whether or not the person that one wants to hire has entered the state of ihram or not. Apparently Imam Khomeini is mentioning the case when the person entered the state of ihram or else changing one’s intentions would not make sense. Now that he has entered the state of ihram, with what intention did he do so? It is clear that he did not enter the state of ihram with the intention of the person who wants to hire him. He either entered it with his own intention or with the intention of someone else. It is clear that such an ihram, one that has been entered with a special intention, cannot be changed. Therefore, the possibility that the person entered the state of ihram is negated (although the meaning of ‘change’ occurs after ihram).

But, the second possibility is that he has not entered the state of ihram and his time became short while he was close to Mecca. He wants to enter the state of ihram and if he does so he would have to quickly head off for Arafat – one wants to hire him in this state. The ruling is that it is impermissible to hire him here because his responsibility is the ifrad hajj and the responsibility of the person who wants to be represented is the tamatu’ hajj (according to this ‘change’ means that the divine ruling in his regard has been changed from tamatu’ to ifrad. Although this is in opposition to the apparent meaning of the text we will accept it in order to correct Imam Khomeini’s words).

One must either find someone else who is able to perform the tamatu’ hajj, for instance a person who is very quick and can perform the tamatu’ umrah and then reach Arafat or wait until next year.

Does the person whose time has become shortened and who has the responsibility of performing a tamatu’ hajj have to wait until next year to perform hajj or can he perform the ifrad hajj being sufficient for his hajj al-Islam? It is clear that such a person has an inability in regards to time and must wait a year to be able to perform his hajj al-Islam.

The second section is a section that has differences of opinions. It is when one hires somebody who has plenty time to perform the tamatu’ hajj and then because of various reasons, illness or whatever, is unable to perform hajj in its appropriate time. When he gets better he is forced to go straight to Arafat after entering the state of ihram. Imam Khomeini first states that the representative must change his intention to an ifrad hajj and then he states that, as per an obligatory precaution, this hajj would not suffice for the person he is representing.

The question arises as to why Imam Khomeini stated that this hajj does not suffice when the ‘change’ is correct. The only thing we could do is state that this precaution is a recommended precaution – but this is in opposition to the apparent meaning of the text. Or, we could say that the change is a change to a mufridah umrah so that he could leave the state of ihram.

But, the second opinion that the author of ‘Awrah accepted is that it is not permissible to change his intention and it is not sufficient for the person being represented. It is clear that if the change of intention is not correct the hajj would not be sufficient.

The third opinion has been given by a number of people who commentated on ‘Arwah, including Muhaqiq Burujerdi and Golpaygani. They state that both the change of intention is correct and the hajj is sufficient.

All of these opinions revolve around the traditions of changing one’s intention. There are 16 traditions in the 21^st chapter of the chapters of categories of hajj in Wasa’il al-Shia. These traditions state that if a person performing the tamatu’ hajj is inflicted and cannot perform it in time he must change his intention to an ifrad hajj.

These traditions must be reviewed to see whether they are only about a person performing hajj for himself or whether they include representatives as well.

In our opinion the third opinion is correct. We have stated that there is a generality mentioned in the traditions of changing intentions. This solves our problem and states that a person who has become a representative has the same rulings in regards to the manners and conditions of hajj as a person who was performing the hajj for himself would have. If there was an exception it must have been mentioned.

The following was not mentioned by Imam Khomeini, but the author of ‘Arwah and its commentators mentioned it. It is in relation to the third opinion which states that changing ones intention is permissible and the hajj is sufficient – but, does the representative deserve the payment or not? There are three opinions here:

1. He does not deserve the payment because he was hired to perform a tamatu’ hajj, but he performed an ifrad hajj. The duty of the person being represented is taken care of but he did not act in accordance to the contract.
2. The full payment must be given when the duty of the represented is taken care of. This is like a person who entered the state of ihram and then died after entering the sanctuary. It was stated that he deserves the full payment.
3. If the contract was in reference to taking care of the represented’s responsibility the full payment must be given, but if it was for a tamatu’ hajj in particular then he does not deserve the payment (he would not even deserve a payment for a similar action). But, in most cases the purpose is taking care of the represented’s responsibility and in this case he would deserve the payment.

Imam Khomeini did not mentioned the issue of payment because, according to his view, the obligatory precaution was that the hajj was not sufficient and therefore there would be no need of payment.

The 16^th ruling is now finished.

All that has been mentioned so far was about hired hajjs. The 17^th ruling and up is about a tabra’a hajj which is when a person performs hajj for someone because of Allah. Sometimes he performs it on behalf of a deceased person and sometimes on behalf of a living person. Sometimes, in either case, it is obligatory and sometimes it is recommended.

Summary of Ayatollah Makarem Shirazi’s jurisprudential class 87/12/11

Ayatollah Makarem Shirazi

The 16^th ruling from Imam Khomeini (r):

لا یجوز استیجار من ضاق وقته عن اتمام الحج تمتعا و کانت وظیفته العدول الی الافراد عمن علیه حج و لو استاجره فی سعة الوقت ثم اتفق الضیق فالاقوی و الاحوط عدم اجزائه عن المنوب عنه

The difference between the first and second sections of this ruling is that the first one is in a place where one wants to hire someone who does not have enough time to perform the tamatu’ hajj and must change to the ifrad hajj. The latter part of the ruling is in a place where one hires someone who has enough time but an obstacle befalls him and his time becomes limited to such an extent that he is forced to change to an ifrad hajj.

The author of ‘Arwah mentions this as the 24^th ruling. The beginning is the same as what Imam writes, but the end has further explanation which points to the reason behind the verdict.

The first section is where one wants to hire a person has limited time and is forced to change his hajj. All of the people who have mentioned this ruling has forbid such a contract and all of the commentators on ‘Arwah have agreed with his forbiddance. This issue has not been mentioned by many. The late Naraqi in Mustanad, v.11, p.134 mentioned this ruling.

The reason behind this issue is that such a person cannot perform what the person being represented needs. It is as if one needs an evening prayer performed on his behalf and we hire someone who has already performed that prayer. The case that we are in is when one needs a tamatu’ hajj performed on his behalf and we want to hire someone who is obliged to change to an ifrad hajj.

Point: change is in matters of intention and is in opposition to the principle. Therefore, we can only permit what has been proven.

Second section is one that is debated. It is where a person hires someone who has enough time to perform the tamatu’ hajj but, because of various reasons, for instance sickness, he was not able to perform hajj at its time. Then, he became well and was forced to go straight to ‘Arafat after entering the state of ‘ihram. Imam Khomeini here states that the representative must change to ifrad and that, as a matter of obligatory precaution, this hajj will not suffice for the person he is representing.

Sayyid states in ‘Arwah:

فهل یجوز العدول و یجزی عن المنوب عنه وجهان… الاقوی عدمه و علی تقدیره فالاقوی عدم اجزائه.

This issue has not been mentioned by many. Many of the commentators of ‘Arwah have agreed that the stronger verdict is that it is permissible to change and that the hajj will suffice for the person being represented.

This issue does not have any specific verses or traditions supporting it. The whole reason behind the issue revolves around the generality of change.

There are 16 traditions that mention the permission to change. These are mentioned in the 21^st chapter of the chapters of the forms of hajj in Wasa’il al-Shia. They state that if a person who intended to perform the tamatu’ hajj became unable to perform it on time he must change to an ifrad hajj.

These traditions must be looked into and it must be determined whether they are for a person who is performing the hajj for himself or if they include a representative as well. If the representative is included then change would be permissible and would suffice for the represented. If change is not permissible his intention would become invalid and he would have to perform a mufradah ‘umrah so he could leave the state of ‘ihram.

The first tradition:

مُحَمَّدُ بْنُ الْحَسَنِ بِإِسْنَادِهِ عَنْ سَعْدِ بْنِ عَبْدِ اللَّهِ عَنِ الْحَسَنِ بْنِ عَلِيِّ بْنِ عَبْدِ اللَّهِ عَنْ عَلِيِّ بْنِ مَهْزِيَارَ عَنْ فَضَالَةَ بْنِ أَيُّوبَ عَنْ رِفَاعَةَ بْنِ مُوسَى عَنْ أَبَانِ بْنِ تَغْلِبَ عَنْ أَبِي عَبْدِ اللَّهِ ع فِي حَدِيثٍ قَالَ أَضْمِرْ فِي نَفْسِكَ الْمُتْعَةَ فَإِنْ أَدْرَكْتَ مُتَمَتِّعاً وَ إِلَّا كُنْتَ حَاجّاً

It was not mentioned in this tradition if the person was a representative or was performing the hajj on his own behalf. Therefore, due to the generality of the tradition, both are included.

The sixth tradition:

عَنِ ابْنِ أَبِي عُمَيْرٍ عَنْ حَمَّادٍ عَنِ الْحَلَبِيِّ قَالَ سَأَلْتُ أَبَا عَبْدِ اللَّهِ ع عَنْ رَجُلٍ ِالْحَجِّ وَ الْعُمْرَةِ جَمِيعاً ثُمَ‏ قَدِمَ مَكَّةَ وَ النَّاسُ بِعَرَفَاتٍ فَخَشِيَ إِنْ هُوَ طَافَ وَ سَعَى بَيْنَ الصَّفَا وَ الْمَرْوَةِ أَنْ يَفُوتَهُ الْمَوْقِفُ قَالَ: يَدَعُ الْعُمْرَةَ فَإِذَا أَتَمَّ حَجَّهُ صَنَعَ كَمَا صَنَعَتْ عَائِشَةُ وَ لَا هَدْيَ عَلَيْهِ.

This tradition, as the one before, includes the representative and the person performing hajj for himself.

The eighth tradition:

عَنْ مُوسَى بْنِ الْقَاسِمِ عَنْ مُحَمَّدِ بْنِ سَهْلٍ عَنْ زَكَرِيَّا بْنِ آدَمَ قَالَ سَأَلْتُ أَبَا الْحَسَنِ ع عَنِ الْمُتَمَتِّعِ إِذَا دَخَلَ يَوْمَ عَرَفَةَ قَالَ لَا مُتْعَةَ لَهُ يَجْعَلُهَا عُمْرَةً مُفْرَدَةً

Summary of Ayatollah Makarem Shirazi’s jurisprudential class 87/11/23

Ayatollah Makarem Shirazi

The sixth section:

The lawyer cannot make a condition on the contract, without the person he is representing’s permission, that the money would be paid upfront. He must first obtain permission from the person he is representing and then he can accept such a condition from the representative. If the carrier out of the will cannot find someone who would be willing to accept the payment after the action then he can accept the condition of payment upfront. Imam states:

و لا يجوز للوكيل اشتراط التعجيل بدون إذن الموكل و للوصي اشتراطه إذا تعذر بغير ذلك

The reason there is a difference between a lawyer and a person carrying out a will is because a lawyer can obtain the permission from the person he is representing but a person carrying out a will is working on behalf of someone who has passed away.

The author of ‘Urwah mentions something here which is opposed by most of the commentators of ‘Urwah. He states that if the person carrying out the will cannot find a representative who would accept to perform the hajj without being paid upfront then he must go and seek the permission of the inheritors.

The reason that scholars opposed this is because the inheritors do not have any right in this issue. In this case the satisfaction of the person who made the will is important and he has passed away.

Then, Imam Khomeini states:

و لا ضمان عليه مع التسليم إذا تعذر.

The reason for this is also clear because if he had permission to accept payment upfront when there is no other choice and the representative did not perform the action correctly he would not be in debt.

The seventh section:

Imam Khomeini states:

و لو لم يقدر الأجير على العمل كان للمستأجر خيار الفسخ

This part has something implied that was mentioned in ‘Urwah:

لو لم یقدر الاجیر علی العمل من دون الاجرة کان للمستاجر خیار الفسخ

This means that if the representative is not able to perform the action without being paid upfront it is not necessary for the person who hired him to pay him, rather he could nullify the contract instead.

In ‘Uwrah the right of nullification is given to the person who hired the representative and the representative. This is not correct in my view.

Now, does the contract become nullified in and of itself or does the person who hired the representative nullify it? The reason for this is that one of the conditions of a rent contract is that the representative must have the ability to perform the action. If the representative cannot perform the action without taking the payment the contract becomes nullified in and of itself. But, the person who hired him can pay him upfront thus enabling him to be able to perform the action, but this is not obligatory for him to do.

It might be said that since the person who hired him can pay the representative upfront that this would be counted as him nullifying the contract if he does not. But, this does not seen correct to me and it must be considered as contract that becomes nullified in and of itself.

The eighth section:

If the person who hired the representative does not pay upfront and the representative does not perform the action until its time period finishes the contract would become nullified. Imam Khomeini states:

و لو بقي على هذا الحال حتى انقضى الوقت فالظاهر انفساخ العقد.

The ninth section:

This has been mentioned in the second section. Imam Khomeini states:

و لو كان المتعارف تسليمها (payment) أو تسليم مقدار منها قبل الخروج يستحق الأجير مطالبتها على المتعارف في صورة الاطلاق

The norm of rational people is determined and the contract is mentioned in general terms. In this case, the contract will imply the norm and the representative will have the right to be paid upfront. If the person who hires him refrains from doing so then the representative can complain to a judge in order to receive his payment.

The tenth section:

Imam Khomeini states:

و يجوز للوكيل و الوصي دفع ذلك من غير ضمان

Problem: The lawyer and the person carrying out the will can act in accordance to the norm. But, we can say that he is forced to search and find someone who is willing to not act in accordance to the norm (someone who is willing to accept payment after the action). It is true, if he searches and does not find anyone then the norm is fine and if the hajj is not performed correctly he would not owe anything. This is why the phrase ‘search’ must be added to Imam Khomeini’s verdict.

Summary of Ayatollah Makarem Shirazi’s jurisprudential class 87/11/21

Ayatollah Makarem Shirazi

The discussion is in regards to the 15th ruling of representation in hajj. As was mentioned before, this ruling has ten sections in it.

The second section stated that it was not necessary for the person who hired the representative to pay him before the action is completed. We reached the fourth proof for this ruling, which was the main proof. This proof was that a contract dictates that nothing should be given until something is received because اوفوا بالعقود denotes mutuality. For instance, when a house is sold the seller must receive the money before he hands over the keys to the house. All of the commentators of ‘Arwah agreed with this section.

In our opinion, just as was mentioned in the previous session, this does not seem correct in rent contracts. The reason for this is that اوفوا بالعقود states that the whole should be given opposite a whole; not the last part opposite a whole. In other words, a gradual process is not congruent with an instantaneous process.

Therefore, in the discussion of representation in hajj the money should be placed in the hands of a trusted person or a check should be given with the stipulation that it cannot be cashed until after a month. In this case both sides would have insurance and they would be certain that they would not incur loss.

Remaining: in the norm various rent contracts have various implications because the norm amongst rational people is different in regards to different rent contracts:

A. Sometimes it is the norm for the payment to be paid in cash. For instance, the rent of a car or other vehicle where the rent money is the payment and must be paid in cash up front. In this case, the implication of the contract would be the norm and that the money must be paid upfront.

B. Sometimes it is the norm that the money of a rent contract should be paid after the action, for instance in contractual work, sowing, mechanical work, and dowries.

C. Sometimes it is the norm for a portion of the rent money to be paid upfront and the rest when the action is completed. For instance, drawing architectural plans for a building.

But, in the case of hajj, it is the norm in our times that either the money should be paid upfront or some of the money be paid upfront and the rest after completion. Therefore, the norm is different in various cases. In each case the implication is what the norm would be.

In other words, when the norm of rational people dictates a certain thing in regards to a rent contract, if the contract is mentioned in general terms without conditions it would imply the norm.

The third section:

This section is in regards to whether or not there is a difference when the rent money is an object or something that is owed. Imam Khomeini states:

و لا فرق في عدم وجوبه بين أن تكون عينا أو دينا

The object exists in the outside world and the thing owed exists on one’s shoulders. The reason that there is no difference is because اوفوا بالعقود includes objects and things that are owed. All of the mentioned proofs are executed in these two cases.

The fourth section:

This section is in regards to the growth which is the property of the representative. Imam Khomeini states:

و لو كانت عينا فنماؤها للأجير

The reason for this is that the growth always follows the object and whenever it is owned the growth follows it, unless there was a condition in the contract that stated that the growth is for the person who hired him. It is clear that whatever price was paid to keep the object is on the owner’s, the representative, shoulders.

The fifth section: This section is in regards to whether or not the representative or lawyer of the person who hired can pay the representative before the action is completed without the permission of the person they are representing. Imam Khomeini states:

و لا يجوز للوصي والوكيل التسليم قبله إلا بإذن من الموصي أو الموكل ، ولو فعلا كانا ضامنين على تقدير عدم العمل من المؤجر أو كون عمله باطلا.

Sahib Jawahir, v.17, p.397, states:

لو فرض کون المستاجر وصیا او وکیلا و دفع مع فرض عدم القرینة على الإذن له في ذلك كان ضامنا لكونه تفريطا.

Summary of Ayatollah Makarem Shirazi’s jurisprudential class 87/11/20

Ayatollah Makarem Shirazi

In the 15th ruling the discussion was in regards to the person being hired becoming the owner of the payment by the contract alone. In the discussion of the proofs we reached the second tradition narrated from Muhammad bin Abdullah al-Qumi. We said that it does not appear to be about a representation hajj.

Another problem that is raised about this tradition is that it denotes that the person hired becomes the owner after the action. This is not the discussion – our discussion is in regards to him becoming the owner with the contract.

The third tradition (from the 10th section of the sections of representation in hajj):

نْ مُحَمَّدِ بْنِ يَحْيَى عَنْ مُحَمَّدِ بْنِ أَحْمَدَ عَنْ أَحْمَدَ بْنِ الْحَسَنِ عَنْ عَمْرِو بْنِ سَعِيدٍ عَنْ مُصَدِّقِ بْنِ صَدَقَةَ عَنْ عَمَّارِ بْنِ مُوسَى السَّابَاطِيِّ عَنْ أَبِي عَبْدِ اللَّهِ ع قَالَ سَأَلْتُهُ عَنِ الرَّجُلِ يَأْخُذُ الدَّرَاهِمَ لِيَحُجَّ بِهَا عَنْ رَجُلٍ هَلْ يَجُوزُ أَنْ يُنْفِقَ مِنْهَا فِي غَيْرِ الْحَجِّ قَالَ إِذَا ضَمِنَ الْحَجَّةَ فَالدَّرَاهِمُ لَهُ يَصْنَعُ بِهَا مَا أَحَبَّ وَ عَلَيْهِ حَجَّةٌ

The chain of narration of this tradition is correct.

It is understood from this tradition that he has yet to perform hajj. In this scenario the Imam states that the representative is the owner of the payment because the Imam states that the dirhams that he obtained to perform hajj can be spent outside of hajj. Of course, he must insure that he will perform the hajj.

The second section of the ruling:

This section is in regards to when it is obligatory upon the person who hired the representative to pay the representative. Imam Khomeini states:

لكن لا يجب تسليمها إلا بعد العمل

Then he gives two exceptions. One of them is where the contract has a condition that the payment should be given to him before the action:

لو لم يشترط التعجيل

And, is that in most contracts payment is given before the action, therefore in most contracts without such a condition such a meaning is implied or if this is recognizably implied he must pay the person before the action. For instance, the person is poor and if he is not paid he would not be able to perform the hajj:

و لم تكن قرينة على إرادته من انصراف أو غيره كشاهد حال ونحوه

The same matter has been mentioned in ‘Awrah.

Viewpoints of the scholars:

Many scholars mentioned this, for instance one can refer to the late Hakim in Mustamsak, Muhaqiq Khoei, Sahib Riyad, Sahib Hada’iq, Sahib Masalik, and Sahib Jawahir.

Of course, Sahib Riyad (v.10, p.20) narrates there being a consensus. He states:

لکن لا یجب تسلیمها الا بتسلیم العین المستاجره او العمل ان وقعت علیه الاجارة و فیه شرح الارشاد الاجماع علیه.

Sahib Hada’iq (v.14, p.292) mentions something similar by using the term ‘the apparent verdict of the companions.’

The late Naraqi doubted about this issue and states that if the representative became the owner by the contract why isn’t necessary to pay him before the action? He states in Mustanad (v.11, p.145):

عدم وجوب التسلیم بعد کونه ماله یحتاج الی الدلیل و لا يسلم ذلك في مطلق الإجارة حتی فی الحج.

Viewpoints of Sunni scholars

Ibn Qudamah has a similar view in Mughni (v.6, p.15-16).

Proofs of the ruling:

One: consensus

This is a narrated consensus and cannot be relied upon by itself.

Two: the principle of the non-obligation of payment (Asl Bara’at) because the obligation of payment needs a proof. Therefore, since we doubt whether or not we must pay, this principle comes in and states that it is not forbidden to delay payment.

The answer to this is that there is another principle which supersedes this because the mentioned principle is of the اصالة عملیة and we have the ijtihadi principle اوفوا باعقود which covers all contracts. The ijtihadi principles supersede اصالة عملیة.

Three: The principle of negation of harm

This means that if the person who hired the representative pays him before the action is completed and then the representative does not complete the action the person who hired him would be inflicted with harm. In other words, the person who hired him has a form of insurance that the representative would perform the hajj by not paying him upfront.

Answer to this:

First: this principle could be applied to the representative as well because he could say that if he performs the action and the person who hired him does not pay him he would be inflicted with harm. Therefore, the harms are conflicted.

Second: the scope of this proof is smaller than the claim. The claim is that it is not obligatory to pay before the action is completed in all cases, whether there is harm or not. This principle only covers the places where the possibility of harm exists.

Four, which is the main proof: A contract or transaction stipulates that nothing should be given until something is obtained. The reason for this is that in اوفوا باعقود both sides must obey the contract. For instance, when one sells a house he must give the house and then collect payment. In our situation, as long as the representative does not complete the hajj giving it to the person who hired him he should not be given the payment.

This is correct in buying and selling contracts, but how can this be imagined in hajj? In the selling of a house the house is given at once, but hajj is a gradual process that is completed over a period of a few days. This cannot be imagined. اوفوا باعقود states that the whole should be given opposite the whole not the last part given opposite the whole. In other words, gradual processes are not comparable to instant processes.

Summary of Ayatollah Makarem Shirazi’s jurisprudential class 87/11/19

Ayatollah Makarem Shirazi

In the name of Allah, the Compassionate, the Merciful

The discussion was about the 15^th ruling in Tahrir al-Wasilah which was mentioned as the 22^nd ruling of ‘Arwah. In the previous discussion we said that this ruling has ten sections and that the most important sections of them were four.

The first section out of the four was that the representative becomes the owner of the payment with the contract. The result of this is that, if the person who hired him wants to pay him after the action is completed, any growth of the payment that occurs during this time is owned by the representative.

Opinions of the scholars:

There is no difference of opinion amongst the Shia scholars.

The author of Jawahir states in the 18^th volume, p.397: “There is no difference in that (he deserves) the payment (the representative by reciting the contract) meaning that he owns it because of the result of the contract. So, if it was an object and it grew then the growth is for him (He mentioned this same phrase in the chapter of rent, v.20, p.220)

The author of Riyad in the 10^th volume, p.20 states: “The payment is owned (by the representative) by the contract alone, without any differences, rather upon a consensus mentioned in al-Ghaniyah and al-Tadhkirah.

The author of Hada’iq states in the 21^st volume, p.561: “There is no difference of opinion and no problem in that he owns the payment by the contract alone.”

It has been said that amongst the Sunnis Abu Hanifah and Malik are in opposition to this. Ibn Quddamah in Mughni, volume 6^, p.14: The representative becomes the owner of the payment through the contract alone. Shafi’i claims this. Malik and Abu Hanifah state that he does not become the owner of it through the contract and therefore he does not have the right to demand it except [in relation to the work that he has accomplished].

It is understood from some of the Sunni statements that only Abu Hanifah had an opposite view in this regard, not Malik. Jawahir al-‘Uqud written by Shams al-Din Muhammad Ahmad al-Asiuti (a scholar from the ninth century), v.1, p.214 states: The person who opposes this is Abu Hanifah, only. Malik believes in ownership, but without the right of demanding payment.

It is strange that Shaykh Tusi in Khilaf, v.3, p.489, states that Abu Hanifah is of the people who agree with the ruling in regards to the representative becoming the owner through the contract alone. Apparently this was a mistake from him or the publisher of the book.

‘Allamah in Tadhkirah al-Fuquha’, v.7, p.161, states: Abu Hanifah forbids rent contracts [in this situation] so he becomes a pure representative and what is given to him is given to him to provide sustenance for the path.

Proofs

First proof: Consensus
It is clear that his consensus is proven through research.

Second proof and the Main proof:the result of a contract is a transfer. All contracts, for instance, buying and selling, peace, rent, marriage, are like this. For example, in a buying and selling contract the goods and the money are transferred. In a rent contract the payment is given to the representative and the action of the representative is owned by the person who hired him.

Third proof: Muhammad bin al-Hassan, through his chain, narrates from Musa bin al-Qasim, who narrates from al-Hassan bin Mahbub, who narrates from Ali bin Ra’ab, who narrates from Musama’, who asked Abu Abdullah (a): “I gave a man one dirham to perform the hajj for me. Some of this money was left over and he did not return it to me.” He (a) said: “It is for him because he might have been hard on himself is spending while he needed to spend.”

The narrators of this tradition are all trustworthy.

The denotation of the part where the Imam (a) states ‘it is for him’ apparently means that he is the owner of the payment. But, this denotation has problems and the rest of the tradition denotes the opposite of it. The reason for this is that if he is the owner of the payment he would be the owner no matter if he was hard on himself in spending it or not. This is why this tradition is not apparently about a rent contract, rather it is apparently about a person who became a representative to perform hajj and the payment of his trip is paid for by the person that he is representing. We said that in this case the representative must return the extra money, unless he was hard on himself in spending.

Muhammad bin Ya’qub narrates from some of our companions, who narrte from Ahmad bin Muhammad and Sahl bin Ziyad, who narrate from Ahmad bin Muhammad bin Abi Nasr, who narrates from Muhammad bin Abdullah al-Qumi, who asked Abu al-Hassan al-Rida (a) about a person who was given a hajj, performed it, spend abundantly, and money was left over – should he return the money? The Imam said: “No, it is for him.”

It must be determined in the chain of narration who the ‘companions’ are. These companions are different people. If these companions are mentioned after Sahl bin Ziyad they would be different than if they were mentioned after Ibn Faddal. One can refer to the appendix of Mustadrak and the first volume of Wafi for further research.

But, in regards to this tradition, Kulayni mentions in the first volume, in the first tradition, which starts just like this tradition: “some of our companions, among them being Muhammad bin Yahya al-Attar, who narrates from Ahmad bin Muhammad.” Certainly he is a trustworthy person. Therefore, if the companions are mentioned before Ahmad bin Muhammad then it is certain that there is at least one trustworthy person amongst them.

In the old days it was customary to provide a chain of narration between himself and a book that he is narrating traditions from. From this point of view, these companions were the teachers of Kafi and there are many trustworthy individuals amongst them. In addition, their books were present with Kulayni. According to this there is no problem with the companions.

In the chain of narration Ahmad bin Muhammad is trustworthy and is mentioned alongside Sahl bin Ziyad who as a problem. The fact that he is mentioned alongside him negates the problem that would arise. But, Muhammad bin Abdullah al-Qumi (who is sometimes called Muhammad bin Abdullah al-Ash’ari) is a person who is not known and has very few traditions. Therefore, the chain of narration of the tradition has a problem.

The denotation also has a problem. The apparent meaning of the verse is that it is in reference to a recommended hajj, not a hajj of representation through a rent contract.

Summary of Ayatollah Makarem Shirazi’s jurisprudential class 87/11/16

Ayatollah Makarem Shirazi

In the name of Allah, the Compassionate, the Merciful

The discussion is in regards to the 15^th ruling. This ruling is comprised of ten laws which are all in regards to the rulings regarding rent contracts. They are discussed here because of their relation with representation. Six of the laws were summarized in the previous session and the remaining four will be summarized as follows:

7. و لو لم يقدر الأجير على العمل كان للمستأجر خيار الفسخ. This part has a phrase in implication which was mentioned in ‘Awrah: If the representative cannot perform the action without the payment then the person who hired him has the choice of nullification. This means that if the representative said: “If you do not give me money I do not have enough money to perform hajj,” then it is not necessary for the person who hired him to give him this money before the action. Rather, he can nullify the contract. ‘Awrah gave the right of nullification to both the person who hired him and the representative.

8. لو بقي على هذا الحال حتى انقضى الوقت فالظاهر انفساخ العقد. If the person who hired him did not give him money before the action and the representative did not perform the action until the time frame for the action passed – the contract becomes nullified in and of itself.

9.

و لو كان المتعارف تسليمها (payment) أو تسليم مقدار منها قبل الخروج يستحق الأجير مطالبتها على المتعارف في صورة الاطلاق.

This is because general terms denote the normal format.

10.

و يجوز للوكيل و الوصي دفع ذلك (This is because it is the norm; that is why the lawyer or the person carrying out the will can give the money before the action) من غير ضمان

If the representative collected the money and did not perform the action the lawyer or the person carrying out the will would not be in debt.

Four laws of these ten laws are important. They are:

1. The representative becomes the owner of the payment through the contract alone.
2. It is not necessary for the person who hired the representative to pay him until the action is performed.
3. If the representative is not able to perform the action without collecting the payment upfront the contract becomes nullified.
4. If it is the norm that all or some of the payment is paid before the action is performed then it must be paid if the contract was made in general terms.