Ayatollah Makarem Shirazi
87/11/05
In the name of Allah, the Compassionate, the Merciful
The 11th ruling and the next ruling are related to hajj and are not related completely to the issue of representation in hajj. The first section of the discussion is about a person who has been hired and has put on the ihram and then he was unable to continue because of a personal excuse or the road was closed for him. What happens here? Tahrir al-Wasilah states that:
A masdud is a person whose path has been closed for a reason and a mahsur is a person who could not continue along the path due to sickness. Just as a person performing hajj can become masdud or mahsur, it can be imagined for one who he has hired to perform hajj as well. The rulings of masdud and mahsur have been explained in detail in the Quran (in regards to the peace treaty of Hudaybiyah) and in traditions. Wasa’il al-Shia has chapters on this issue. A masdud must sacrifice his animal of sacrifice, if he has one, right there and come out of his ihram. If he does not have an animal of sacrifice he must fast. But, a mahsur must send his animal of sacrifice or the equivalent in money to Mecca (not Mina) so that it would be sacrificed on the specified hour and day for him. It is not necessary to sacrifice this animal of sacrifice on ‘Id al-Adha. If it happened in this case everything is permissible for him, and in accordance to the views of some jurists, women are not permissible for these people until his representative performs the tawaf al-nisa for him. The mahsur and masdud, if they had an obligatory hajj, must perform it in the next year. We do not accept the exception of tawaf al-nisa. Now, the question arises as to whether or not the representative hired to perform the hajj has the same rulings as the person who performed hajj for himself. The 11th ruling has five sections and the first section is in regards to whether or not the representative is similar to the person performing hajj for himself. Jurists have made rulings in this regard. The late Hakim states in Mustadrak (v.11, p.55):
Ruling 17: If a representative of someone in performing hajj becomes masdud or mahsur the ruling would be the same as if the person performed hajj himself in regards to his actions. Footnote: Apparently there is no problem with this amongst them and the positive general proofs dictate such a ruling. Their generality includes one performing hajj himself and one performing hajj for someone else.
We have not seen anyone who opposes this. Therefore, the representative is just like the person performing hajj for himself in that he must either sacrifice, send money, or fast in order to come out of ihram. Do not forget that a person who enters the state of ihram does not come out of that state unless he performs some action, for instance hajj, ‘umrah, sacrifice, or fasting.
The proof behind this ruling:
1. In the first stage, the generality of the traditions that have been mentioned in the section on masdud and mahsur which the author of Wasa’il mentioned in the first and second section of the chapter of masdud and mahsur. In these traditions there are many phrases such as ‘one who becomes mahsur’ and ‘one who becomes masdud’ which do not denote if the person was one performing hajj for himself or performing it for someone else. This generality was enough for some jurists.
2. The second proof is that all of the person who performs hajj for someone else’s actions are similar to the person who he is performing them for. If the person who he is performing it for was there he would have done the same thing. Therefore, the representative must do exactly that. So, the similarities of the rulings regarding the representative and the represented are the second proof.
3. In addition to these, the point that a representative who has entered the state of ihram would not come out of it unless he performs the same actions that the represented would have performed.
This is the first section: The sections of this ruling have been discussed by Shia and Sunni alike. Right now we will suffice by giving references, but we will read what is necessary during our discussions: Shaykh in al-Khilaf (narrated in Mustamsak, v.11, p.55); Allamah in al-Mukhtalif, v.4, p.325; Fadil Isfahani in Kashf al-Litham, v.5, p.158; Muhaddath Bahrani in Hada’iq, v.14, p.265; Naraqi in Mustanad, v.11, p.135, and others. A Sunni source that mentioned this issue is al-Nawawi in al-Majmu’, v.7, p.137, although he did not mention all of the sections. ‘Awrah mentioned representation in the 17th ruling and Imam [Khomeini]’s wording is the same as ‘Awrah, although ‘Awrah has added things that Imam summarized in Tahrir al-Wasilah without changing the wording.
The second section is in regards to the ruling of the contract of someone who is performing hajj for someone else and has become mahsur or masdud. The wording of Tahrir al-Wasilah is as follows:
The contract is annulled if it had a qayd of the specific year and hajj remains in one’s credit if the contract was general. If the specific year was credible in the form of a condition of the contract then the person who hired the representative has the choice of disobedience of contract.
‘Urwah and Imam continue along the path of the 15th ruling and mention three cases for this issue:
1. Sometimes the contract has a qayd of a time. In this case the contract would become invalid if one became mahsur or masdud because one of the conditions of the contract is the ability to perform the action. In the renting of property the same ruling applies.
2. Sometimes the time is mentioned in the form of a condition which gives the person the choice of disobedience of contract. If he nullifies the contract it would become invalid and if he does not nullify it hajj would be performed the next year.
3. Sometimes the contract is general and the person who hired the representative did not put a qayd in the contract that the hajj has to be performed this year and did not make a condition in the contract that the hajj has to be performed this year. In this case, if we accept that generality does not denote quickness or the person who hired the representative clearly mentions that the contract is general, the representative must perform hajj in the next year.
The discussion regarding quickness meaning as soon as possible or halul will be held later. If we accept that there is a difference between a condition and a qayd in this case what is said would be correct. But, there is one criticism, and that is the issue that we raised a number of times – that a condition or qayd is not in our hands in that we have the ability to make something a qayd sometimes or a condition some other times. The reason for this is that the matter is not dependant on the specified time being a condition or a qayd, even if the person who hired the representative clearly mentioned it as a qayd.
The third section is if this hajj is sufficient for the person who the representative is performing hajj for or must hajj be performed in the coming year as well. The wording of Tahrir al-Wasilah is as follows:
It is not sufficient for the person who hajj was performed on his behalf even if it occurred after the state of ihram and after the holy sanctity was entered.
It has been imagined that this is just as if the representative died after entering the state of ihram and the holy sanctity. They said that this is just as if he died and in that case the ruling is that the hajj is sufficient so here the ruling is that it is sufficient as well. The popular opinion is that the hajj is not sufficient because Allah showed mercy to the person who died. But, we do not have any proof to say that this ruling flows onto the masdud and mahsur as well. The only person who opposed this ruling is Shaykh in Khilaf who said that the hajj of someone who becomes masdud or mahsur is sufficient.
Shaykh said, narrated in Mustamsak (v.11, p.55):
A mahsur after entering the state of ihram is like a person who died after that. The representative’s responsibility is taken care of. The proof of this is a consensus amongst the sect, in addition to the narrated proofs which do not have any opposition.
Shaykh claimed that there was a consensus. What is meant by the narrated proofs are the traditions that state that in the case of death hajj is sufficient. By joining the characteristics he generalized them. This means that the consensus is in regards to something else and the narrated proofs are the same. There is no consensus on this issue and Shaykh is alone in it. Joining the characteristics cannot be performed because it is possible that the Legislator took into account some interests in relation to the dead person, which reach his inheritors, and ruled that the hajj is sufficient. We cannot generalize this ruling to include the masdud and mahsur without reason. This is a distant syllogism. A beautiful point in this regard is that generalizing the ruling of the hajj of a person who dies after entering the holy sanctity being sufficient upon his representative does not have any narrated proof. All of the Shia jurists ruled in this way because all of the rulings regarding the representative are similar to that of the person represented. In this case, if one was performing hajj for himself and became masdud or mahsur, his hajj would not be sufficient and he would have to perform hajj again the next year. So, how is it possible that the hajj would be sufficient for the representative? It seems as if we enter the discussion from this door it would be better.
87/11/05
In the name of Allah, the Compassionate, the Merciful
The 11th ruling and the next ruling are related to hajj and are not related completely to the issue of representation in hajj. The first section of the discussion is about a person who has been hired and has put on the ihram and then he was unable to continue because of a personal excuse or the road was closed for him. What happens here? Tahrir al-Wasilah states that:
A masdud is a person whose path has been closed for a reason and a mahsur is a person who could not continue along the path due to sickness. Just as a person performing hajj can become masdud or mahsur, it can be imagined for one who he has hired to perform hajj as well. The rulings of masdud and mahsur have been explained in detail in the Quran (in regards to the peace treaty of Hudaybiyah) and in traditions. Wasa’il al-Shia has chapters on this issue. A masdud must sacrifice his animal of sacrifice, if he has one, right there and come out of his ihram. If he does not have an animal of sacrifice he must fast. But, a mahsur must send his animal of sacrifice or the equivalent in money to Mecca (not Mina) so that it would be sacrificed on the specified hour and day for him. It is not necessary to sacrifice this animal of sacrifice on ‘Id al-Adha. If it happened in this case everything is permissible for him, and in accordance to the views of some jurists, women are not permissible for these people until his representative performs the tawaf al-nisa for him. The mahsur and masdud, if they had an obligatory hajj, must perform it in the next year. We do not accept the exception of tawaf al-nisa. Now, the question arises as to whether or not the representative hired to perform the hajj has the same rulings as the person who performed hajj for himself. The 11th ruling has five sections and the first section is in regards to whether or not the representative is similar to the person performing hajj for himself. Jurists have made rulings in this regard. The late Hakim states in Mustadrak (v.11, p.55):
Ruling 17: If a representative of someone in performing hajj becomes masdud or mahsur the ruling would be the same as if the person performed hajj himself in regards to his actions. Footnote: Apparently there is no problem with this amongst them and the positive general proofs dictate such a ruling. Their generality includes one performing hajj himself and one performing hajj for someone else.
We have not seen anyone who opposes this. Therefore, the representative is just like the person performing hajj for himself in that he must either sacrifice, send money, or fast in order to come out of ihram. Do not forget that a person who enters the state of ihram does not come out of that state unless he performs some action, for instance hajj, ‘umrah, sacrifice, or fasting.
The proof behind this ruling:
1. In the first stage, the generality of the traditions that have been mentioned in the section on masdud and mahsur which the author of Wasa’il mentioned in the first and second section of the chapter of masdud and mahsur. In these traditions there are many phrases such as ‘one who becomes mahsur’ and ‘one who becomes masdud’ which do not denote if the person was one performing hajj for himself or performing it for someone else. This generality was enough for some jurists.
2. The second proof is that all of the person who performs hajj for someone else’s actions are similar to the person who he is performing them for. If the person who he is performing it for was there he would have done the same thing. Therefore, the representative must do exactly that. So, the similarities of the rulings regarding the representative and the represented are the second proof.
3. In addition to these, the point that a representative who has entered the state of ihram would not come out of it unless he performs the same actions that the represented would have performed.
This is the first section: The sections of this ruling have been discussed by Shia and Sunni alike. Right now we will suffice by giving references, but we will read what is necessary during our discussions: Shaykh in al-Khilaf (narrated in Mustamsak, v.11, p.55); Allamah in al-Mukhtalif, v.4, p.325; Fadil Isfahani in Kashf al-Litham, v.5, p.158; Muhaddath Bahrani in Hada’iq, v.14, p.265; Naraqi in Mustanad, v.11, p.135, and others. A Sunni source that mentioned this issue is al-Nawawi in al-Majmu’, v.7, p.137, although he did not mention all of the sections. ‘Awrah mentioned representation in the 17th ruling and Imam [Khomeini]’s wording is the same as ‘Awrah, although ‘Awrah has added things that Imam summarized in Tahrir al-Wasilah without changing the wording.
The second section is in regards to the ruling of the contract of someone who is performing hajj for someone else and has become mahsur or masdud. The wording of Tahrir al-Wasilah is as follows:
The contract is annulled if it had a qayd of the specific year and hajj remains in one’s credit if the contract was general. If the specific year was credible in the form of a condition of the contract then the person who hired the representative has the choice of disobedience of contract.
‘Urwah and Imam continue along the path of the 15th ruling and mention three cases for this issue:
1. Sometimes the contract has a qayd of a time. In this case the contract would become invalid if one became mahsur or masdud because one of the conditions of the contract is the ability to perform the action. In the renting of property the same ruling applies.
2. Sometimes the time is mentioned in the form of a condition which gives the person the choice of disobedience of contract. If he nullifies the contract it would become invalid and if he does not nullify it hajj would be performed the next year.
3. Sometimes the contract is general and the person who hired the representative did not put a qayd in the contract that the hajj has to be performed this year and did not make a condition in the contract that the hajj has to be performed this year. In this case, if we accept that generality does not denote quickness or the person who hired the representative clearly mentions that the contract is general, the representative must perform hajj in the next year.
The discussion regarding quickness meaning as soon as possible or halul will be held later. If we accept that there is a difference between a condition and a qayd in this case what is said would be correct. But, there is one criticism, and that is the issue that we raised a number of times – that a condition or qayd is not in our hands in that we have the ability to make something a qayd sometimes or a condition some other times. The reason for this is that the matter is not dependant on the specified time being a condition or a qayd, even if the person who hired the representative clearly mentioned it as a qayd.
The third section is if this hajj is sufficient for the person who the representative is performing hajj for or must hajj be performed in the coming year as well. The wording of Tahrir al-Wasilah is as follows:
It is not sufficient for the person who hajj was performed on his behalf even if it occurred after the state of ihram and after the holy sanctity was entered.
It has been imagined that this is just as if the representative died after entering the state of ihram and the holy sanctity. They said that this is just as if he died and in that case the ruling is that the hajj is sufficient so here the ruling is that it is sufficient as well. The popular opinion is that the hajj is not sufficient because Allah showed mercy to the person who died. But, we do not have any proof to say that this ruling flows onto the masdud and mahsur as well. The only person who opposed this ruling is Shaykh in Khilaf who said that the hajj of someone who becomes masdud or mahsur is sufficient.
Shaykh said, narrated in Mustamsak (v.11, p.55):
A mahsur after entering the state of ihram is like a person who died after that. The representative’s responsibility is taken care of. The proof of this is a consensus amongst the sect, in addition to the narrated proofs which do not have any opposition.
Shaykh claimed that there was a consensus. What is meant by the narrated proofs are the traditions that state that in the case of death hajj is sufficient. By joining the characteristics he generalized them. This means that the consensus is in regards to something else and the narrated proofs are the same. There is no consensus on this issue and Shaykh is alone in it. Joining the characteristics cannot be performed because it is possible that the Legislator took into account some interests in relation to the dead person, which reach his inheritors, and ruled that the hajj is sufficient. We cannot generalize this ruling to include the masdud and mahsur without reason. This is a distant syllogism. A beautiful point in this regard is that generalizing the ruling of the hajj of a person who dies after entering the holy sanctity being sufficient upon his representative does not have any narrated proof. All of the Shia jurists ruled in this way because all of the rulings regarding the representative are similar to that of the person represented. In this case, if one was performing hajj for himself and became masdud or mahsur, his hajj would not be sufficient and he would have to perform hajj again the next year. So, how is it possible that the hajj would be sufficient for the representative? It seems as if we enter the discussion from this door it would be better.
Posted by Hamid Waqar 
