Jurists have Set Forth Conditions for Hajj by Proxy; the Most Important of Which Are:
1) The proxy should have the intention of performing Hajj on behalf of the principal when assuming Ihraam (ritual state of consecration) because he is performing Hajj on behalf of the person authorizing him, not on his own behalf. Thus, this should be his intention. For example, he should say: I assume Ihraam on behalf of so and so or Labbayk (O Allah! I hasten to You) on behalf of so and so. There is a consensus upon this condition.
2) The principal should be incapable of performing Hajj in person but should have the money to do so. If he is capable of performing it, being of sound body while having money, then it is not permissible for others to perform Hajj on his behalf and this has the agreement of the majority of scholars except the Maaliki School which held performing Hajj on behalf of a living person absolutely impermissible. Therefore, there is a consensus that one is not allowed to authorize another to perform obligatory Hajj on his behalf if he is capable of performing it in person. In addition, the majority of scholars allowed performing Hajj on the behalf of the deceased but only if he commands it in his will and this is according to the Hanafi and Maaliki Schools. The Shaafi‘i and Hanbali Schools adopted the opinion that Hajj should be performed on his behalf if he was capable but died neglecting this act of worship.
3) Inability such as illness should continue till his death according to the agreement of the Hanafi and Shaafi‘i Schools. If the inability is cured before death, the Hajj performed on his behalf does not avail him because the permissibility of Hajj by proxy is approved, after a difference in opinions regarding a Qiyaas (analogy), for the necessity of an inability that is not hoped to be cured. Therefore, permissibility is restricted to this.
The Hanbali School said: It suffices because he performed what had been ordained. Thus, he fulfilled the obligation as if his excuse was not cured. This is the stronger opinion.
4) The proxy should assume Ihraam in the manner stipulated by the principal. For example, if he performs ‘Umrah, while he was ordered to perform Hajj, then he performed Hajj from Makkah, this is not permissible according to the Hanbali School.
Moreover, if someone ordered that Hajj is to be performed on his behalf and specified the money or the place, then everything should be done the way he specified. If he does not specify anything, then Hajj should start from the country of the principal because Hajj is due from him from his country, then the proxy should perform it on his behalf from the same place according to the Hanafi and Hanbali Schools. The Shaafi‘i School said: The proxy should start from the Meeqaat (a certain place where pilgrims are required to assume Ihraam) of the principle because Hajj is obligatory from the Meeqaat.
5) The proxy should have performed Hajj on his own behalf before performing it on behalf of others according to the Shaafi‘i and Hanbali Schools of jurisprudence. Ibn ‘Abbaas narrated, “The Prophet heard a man saying: Labbayk (O Allah! I hasten to you) on behalf of Shubrumah. He asked: ‘Who is Shubrumah?’ He replied, ‘A brother or relative of mine.’ He asked: Have you performed Hajj on your own behalf? He [the man] said, ‘No.’ He said, ‘Perform Hajj on your own behalf and then perform it on behalf of Shubrumah.‘ [Abu Daawood and Ibn Maajah]
It is permissible for a man to perform Hajj on behalf of others before performing it on his own behalf according to the Hanafi School – with Karaahah Tahreemiyyah (a degree of dislike that is very near to prohibition) – by virtue of the general nature of the Hadeeth of the woman from Khath‘am mentioned above without asking her whether or not she had performed Hajj on her own behalf.
Abandoning asking for details with regard to incidents leads to general statements. The reason for dislike is that he is abandoning the obligation of Hajj.
The Maaliki School said: Performing Hajj on behalf of the deceased – in case of demanding this in his will – before performing it on one’s own behalf is disliked based upon the idea that Hajj is obligatory on a non-immediate basis. Otherwise, it would have been prohibited upon the idea that Hajj is obligatory on an immediate basis – which is the opinion they adopted.
The first opinion is predominant by virtue of the Hadeeth of Shubrumah and abandoning inquiring for details in the Hadeeth of the woman from Khath‘am may be interpreted by the knowledge of the Prophet that she performed Hajj on her own behalf first even if the way he knew this was not narrated to us. This explanation collects all the proofs as stated by Al-Kamaal ibn Al-Hammaam.
The Majority of Scholars Replied to these Proofs as Follows:
1) Capability can be through others as well as oneself. Ibn Rushd said, “There are two types of capability: direct or through deputizing someone else.” [Bedaayat Al-Mujtahid]
2) Concerning the verse (what means): {And that there is not for man except that [good] for which he strives} [Quran 53:39], they say that even though he did not go in person, he paid his money to the proxy performing Hajj on his behalf. Thus, it is as if this Hajj is something good for which he has strived.
They also reported on the authority of Ibn ‘Abbaas that the verse is associated with the verse in which Allah The Almighty Says (what means): {And those who believed and whose descendants followed them in faith – We will join with them their descendants….} [Quran 52:21] The majority of scholars said that it is clear and precise.
Ar-Rabee‘ ibn Anas said: “This verse is about the disbeliever. The believer earns the good for which he strives and that for which others strive.’ Abu Bakr Al-Warraaq said: ‘{except that [good] for which he strives} means that which he intends to do.’” [Tafseer Al-Qurtubi] Other opinions were also mentioned. In any case, the verse does not constitute evidence for the opinion adopted by the followers of the Maaliki School and those with them.
3) With regard to arguing that the apparent meaning of the Hadeeth of the woman from Khath‘am contradicts the apparent meaning of the Quran, the answer to this is as mentioned by Al-Haafith ibn Hajar “The affirmation of the Prophet for her is a clear proof.”
Therefore, it appears that the opinion of the majority of scholars is stronger. Allah knows best.
Whoever dies while the obligatory Hajj of Islam, is required to make up for it, or if a vow of Hajj is due from him, then Hajj should be performed on his behalf from all his money, whether he commanded this in his will or not.
Hajj on his behalf should start from where it has been due from him, not from the place where he died because making up for an act of worship substitutes performing it, thus it should fulfill the same conditions. This opinion was adopted by a group of scholars; including: Ibn ‘Abbaas, Abu Hurayrah and Ibn Al-Mubaarak, Ibn Seereen, Ibn Al-Musayyib, Abu Thawr, Ibn Al-Munthir and it is the opinion held by Ash-Shaafi‘i and Ahmad .
They Supported their View with the Following:
1) Ibn ‘Abbaas narrated: “A woman from the tribe of Juhaynah came to the Prophet and said, ‘My mother had vowed to perform Hajj but she died before performing it. May I perform Hajj on my mother’s behalf?’ The Prophet replied: ‘Perform Hajj on her behalf. Had there been a debt on your mother, would you have paid it or not? So, pay the debt of Allah as He has more right to be paid.’” [Al-Bukhari]
2) It was narrated on his authority that a man said, “‘O Messenger of Allah, my father died without performing Hajj, shall I perform Hajj on his behalf?’ He said: ‘Had there been a debt on your father, would you have paid it or not?’ He replied, ‘Yes.’ The Prophet said: ‘So, the debt of Allah has more right to be paid.’” [An-Nasaa’i]
3) Since it is a right that can be fulfilled by someone on behalf of another, it is due from him during his life and it does not lapse with his death just like a debt to a human. It is obligatory from the whole capital as it is an obligatory debt. Hence, it is due from the whole capital like the debt to a human. [Al-Muhaththab]
Others said, with regard to the one who dies without performing the obligatory Hajj due from him, that if he commanded in his will, Hajj should be performed on his behalf from one-third of his estate. Otherwise, the heirs are not obliged to perform Hajj on his behalf unless they volunteer. This view is held by An-Nakha‘i, Ash-Sha‘bi, Hammaad, Al-Layth and others .
It was also adopted by Abu Haneefah and Maalik because the deceased has no right except to one-third of his wealth and debt to people is stronger because it should be fulfilled unless they relinquish it and because there is someone who demands it, unlike the debt due to Allah The Almighty which is potentially subject to His forgiveness. Thus, it should only be considered from the third as there are no competitors thereto.
There is a third opinion which is narrated to have been adopted by Ibn ‘Umar, Al-Qassim ibn Muhammad and Ibn Abi Thi’b . They said that no one should perform Hajj on behalf of another absolutely. Nevertheless, the above-mentioned traditions constitute evidence against them.
