the narration of Abdullah, regarding a man who has authority over his sister or daughter, says: "If you find someone with whom you are pleased, then marry her to him." Thus, his marriage [of her] is valid. Some of the Shafi'is forbade absolute agency. This is not correct, for it is narrated that a man from the Arabs left his daughter with Umar and said: "If you find a compatible match for her, then marry her to him, even if it is for the price of his sandal strap." Umar married her to Uthman ibn Affan, may Allah be pleased with him, and she is the mother of Umar ibn Uthman. This became well-known and was not objected to. Furthermore, it is a permission for marriage, so it is valid absolutely, just like the woman's permission; or it is a contract, so agency is valid in it absolutely. And Allah knows best.
Section: The woman's permission for the agency is not required for the validity of the agency, whether the principal is the father or someone else. Nor does it require the presence of two witnesses. Some of the Shafi'is said: It is not permissible for anyone other than one who has the power of compulsion to appoint an agent except with the woman's permission. The Qadi derived this from the two narrations regarding an agent appointing an agent without the principal's permission. It was narrated from al-Hasan ibn Salih that it is not valid except in the presence of two witnesses, because it is intended for the lawfulness of intercourse, so it requires witnessing, like marriage. Our view is that it is a permission from the guardian for marriage, so it does not require the woman's permission, nor witnessing, like the permission of the judge. We have already explained that the guardian is not an agent for the woman, and this agency does not involve the ownership of sexual relations, so it does not require witnessing, unlike marriage. What al-Hasan ibn Salih mentioned is invalidated by the case of concubinage (tasarri).
Section: The agent possesses the same [authority] as the principal. If the guardian has the power of compulsion, it is established
(8) In B and M: "wa-ibnatihi". (9) In M: "fa-zawwijiha". (10) In M, an addition: "min". (11) In A, B, and M: "Amr". Perhaps the correct version is what is in the original, for Amr was the eldest of Uthman's children who left offspring. See the biographies of Umar and Amr, sons of Uthman, in Tahdhib al-Tahdhib 7/481, 8/78. (12) We did not find it; see: Irwa' al-Ghalil 6/253, 254. (13) In A: "al-mar'ah". (14) Omitted from M. (15) In B: "thabata".
