Must a claimant proving agency for an absent principal first have the judge hear evidence regarding the agency itself before stating the principal's claim?
General Chapter
Al-Mughni
Book of Agency
Primary text
When an agent appears before a judge claiming to represent an absent principal concerning a specified matter, the judge hears the evidence establishing that agency. However, the claimant's suit on behalf of the principal is not heard by the judge before the agency itself is established. This view is held by Malik and Al-Shafi'i. The rationale is that the claim itself cannot be heard unless the claimant is recognized as an authorized adversary for someone else, which they are not until the agency is proven. Just as a claim is not heard from someone making a claim for themselves without established authority, the claim for the principal is suspended until the agency is affirmed.
Supporting text
Abu Hanifa holds that the judge will not hear evidence concerning the agency unless the claimant first brings a defendant who is one of the principal's adversaries, and the defendant responds to a claim. Only then will the judge hear the evidence concerning agency. This difference stems from Abu Hanifa's principle that judgment against an absent person is impermissible, and hearing evidence of agency without the opponent present constitutes a judgment against the absent principal.