Is a guardian permitted to purchase the orphan's property for himself?
General Chapter
Al-Mughni
Book of Agency
Primary text
According to one narration attributed to Ahmad, it is not permissible for the guardian (wasi) to purchase anything from the orphan's wealth for himself. This view is consistent with the madhhab of Al-Shafi'i. The basis for prohibiting this is related to the verse: {And do not approach the orphan's property except in a way that is best} (Quran 6:152). Purchasing it for more than its fair value constitutes acting in the best manner, but the prohibition is also maintained by analogy to the agent, whom it is prohibited for, based on established custom that a sale occurs between different parties, and the presumption of self-interest (tuhmah) which conflicts with the purpose of the sale.
Supporting text
Abu Hanifa permits the guardian to purchase, but not the agent, arguing that purchasing for more than the fair price adheres to the requirement of acting in the best manner regarding the orphan's property. Furthermore, the guardian is a substitute for the father, and it is permissible for the father, thus it is permissible for his deputy. The first narration's basis holds that the established custom in selling is that a person sells to another, and the agency is interpreted accordingly, as if the principal explicitly stated, 'Sell it to someone else.' The guardian is considered even more suspect than the agent because the guardian is suspected not only of failing to seek the highest price but also of purchasing items where the orphan has no benefit in the sale.