Legal and Practical Distinction Between “Delegation of Agency” (Tawkil) and “Transfer of Authority” (Tafwidh) in Drafting Official Documents

Abstract

Although the Iranian Civil Code has defined the general principles governing the agency contract, it lacks precision in clarifying and distinguishing between the related legal institutions of delegation of agency to another (tawkil be-ghayr) and transfer of authority (tafwidh). This legal ambiguity—particularly evident in notarial offices—has led to serious uncertainty in the preparation of official powers of attorney. Notaries, as the legal officers responsible for drafting documents, frequently face conceptual challenges in determining whether a given document merely constitutes permission to employ another agent (delegation of agency), or whether it entails a full transfer of the original agent’s powers (transfer of authority). The purpose of this article is to analyze and precisely distinguish the legal nature of tawkil and tafwidh, with a specific focus on their practical differences in the field of official document drafting. The research method is descriptive–analytical, based on jurisprudential principles (usul al-fiqh), relevant provisions of the Iranian Civil Code (particularly Articles 656, 672, and 673), and prevailing practices in notarial offices. The findings indicate that the fundamental difference between delegation of agency and transfer of authority lies in the continuation of powers, responsibility of the primary agent, and mode of termination of the secondary agency. In tawkil, the first agent (secondary principal) retains his original powers and shares responsibility with the secondary agent (sub-agent) for actions taken. Conversely, in tafwidh—as commonly practiced in notarial offices—the first agent’s authority is completely revoked, and the agency relationship is directly established between the original principal and the second agent. This distinction has profound implications for termination, dismissal, and liabilities arising from agency. These differences are crucial when drafting notarial instruments and determining the contractual clauses contained therein (such as the phrase “even repeatedly”), as they directly affect the survival or cessation of the legal effects of the agency.