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.