Islamic Fiqh > Endowments (waqf) and property > Hiba: the gift > The donation of the insolvent person under judicial interdiction
Contents
Updated on 25 September 2026 at 6:57 PM
This part belongs to the full section: All sections of this part.
This fourth part of the chapter on hiba (the donation) completes the examination of the donor: the insolvent person, the apostate, the married woman, the sick person; then of the recipient (the minor, the insane and the legally interdicted person) and of the gifted thing (existence, determination, value, ownership, indivision, distinctness); finally of the objects whose validity remains disputed: the usufruct, skins, exploitable impurities, the borrowed item, the rented property, the pledged property and the usurped property.
The second type: the donation of the person over whom a judge has declared interdiction. The insolvent person may give either before the interdiction or after it. If he gives before the interdiction, his act is effective and his gift is valid, without any divergence among the jurists.
Ibn Qudamah (may Allah have mercy on him) said: "On this opinion are Abu Hanifah, Malik and al-Shafi'i, and we do not know of anyone who contradicted them: because he is sane and not interdicted, his act takes effect like that of anyone else; because the cause of the restriction is the interdiction, and a cause does not precede its own cause; and because he is among those entitled to dispose of their property without having been interdicted, which makes him like a person wholly free to dispose" (al-Mughni, 4/283-284; al-Sharh al-kabir, 4/464).
The Malikis ruled explicitly that one whose debts overwhelm his property has three states. The first, before bankruptcy: he is prevented from any gratuitous act upon his property without compensation, in what is not obligatory upon him and what customary usage does not discharge him from: gift, charity, manumission and the like; likewise the lending of a servant and the acknowledgment of a debt in favor of one who has a claim against him; his selling and buying, however, remain lawful (Hashiyat al-Sawi 'ala al-Sharh al-saghir, 7/275; see al-Sharh al-kabir with Hashiyat al-Dardir, 5/491; Sharh Mukhtasar Khalil, 7/103).
If he gives after the interdiction, the majority of the jurists (the Shafi'is on the soundest view, the Hanbalis and the two companions of Abu Hanifah) hold that his gift does not take effect: he is interdicted by the ruling of a judge, so his act is not valid, like that of the prodigal; and because the rights of the creditors have attached to the very bodies of his property, so he may not dispose of them, as with the pledged property (Rawdat al-Talibin, 3/339 and following; al-Bayan, 6/131 and following; Mughni al-Muhtaj, 3/78, 102; Nihayat al-Muhtaj, 4/355 and following; al-Najm al-wahhaj, 4/353 and following; al-Dibaj, 2/210; al-Mughni, 4/283-284; al-Sharh al-kabir, 4/464; Sharh Muntaha al-iradat, 3/448; Kashshaf al-qina', 4/361; al-Sharh al-kabir with Hashiyat al-Dardir, 5/491; Sharh Mukhtasar Khalil, 7/103).
The Malikis, however, say: the gift of one whose debts overwhelm his property is suspended upon the approval of the creditors; if they approve it, it is valid, otherwise it is not (al-Sharh al-kabir with Hashiyat al-Dardir, 5/491; Sharh Mukhtasar Khalil, 7/103).
The Shafi'is, on one opinion, say: his act is suspended; if there remains of his property enough to satisfy the creditors, it takes effect, otherwise it is void (Rawdat al-Talibin, 3/339 and following; al-Bayan, 6/131 and following; Mughni al-Muhtaj, 3/78, 102; Nihayat al-Muhtaj, 4/355 and following; al-Najm al-wahhaj, 4/353 and following; al-Dibaj, 2/210).
Abu Hanifah, for his part, held that there is no interdiction of the insolvent person, so his act upon his property is valid (al-Jawharah al-nayyirah, 3/258, 269; al-Ikhtiyar, 2/118-119; al-Lubab, 1/448, 452; Mukhtasar al-Wiqayah, 2/411-412; al-'Inayah Sharh al-Hidayah, 13/230, 238).
Ibn Rushd (may Allah have mercy on him) said: "As for the prodigals and the insolvent, among those who hold to their interdiction there is no divergence: their gift does not take effect" (Bidayat al-mujtahid, 2/246). The issue has already been treated in detail in the book on interdiction, under the ruling on the interdiction of the insolvent.
The majority of the jurists (Malikis, Shafi'is, Hanbalis) affirmed the invalidity of a gift made by an apostate. The apostate is indeed interdicted over his property in the view of the Shafi'is and the Hanbalis: his property is booty (fay') for the Muslims; moreover, he may dispose of it in a way intended to destroy it and deprive them of it (Hashiyat al-Dardir with al-Sharh al-kabir, 5/491; Hashiyat al-'Adawi, 2/332; Sharh Mukhtasar Khalil, 7/103; al-Bayan, 6/237; al-Najm al-wahhaj, 4/396; Mughni al-Muhtaj, 3/108; Nihayat al-Muhtaj, 4/406; al-Mughni, 4/300; Kashshaf al-qina', 3/487; Sharh Muntaha al-iradat, 3/438; Manar al-sabil, 2/140).
The Hanafis, however, affirmed that the acts of the apostate (sale, gift and others) are valid before he joins the abode of war, and compensation to him is permitted. They said: a Muslim gave a gift to an apostate; the apostate compensated him from it, then he was killed or joined the abode of war: the gift stands, but his compensation is not permitted according to Abu Hanifah. According to Abu Yusuf and Muhammad it is valid like his other acts; in Abu Yusuf's view it is taken from his entire property, and in Muhammad's from one third of it, like the rest of his gratuitous acts.
If the apostate is himself the donor, and the recipient compensated him from the gift, then he was killed or joined the abode of war: his gift is returned to his heirs, and its counterpart to its holder if it still exists; if he consumed it, it becomes a debt upon the apostate's property, whether the other knew of his apostasy or not (al-Mabsut, 12/107; al-Fatawa al-Hindiyyah, 4/405; Ibn Abidin, 8/510).
The majority of the jurists require of the donor that he be the owner of the gifted thing. Upon this they differed over the gift of the fuduli (one who meddles with another's property without authorization): is his gift valid or not?
The Hanafis, the Malikis on one opinion, and the Shafi'is on one opinion, hold that the fuduli's gift is valid but not binding: if the owner approves it, it stands; if he rejects it, it is annulled. For when the owner approves it, it in reality emanates from him.
Ibn Nujaym (may Allah have mercy on him) said: "As for the bequest of the fuduli, such as when he bequeaths one thousand (dirhams) from another's property, or a specific item of the latter's property, and the owner approves: the latter has the option to deliver it or not, as with the gift; so it is stated in al-Qunyah, in the chapter of bequests."
Whatever can validly be done through an agency: if the fuduli undertakes it, it remains suspended, except purchase, by virtue of its prior condition (al-Bahr al-ra'iq, 6/164). Al-Kasani (may Allah have mercy on him) said: among the conditions is that the thing be owned by the donor, for it is not permitted to gift another's property without his permission, since transferring ownership of what one does not own is impossible (Bada'i' al-sana'i', 6/119; al-Fatawa al-Hindiyyah, 4/374; Ibn Abidin, 8/423; Bidayat al-mujtahid, 2/245).
The majority of the jurists (the Malikis on the famous view, the Shafi'is on the school's view, the Hanbalis) hold that the donor must be the owner of the gifted thing, and upon this the fuduli's gift is not valid.
The Malikis said: the fuduli's gift is void, unlike his sale, which is valid though not binding: the buyer may dispose of the purchased item before the owner ratifies the sale, since the validity of the contract produces its effect upon him, namely the permissibility of disposing of the object of the contract. The difference between the fuduli's sale and his gift is that his sale, being against a counterpart, reverts in the last resort to the owner, unlike his gift; and likewise his waqf, his charity and his manumission: whenever one of these four acts issues from a fuduli, it is void, even if the owner ratifies it.
Some, however, reported that his waqf, his gift, his charity and his manumission are like his sale: each of these acts is valid though not binding; if the owner approves it, it stands, and if he rejects it, it is annulled. Al-Dardir said: this is what our master al-'Adawi chose, for if the owner approves it, it in reality emanates from him (Hashiyat al-Dardir 'ala al-Sharh al-kabir, 5/491; Hashiyat al-Sawi 'ala al-Sharh al-saghir, 9/202; see al-Najm al-wahhaj, 4/41; Rawdat al-Talibin, 3/18-19; al-Majmu', 9/247; al-Wasit, 3/404; Mughni al-Muhtaj, 2/432; al-'Ubab, p. 512; Sharh I'anat al-Talibin, 3/23; al-Dibaj, 2/11-12; al-Bayan, 5/12; al-Siraj al-wahhaj, p. 208; Hashiyat Qalyubi and 'Umayrah 'ala Kunz al-raghibin, 2/405; Nihayat al-Muhtaj with Hashiyat al-Shabramallasi, 3/463, 465; al-Mughni, 4/145; Kashshaf al-qina', 3/180-181; Sharh Muntaha al-iradat, 3/130-131; al-Rawd al-murbi', 1/543-544; al-Insaf, 4/238). The issue was treated with some detail in the sixth volume, in the book of sales, under the ruling on the fuduli's sale.
The jurists agreed that if the woman gives less than one third of her property, her gift is valid and effective. They differed if she gives more than one third of her property: is it permitted or not?
The majority (Hanafis, Shafi'is, Hanbalis on the school's view): once the woman has reached puberty and her sanity is present, she may dispose of her property by gift or otherwise, whether virgin or previously married, with no difference between her and the pubescent sane man: whatever is permitted of the gifts of a sane pubescent man is permitted of her gifts (Ahkam al-Qur'an by al-Jassas, 2/352; the commentary on Sahih al-Bukhari by Ibn Battal, 7/107; the tafsir of al-Qurtubi, 5/24-25).
The majority adduced in support the chapter related by al-Bukhari: the chapter on the woman's gift to other than her husband and her manumission when she has a husband: it is permitted if she is not prodigal; if she is prodigal, it is not permitted. Allah the Most High said:
"And do not give to the prodigals your wealth"
Surah An-Nisa, 5
Asma (may Allah be pleased with her) said: "O Messenger of Allah, I have no property except what al-Zubayr brings me, and I give it in charity." He said: "Give in charity and do not keep count, or else it will be counted against you."Related by al-Bukhari
In another version in the same chapter: "Spend and do not count, or else Allah will count against you; and do not keep count, or else Allah will keep count against you."
Maymunah bint al-Harith (may Allah be pleased with her) informed that she manumitted a slave girl without asking the permission of the Prophet (peace be upon him). On the day that was her turn, she said: "Have you been informed, O Messenger of Allah, that I manumitted my slave girl?" He said: "Did you do it?" She said: "Yes." He said: "Know that had you given her to your maternal uncles, your reward would have been greater."Related by al-Bukhari
Al-Hafiz Ibn Hajar (may Allah have mercy on him) commented: "His saying 'the chapter on the woman's gift to other than her husband and her manumission when she has a husband' means: even if she has a husband, it is permitted if she is not prodigal; if she is prodigal, it is not. Allah the Most High said: 'And do not give to the prodigals your wealth'; on this ruling is the majority, with the exception of Tawus, who prohibited it absolutely. It is related from Malik: she may not give without her husband's permission, even if she is sane, except within one third. From al-Layth: it is not permitted to her at all, except in trivial things. The proofs of the majority from the Book and the Sunnah are many. Against the majority the hadith of 'Amr ibn Shu'ayb, from his father and his grandfather, from the Prophet (peace be upon him), was adduced: 'The gift of a woman from her property is not valid without her husband's permission', related by Abu Dawud and al-Nasa'i. Ibn Battal said: the hadiths of this chapter are the sounder; Malik interpreted them as referring to things of little value, setting its limit at one third and what is below it, and the compiler (al-Bukhari) mentioned three of them" (Fath al-Bari, 5/218).
The Prophet (peace be upon him) said: "It is not valid for a woman to make a gift without her husband's permission." And in a version: "It is not valid for a woman any decision over her property when her husband possesses her person." The meaning is: in what exceeds one third, for the third may be disposed of by the consensus of the scholars; it is therefore established that the third and what is below it fall outside the generality of the report.Hasan hadith: related by al-Imam (2/179, 184, 207), Abu Dawud (3546, 3547), al-Nasa'i (2540, 3756, 3757), Ibn Majah (2388), al-Hakim in al-Mustadrak (2/54), al-Bayhaqi in al-Sunan al-kubra (6/60-61) and in Ma'rifat al-sunan wa-al-athar (4/463)
The Malikis, and Ahmad in one narration, hold that the gift of the woman who has a husband, in what exceeds one third of her property, is valid, but suspended upon his permission: if he approves what exceeds the third, it takes effect, otherwise not (al-Sharh al-kabir with Hashiyat al-Dardir, 5/491; Sharh Mukhtasar Khalil, 7/103; Hashiyat al-Sawi, 9/198).
The proof that the woman is restricted vis-a-vis her husband in her gratuitous act exceeding the third is the saying of the Prophet (peace be upon him):
"A woman is sought in marriage for four: her wealth, her lineage, her beauty and her religion."Related by al-Bukhari (5090) and Muslim (1466)
This indicates that the husband has a right to her property remaining in her hands. Custom also runs to the effect that the husband adorns himself with his wife's property and has therein support and preservation, and this shows that the comparable dower rises and falls according to her wealth and its abundance. When this is established, she cannot defeat the purpose for which he desired to marry her and for which her dower was set.
It is stated in al-Mudawwana al-kubra: "I said: what do you say of a man who marries a woman for one hundred dinars, who is among those permitted to dispose of their property, and who gives her dower to a unrelated man before receiving it from her husband and before the husband consummates the marriage: is that permitted or not in Malik's view? He said: Malik said concerning the gift of the woman who has a husband: what she did is permitted within one third of her property; if her third can bear it, her gift is permitted; if her third cannot bear it, it is not permitted, little or much. Malik said the same of everything a woman who has a husband does with her property. I said: if her third can bear it? He said: that is permitted with Malik if she is among those whose disposal of property is permitted" (al-Mudawwana al-kubra, 4/225-226; al-Sharh al-kabir with Hashiyat al-Dardir, 5/491; Sharh Mukhtasar Khalil, 7/103; Hashiyat al-Sawi, 9/198).
Ibn Qudamah (may Allah have mercy on him) said: "When the girl reaches puberty and her prudence is apparent after puberty, her property is handed over to her and the interdiction departs from her, even if she does not marry; on this are 'Ata', al-Thawri, Abu Hanifah, al-Shafi'i, Abu Thawr and Ibn al-Mundhir. Abu Talib related from Ahmad: the girl's property is not handed over to her after puberty until she marries and gives birth, or a year passes in her husband's house; that is related from Umar, and on it are Shurayh, al-Sha'bi and Ishaq. Shurayh said: Umar ibn al-Khattab (may Allah be pleased with him) enjoined upon me not to validate the gift of a girl until she dwells in her husband's house for a year or bears a child; Sa'id related it in his Sunan, and no contradictor to it is known, so it became a consensus."
Malik said: her property is not handed over to her until she marries and her husband enters upon her, because in every state in which the father may marry her off without her consent, the interdiction does not depart from her, like the young girl.
Our argument: the generality of the saying of the Most High:
"And test the orphans until they reach marriageable age; then, if you find in them sound judgment, hand over to them their property"
Surah An-Nisa, 6
She is an orphan who has reached puberty and whose prudence has become apparent, so her property is handed over to her like the man's. She is a pubescent sane woman: she may dispose of her property like the one whose husband has entered upon her. The hadith of Umar, even if authentic, is not known to have spread among the Companions, and the Book and analogy are not abandoned on account of it; moreover, the hadith of Umar is specific to prohibiting the gift and does not entail prohibiting the handing over of her property to her nor depriving her of the other acts of disposal.
Malik did not act upon it: he relied on the father's power to coerce her into marriage. It is open to us to prohibit that coercion while accepting his saying: the father coerces her into marriage only because her suitability for marriage and its interests is not known except by its consummation, while sale, purchase and transactions are possible before marriage. On this narration, if she does not marry at all, the interdiction may persist upon her, acting upon the generality of the hadith of Umar, and because the condition for handing over her property is not fulfilled, so it is not permitted to hand it to her as if she were not sane. The Qadi said: in my view her property is handed over to her when she becomes visibly a woman and appears before men, meaning when she has grown up.
The fasl: the apparent sense of al-Khirqi's words is that the sane woman may dispose of all her property, gratuitously and with compensation; this is one of Ahmad's two narrations, and the school of Abu Hanifah, al-Shafi'i and Ibn al-Mundhir.
From Ahmad another narration is related: she may not dispose of her property beyond one third without compensation except with her husband's permission, and Malik said the same. It is related from him concerning a woman who vowed to manumit a slave girl she owned and nothing else, then broke her vow while she had a husband, that her husband rejected it back upon her: he may reject it upon her, and she has no manumission, in accordance with this hadith:
A woman of the family of Ka'b ibn Malik came to the Prophet (peace be upon him) with her jewelry, and the Prophet (peace be upon him) said to her: "It is not valid for a woman to make a gift until her husband permits her: have you asked Ka'b's permission?" She said: "Yes." The Messenger of Allah (peace be upon him) then sent to Ka'b and said: "Have you permitted her to give her jewelry in charity?" He said: "Yes." And the Messenger of Allah (peace be upon him) accepted it (the gift).Related by Ibn Majah
It is also related from 'Amr ibn Shu'ayb, from his father and his grandfather, that the Messenger of Allah (peace be upon him) said in a sermon: "It is not valid for a woman to make a gift from her property without her husband's permission, for he is the possessor of her person" (a hasan hadith, cited previously; related by Abu Dawud; in the wording of Abdullah ibn 'Amr: "It is not valid for a woman to make a gift except with her husband's permission"). The husband's right indeed attaches to her property, for the Prophet (peace be upon him) said: "A woman is sought in marriage for her wealth, her beauty and her religion"; and custom is that the husband increases her dower on account of her wealth, ventures into it and benefits from it, and if he is strained for maintenance she defers it: this runs like the heirs' rights attaching to the sick person's property.
Our argument further: the saying of the Most High:
"If you find in them sound judgment, hand over to them their property"
Surah An-Nisa, 6
It is established that the Prophet (peace be upon him) said:
"O company of women, give in charity, even from your jewelry." They gave in charity, and he accepted their charity without questioning or inquiring into details. Zaynab, the wife of Abdullah, came to him with another woman named Zaynab and asked him about charity: is it permitted for them to give charity to their husbands and to orphans in their care? He said: "Yes," without mentioning this condition to them.Related by al-Bukhari (1393) and Muslim (79)
Whoever must have his property handed over to him for his soundness of judgment may dispose of it without permission, like the boy. The woman is among those entitled to dispose, and her husband has no right over her property, so he does not possess the interdiction over her in all acts like her counterpart. Their hadith is weak, and Shu'ayb did not meet Abdullah ibn 'Amr, so it is mursal. Moreover, it is to be interpreted as: her gift from her husband's property is not valid without his permission, as shown by the fact that her giving of less than one third of her property is permitted; and they have no hadith indicating the delimitation of the prohibition to one third, so this delimitation is an arbitrary ruling with no fixed point and no proof.
Their analogy with the sick person is incorrect for two reasons. The first: illness is a cause through which the property reaches the heirs by inheritance, whereas marriage merely makes him one of the heirs: it is one of the two elements of the effective cause, and the ruling is not established by it alone, just as the woman's interdiction over her husband or over the other heirs is not established without illness (al-Mughni, 4/299-300; see the commentary on Muslim, 3/443; al-Bayan, 6/227; al-Mubdi', 4/305).
(Second reply to the analogy:) the sick person's gratuitous act is suspended: if he recovers it is confirmed, whereas here they declared it void in every case, while the branch does not exceed its root. (Third reply:) what they mentioned is refuted by the woman: she benefits from her husband's property and freely uses it by custom, and she has maintenance from him; her benefit from his property is greater than his from hers, and she is not interdicted over him; and moreover this meaning does not exist in the root, whereas one of the conditions of a valid analogy is the presence of the meaning establishing the ruling in both the root and the branch together (al-Mughni, 4/299-300; the commentary on Muslim, 3/443; al-Bayan, 6/227; al-Mubdi', 4/305). Among the Hanbalis, the gift in a fatal illness is called al-'atiyyah (al-Matla' 'ala abwab al-Muqni', p. 291; al-Mubdi', 5/360).
The scholars agreed that when the donor is healthy, not afflicted with a mortal illness, the owner of the gifted thing and free in his disposal, his gift is valid and effective over all his property. The jurists of the four schools (Hanafis, Malikis, Shafi'is, Hanbalis) likewise agreed that when the sick person gives during his illness (2) and it is taken possession of, it counts within one third of his property like his other bequests: if the third can bear it, it is ratified; otherwise it is returned, for it follows the ruling of a bequest. If the third can bear part of it, the portion the third can bear is ratified, unless the heir ratifies it, in which case it is valid in its entirety.
'Amir ibn Sa'd ibn Abi Waqqas (may Allah be pleased with him) related from his father (may Allah be pleased with him): "I fell ill in Makkah to the point of being at death's door, and the Prophet (peace be upon him) came to visit me. I said: O Messenger of Allah, I have much property and none will inherit from me but my daughter: shall I give two thirds of my property in charity? He said: 'No.' I said: Then half? He said: 'No.' I said: A third? He said: 'A third is much: it is better to leave your children rich than to leave them dependent, stretching their hands out to people.'" Related by al-Bukhari (6352) and Muslim (1628)
Ibn Abd al-Barr (may Allah have mercy on him) said: "As for the hadith of Ibn Shihab, his transmitters did not differ over it, neither Ibn 'Uyaynah nor any other: he said: 'Shall I give all my property in charity, or two thirds of it?' and he did not say 'shall I bequeath'. If this wording 'shall I give in charity' is sound, it is a decisive proof for what the majority of the people of knowledge held concerning the sick person's gifts, charities and manumissions: all of it counts within his third, not his entire property; and that is the view of Malik, al-Layth, al-Awza'i, al-Thawri, al-Shafi'i, Abu Hanifah and his companions, Ahmad, and the generality of the people of hadith and of reasoned opinion" (al-Tamhid, 8/377).
They also adduced what Muslim related from 'Imran ibn Husayn (may Allah be pleased with him):
"A man manumitted six slaves of his at the time of his death, having no property besides them. The Messenger of Allah (peace be upon him) summoned them, divided them into three parts, drew lots among them, manumitted two and retained four in servitude, and said harsh words to him."Related by Muslim (1668)
The Prophet (peace be upon him) thus counted manumissions during illness within the third; likewise gifts and charities, since they are all equal in depriving property; and in this state death cannot be ruled out, so he is placed in the position of one dying: if he recovers from his illness, his gift is valid by agreement; likewise if he recovers, then falls ill again and dies: it comes from the capital, for it is no longer a mortal illness. If he gifts something whose taking of possession is required while healthy and takes possession of it while sick, it counts within the third, for it became binding only through the possession taken during the illness (Fatawa al-Sughdi, 1/520; al-Muhit al-Burhani, 6/190; Majma' al-anhar, 3/492; Ibn Abidin, 8/481; the commentary on Sahih al-Bukhari by Ibn Battal, 8/145; al-Tamhid, 8/377; al-Kafi, p. 530; Bidayat al-mujtahid, 2/245; Hashiyat al-'Adawi, 2/332; al-Sharh al-kabir with Hashiyat al-Dardir, 5/491; Sharh Mukhtasar Khalil, 7/103; al-Sharh al-saghir with Hashiyat al-Sawi, 9/198; al-Hawi al-kabir, 7/552; 'Umdat al-qari', 8/91; al-Kafi by Ibn Qudamah, 2/486; al-Sharh al-kabir, 6/291).
Ibn al-Mundhir (may Allah have mercy on him) said: "The people of knowledge agreed that whatever the sick person whose death is feared does during the illness in which he may die, of gift to a stranger, charity or manumission, counts within one third of his property, and whatever of it exceeds his third is returned, and its ratification is not permitted." The report of 'Imran ibn Husayn from the Messenger of Allah (peace be upon him) concerning the man who manumitted six slaves at his death, of whom the Prophet (peace be upon him) manumitted two and retained four, proves what the people of knowledge agreed upon (al-Ishraf, 6/124; al-Ijma', no. 736).
Ibn al-Qattan al-Fasi (may Allah have mercy on him) said: "They agreed that the ruling of gifts during the illness in which the donor dies is the ruling of bequests, and that they count within the third if possession has been taken of them" (al-Iqna' fi masa'il al-ijma', 3/1637, no. 3210). They also agreed that when the sick person gives a man a gift and takes possession of it, being among the things gifts are permitted in, then the sick person recovers from that illness, there is no way against him, and it returns to validity as if he had gifted in health, except al-Layth ibn Sa'd, who said: if he does not renew that gift over the gifted thing, his gift is void (al-Iqna' fi masa'il al-ijma', 3/1637, no. 3212).
The majority, who are a proof against whoever contradicts them, agreed that the gifts and charities of the gravely burdened sick person do not pass except what his third can carry. Dawud (al-Zahiri) said: his gifts are permitted and effective over his entire property, for it is not a bequest: the bequest is what becomes due upon the death of the testator (al-Iqna' fi masa'il al-ijma', 3/1638, no. 3214). The Maliki Qadi Abd al-Wahhab (may Allah have mercy on him) said: "The sick person's gifts and presents, his manumission, and everything that removes property from him without compensation are suspended and not definitive: if he recovers, they become binding; if he dies, they count within the third." Dawud said: all of that is permitted from the principal. "Our proof is his saying (peace be upon him): 'Allah has allotted you one third of your property at your death': he informed that he has only the third, not permitting anything beyond it; and the hadith of 'Imran ibn Husayn: 'A man manumitted six slaves of his during his illness, having no property besides them; the Prophet (peace be upon him) was informed and became intensely angry, summoned them, drew lots among them, manumitted two of them and retained four'; and because the presence of the cause of death follows the course of the presence of death itself, as they prohibited that by the consensus of the Companions: Abu Bakr (may Allah be pleased with him) said to Aisha (may Allah be pleased with her): 'I had gifted you twenty wasq of skins, and had you taken possession of them it would have been yours; but today it is the heir's property': he showed that the heirs' right attaches to it in this state, and that is what prevents handing it over to her, and no one contradicted him; and an original gift during illness is like a bequest" (al-Ishraf 'ala nukt masa'il al-khilaf, 5/157-158, no. 1908).
The majority of the scholars and the assembly of the imams of fatwa said: his gifts and presents are all effective if he recovers, and they come from the principal of his property, with possession being observed in the presents (al-Iqna' fi masa'il al-ijma', 3/1638, no. 3215).
In the view of the majority of the jurists, the recipient must possess the legal capacity of ownership over what is gifted to him, through legal accountability and the like, so a gift to an animal is not valid (Hashiyat al-Sawi 'ala al-Sharh al-saghir, 9/198; al-Iqna' by al-Buhuti, 2/366; Mughni al-Muhtaj, 3/488). As for the one not legally accountable, such as the child and the interdicted person, his guardian accepts and takes possession on his behalf.
The gift to the child comes either from his father or from a stranger.
First: the father's gift to his son and the father's taking of possession.
The jurists differed: when the father gives his son a gift, does the son acquire it by the contract, or is taking possession required? The majority of the jurists (Hanafis, Malikis, Hanbalis) hold: when the father gives his minor son a gift, the son acquires it by the contract, for the gifted thing is in the father's hand, which substitutes for taking possession of the gift; witnessing suffices therein without being a condition, but as a precaution against the heirs' denial after his death or his own denial once the child reaches discretion.
Ibn Qudamah (may Allah have mercy on him) said: "If the father gives his son something, he stands in his place in taking possession and acceptance, if needed. Ibn al-Mundhir said: everyone whom we preserve among the people of knowledge agreed that when a man gives his young child a specific house or a specific slave, takes possession of it himself and witnesses that the gift is complete, it is valid: that is the view of Malik, al-Thawri, al-Shafi'i and the people of opinion; we relate that meaning from Shurayh and Umar ibn Abd al-Aziz" (al-Ijma', no. 600; al-Ishraf, 7/83, no. 4333). If the gifted thing requires taking possession, his saying suffices: "I have gifted this to my son and taken possession of it for him," for it dispenses with acceptance as we mentioned, whereas his saying "I have accepted it" does not dispense with taking possession. If it does not require taking possession, his saying "I have gifted this to my son" suffices, with no need to mention possession or acceptance.
Ibn Abd al-Barr (may Allah have mercy on him) said: "The jurists agreed that the father's gift to his minor son in his custody requires no taking of possession, that witnessing therein dispenses with possession, and that its guardian is his father, in accordance with what Malik related from al-Zuhri, from Ibn al-Musayyib, that Uthman ruled: 'Whoever gifts his young child, not yet able to take possession of the gift, if he makes it public and witnesses it, it is valid, even if his father manages it.'" (al-Muwatta, 2/771, no. 1461).
The Qadi (Ibn al-Mundhir) said: the gift to the child requires saying "I have accepted it," and this is al-Shafi'i's school, for with them the gift is not valid except with offer and acceptance. We have mentioned previously that contextual clues dispense with the wording of acceptance, and there is no clearer indication of acceptance than that the acceptor is the donor himself: requiring a wording without meaning, not sanctioned by the Sacred Law, is an arbitrary ruling with no content, contradicting the outward practice of the Prophet (peace be upon him) and his Companions. Nor is it Ahmad's school: in Harb's narration, concerning a man who witnessed a known share of his estate for his only son, Ahmad said: "I prefer that he say at the witnessing: 'I have taken possession of it for him.'" He was told: what if he forgets? He said: "If it is set apart and distinct, I hope (it suffices)." Ahmad thus indicated that his saying "I have taken possession of it" suffices, and that he hopes that, with distinctness, witnessing alone suffices, and this agrees with the consensus mentioned of all the other scholars. Some of our companions said: one of the two wordings suffices: either "I have accepted it" or "I have taken possession of it," for acceptance dispenses with taking possession; the apparent sense of Ahmad's words is what we mentioned; there is no difference between monetary sums and other things in what we mentioned, and Abu Hanifah and al-Shafi'i say the same on this point.
Malik said: if he gifts him what is known by count, such as monetary sums, it is not valid unless he places them into another's hand, for the father may spoil them, and he may spoil them without cause, and it is not possible to witness a specific count, so taking possession is of no benefit.
Our reply: that is among the things whose gift is not valid in the first place; when he gifts it to his minor son and takes possession of it for him, the gift must be valid, like the movable goods (al-Mughni, 5/386; al-Sharh al-kabir, 6/259).
Abu 'Umar Ibn Abd al-Barr (may Allah have mercy on him), after the hadith of Uthman mentioned above, said: "Upon Uthman's ruling concerning the father's gift to his minor son are the jurists of the Hijaz and Iraq, except that our companions (Malikis) differ from the rest of the jurists concerning the inhabited dwelling, the worn garment and the endowed property: they do not consider the father's witnessing in those to be possession until he has been out of it for at least a year, so that his act becomes manifest; if he rides what is ridden or wears what is worn, he has retracted his gift."
Malik said: "Our position is that whoever gifts his young son gold or silver and then dies while managing it: the son has nothing of it, unless he set it apart specifically, or delivered it to a man and placed it for his son with that man; if he did that, it is valid for the son" (al-Muwatta, 2/771). In the narration of Abu Mus'ab and others, Malik added: "And if the gift is a slave, a female slave or a known and identifiable thing, and he witnesses it, makes it public, and then dies while managing his son: it is valid for his son."
Abu 'Umar said: "I know of no divergence among the jurists issuing fatwa in the cities, nor among the scholars who preceded them: the father takes possession for his minor son, or for the adult prodigal (that is, when he is a prodigal), of everything he gifts him, gives him and gives in charity on his behalf, of all the movable goods, the real estate and everything besides the specific item, just as what others give him is permitted to him; and witnessing and publication suffice therein: witnessing is publication once it spreads and becomes manifest."
Malik and his companions said: the dwelling the father lives in: a gift of it to his minor son in his custody is not valid until he has left it for a year or thereabouts; thereafter his returning to live in it does not harm it, so long as the father does not die in it and the minor does not reach his sound judgment, for he cannot take possession of it: if the father dies living in it, or the son becomes mature without taking possession of it until the father's death, his possession of it that year does not benefit him. They made the validity of the gift to the minor conditional on its remaining unencumbered: if it remains free of pledge, the gift is valid; if a pledge covering all that preceded attaches to it, not so. Likewise the worn garment: if the father wears a garment he gifted his young son, his gift is void; and everything besides the inhabited and the worn: witnessing suffices under the conditions we described.
The rest of the jurists, however, hold that when the father witnesses and publishes the gift he gives his son during his lifetime, it takes effect for the son even while a minor; the father's possession for himself is like his possession of what others give his son under his care; and his gifting during the son's minority may not be pledged, neither his dwelling nor his clothing; with Malik too, if he dwells in it after the year has passed, that does not count as retraction, just as after the year it does not count; and what the scholars said is the apparent sense of Uthman's act before the assembly of the Companions (may Allah be pleased with them), without any objection from anyone, and with Allah is success.
As for gold and silver, Malik said in his Muwatta what we cited at the head of this chapter: its apparent sense is that if he sets it apart specifically in a container and seals it with his seal or the seal of the witnesses who witnessed, it is valid for the son as if he had placed it with a man: this is the view of Ibn al-Majishun and Ashhab, and such was the fatwa of our master Abu 'Umar Ahmad ibn Abdullah ibn Hashim (may Allah have mercy on him). Al-'Utbi related from Ibn al-Qasim, from Malik: it is not valid unless the father removes it from his hand to the hand of another who keeps it for the son, and his seal does not benefit him; and the Qadi Abu Bakr Muhammad ibn Yahya ibn Zarb used to judge accordingly, and this issue was one of the causes of the estrangement between him and Abu 'Umar (may Allah have mercy on them both).
They differed over the gift of the undivided share (musha') of sheep flocks and the like, which the father gifts his minor son in his custody: it is related from Malik that it is permitted, and Ibn al-Majishun said the same; Ibn al-Qasim said: the father takes possession for his minor son only of what he gives separated and divided; Malik returned to this view, and Mutarrif and Asbagh said the same. Abu 'Umar said: "The apparent sense of Uthman's hadith testifies to what Malik and Ibn al-Majishun said: it is the agreed-upon origin among the majority of the scholars, with no contradictor among the Companions."
They differed over who, besides the father, takes possession for the minor and stands in the father's place in possession of what is given to him. Yahya related from Ibn al-Qasim, from Malik: the mother does not take possession for her son of what is given to him unless she was bequeathed that role; he said: "None takes possession for the child except one for whom marriage, the pact of non-aggression, sale and purchase are lawful." Yahya said: I heard Ibn Wahb say: the mother takes possession for her children of what she gifts them, and likewise the grandmother and the forefathers, even if they are not his guardians. Ibn al-Qasim said: the mother does not take possession of what is gifted to her child. Ashhab said: in their view only those appointed by bequest take possession; the testamentary guardian takes possession for the orphan in his custody of what is gifted to him. As for al-Shafi'i: the grandfather stands in the father's place in what he gifts the children of his children's children, taking possession for them until they reach the age of taking possession for themselves. As for the Kufans: al-Tahawi and others related from Abu Hanifah and his companions that the mother is like the father in what she gifts her orphan son in her custody, a slave or a known item, when she witnesses it: it is valid and she does not retract from any of it; she likewise takes possession for him of every donor from whom taking possession is valid, and likewise the testamentary guardian, and likewise whoever takes possession for the orphan of what is given to him among strangers. Al-Tahawi also related from them: the father may take possession of what he gifts his minor son as charity on their behalf, and likewise whoever is above him among the fathers if he is the one who commissioned him; and his taking possession of it for himself is his witnessing and publication of what occurred (al-Istidhkar, 7/307, 310; al-Tamhid, 7/241, 243; al-Bayan wa-al-tahsil, 13/359; the commentary of al-Zurqani, 4/96-97).
Ibn Rushd (may Allah have mercy on him) said: "The majority of the jurists of the regions hold that the father takes possession for his minor son under his supervisory guardianship, and for the adult prodigal, of what he gifts them, just as he takes possession for them of what another gifts them; witnessing the gift and publishing it suffice therein; and all of that except gold and silver and what cannot be individualized." The origin of that in their view is what Malik related from Ibn Shihab, from Sa'id ibn al-Musayyib, that Uthman ibn Affan said: "Whoever gifts his young child, not yet able to take possession of the gift, if he makes it public and witnesses it, it is valid, even if his father manages it" (al-Muwatta, 2/771, no. 1461; Bidayat al-mujtahid, 2/247-248).
Malik and his companions: possession is required in the inhabited dwelling and the worn garment: if it is a house he lives in, he must leave it; likewise the garment, if he wears it, the gift is void; and of the rest of the movable goods they said what the jurists said, meaning that his publication and witnessing suffice. As for gold and silver, the narration from Malik differed: it is related from him that it is not valid unless the father removes it from his hand to another's hand, and it is related from him that it is valid if he places it in a container or vessel, seals it with a seal, and has the witnesses witness that. There is no divergence among Malik's companions that the testamentary guardian stands in the father's place in that. They differed over the mother: Ibn al-Qasim said she does not stand in the father's place, and he related that from Malik; others of his companions said she does, and Abu Hanifah said the same. Al-Shafi'i said: the grandfather is like the father; and in Ibn Wahb's view the maternal grandmother stands in the mother's place, and the mother in the father's place (Bidayat al-mujtahid, 2/247-248).
The Hanafis said: when the father gives his minor son a gift, the son acquires it by the contract, with possession being effected by informing him of what he gifted him; witnessing is not a condition except as a precaution against the heirs' denial after his death or his own denial after the child reaches discretion; for the gifted thing is in the father's hand, which substitutes for taking possession of the gift; there is no difference between it being in his hand or in the hand of his depositary, for the depositary's hand is like his own, unlike what is pledged, usurped or sold by an invalid sale, which is in another's hand or another's ownership; and charity is like the gift in this.
Likewise when the mother gifts her young child while he is her dependent and his father is dead with no testamentary guardian: she has guardianship over what pertains to his preservation and the preservation of his property, and this falls under it; the restriction to the father's death and the absence of a testamentary guardian is because when they exist she does not have guardianship over taking possession; likewise everyone who has him as a dependent, such as the brother, the uncle and the stranger: taking possession of the gift for the orphan is permitted to them (Tuhfat al-fuqaha, 3/168; Bada'i' al-sana'i', 6/126; al-'Inayah, 12/283, 286; al-Ikhtiyar, 3/59; Tabyin al-haqa'iq, 5/95-96; al-Jawharah al-nayyirah, 4/70, 72; al-Bahr al-ra'iq, 7/288, 290; Mukhtasar al-Wiqayah, 2/105).
The Shafi'is hold that taking possession is required in the father's gift to his minor son. Al-Khatib al-Shirbini (may Allah have mercy on him) said: "The father's gift to his minor son does not transfer ownership except by taking possession, as required by their words on sale and the like, contrary to what Ibn Abd al-Barr related" (al-Iqna', 2/367; Mughni al-Muhtaj, 3/493; Tuhfat al-habib 'ala Sharh al-Khatib by al-Bujayrimi, 3/460).
Al-'Imrani (may Allah have mercy on him) said: "If the donor to the child is his guardian: if the guardian is the testamentary guardian, the judge or the agent, his acceptance for him on his own behalf and his taking of possession are not valid; rather" (the continuation comes in the next sheet).
Continuation: "the judge appoints a trustworthy agent for him who accepts the gift and takes possession of it, for it is not valid for him to sell the property with his own property, so his acceptance is not valid. If the guardian is his father or grandfather, it is valid for him to accept the gift himself, for he is permitted to buy property with his own property."
Al-Mas'udi said: must the guardian utter both offer and acceptance, or does either one suffice? There are two views, and the famous one is that he must utter both. As for taking possession: if we say that the gift of a deposit in his hand to another does not require taking possession, it is already taken for the recipient; and if we say that taking possession is required in the gift of the deposit, he must say here: "and I have taken possession of it for him myself."
If a man gives a gift to his adult son, it is not valid until the son or his agent accepts: if the father accepts for him, it is not valid. Ibn Abi Laylah said: it is valid if he supports him. Our proof: after puberty he has no guardianship over him, so his acceptance for him is not valid, just as if he did not support him (al-Bayan fi madhhab al-imam al-Shafi'i, 8/122-123).
Second: the stranger's gift to the minor, the insane and the interdicted person.
The jurists agreed that the insane person's taking of possession is not valid, and likewise that of the child who does not discern. The jurists differed over the child who has reason and discernment: is his taking of possession valid, or is his guardian's taking of possession for him required? The Hanafis on one opinion, and the Malikis, Shafi'is and Hanbalis on the school's view, hold that the child's taking of possession is not valid, whether he discerns or not: rather his guardian or testamentary guardian takes for him, for taking possession belongs to guardianship, and he has no guardianship over himself, so his taking of possession is not permitted in the gift just as it is not permitted in the sale.
Al-'Imrani (may Allah have mercy on him) said: al-Shafi'i said: "his father takes possession for the child." The whole of it: when someone other than the child's guardian gives him a gift: if he has a just father or grandfather, he accepts the gift and takes possession for him, for he is the one who acts on his behalf; if he is a transgressor, his acceptance and taking of possession are not valid, since he has no guardianship alongside his transgression. If he has no father or grandfather, and the supervisor of his property is the testamentary guardian appointed by them or the agent appointed by the judge, he accepts the gift and takes possession for him, for he is the one who acts on his behalf (al-Bayan fi madhhab al-imam al-Shafi'i, 8/122).
The Hanafis by juridical preference (istihsan), which is their school, and the Hanbalis on one opinion, hold that the minor's taking of possession of what is gifted to him is valid, for the taking of possession of the gift is among the purely beneficial acts: the child with reason acquires it just as his guardian and those in his care do; and likewise girls when they have reason: their taking of possession is permitted (Tuhfat al-fuqaha, 3/168; Bada'i' al-sana'i', 6/126; al-'Inayah, 12/283, 286; al-Ikhtiyar, 3/59; Tabyin al-haqa'iq, 5/95-96; al-Jawharah al-nayyirah, 4/70, 72; al-Bahr al-ra'iq, 7/288, 290; Mukhtasar al-Wiqayah, 2/105; Bidayat al-mujtahid, 2/247-248; al-Bayan, 8/122-123; al-Iqna', 2/367; Mughni al-Muhtaj, 3/493; Tuhfat al-habib on Sharh al-Khatib by al-Bujayrimi, 3/460; al-Mughni, 2/268; al-Furu', 2/485; al-Mubdi', 2/440; al-Insaf, 3/219-220; Kashshaf al-qina', 4/364).
The Hanafis said: when a stranger gives the minor a gift, the gift is completed by the father's taking of possession, for he manages what lies between harm and benefit, and pure benefit takes precedence. When property is gifted to the orphan, taking possession belongs to whoever has disposal over his property: the father's testamentary guardian, the orphan's grandfather or his testamentary guardian, for these have guardianship over the orphan, standing in the father's place; and if the orphan is in his mother's custody, meaning under her care and upbringing, her taking of possession for him is permitted, as previously stated; likewise if he is in the custody of a stranger who raises him, for the latter has a recognized hand: you see that no other stranger can wrest him from his hand, so he acquires for him what is purely beneficial, provided none of the four mentioned exists. If the child with reason takes possession of the gift himself, it is permitted by juridical preference, for the taking of possession of the gift is a purely beneficial act; by analogy the child with reason's taking of possession is not valid, for it belongs to guardianship and he has no guardianship over himself, so it is not permitted in the gift as it is not in the sale.
The husband of the young girl may take possession of what is gifted to her after consummation, for the father established him in his own place for her preservation and the taking of possession of the gift; and if the father also takes possession of it, it is valid, since he has the guardianship (Tuhfat al-fuqaha, 3/168; Bada'i' al-sana'i', 6/126; al-'Inayah, 12/283, 286; al-Ikhtiyar, 3/59; Tabyin al-haqa'iq, 5/95-96; al-Jawharah al-nayyirah, 4/70, 72; al-Bahr al-ra'iq, 7/288, 290; Mukhtasar al-Wiqayah, 2/105).
The Hanbalis said: "Zakah, the gift and the expiation may be accepted and taken possession of on behalf of the one under care by whoever manages his property: his guardian, father, testamentary guardian, judge, trustworthy agent, or the trustworthy guardian's agent." Ibn Mansur related: I said to Ahmad: Sufyan said: none takes possession for the child except the father, a testamentary guardian or a judge. Ahmad said: "Good." He was told, in Salih's narration: the mother took possession while his father was present. He said: "I do not know of taking possession by the mother; only the father does it." It is stated in al-Furu': I found no explicit statement from Ahmad that taking possession by other than the guardian in his absence is not valid, though it is the famous position in the school. The Shaykh (the author, Ibn Qudamah) mentioned that he knows of no divergence on it, then mentioned that it is possible that taking possession by his mother, a relative or others is valid in the absence of the guardian, for preserving him from loss and destruction takes precedence over observing the guardianship (al-Furu', 2/485; al-Mubdi', 2/440).
Al-Mardawi (may Allah have mercy on him) said: al-Majd mentioned that this is Ahmad's explicit text. Harun al-Hammal related: concerning minors, their guardians are given. I said: they have no guardians. He said: the one concerned with their affairs is given. Muhanna related: for the child and the insane, his guardian takes possession. I said: he has no guardian. He said: the one who stands over him is given. He then said: it is valid for the discerning one to take possession of zakah, the gift, the expiation and the like; al-Majd presented it in his commentary, saying it is the apparent sense of his words. Al-Marrudhi related: I said to Ahmad: may zakah be given to an orphan boy? He said: "Yes, it is handed to the boy." I said: I fear he will lose it. He said: "It is handed to whoever manages his affair." This is the choice of the author (Ibn Qudamah) and al-Harithi. In al-Furu': the discerning one is like the others, and from him: he is not capable of that taking of possession. Al-Majd in his commentary: the apparent sense of our companions' words is prohibition, and his taking of possession is not valid in any way, as the Qadi declared explicitly in his annotation in the book of the mukatab; and it is the apparent sense of Ahmad's words in the narrations of Salih and Ibn Mansur. In al-Qawa'id al-usuliyyah: the issue has two narrations, the more famous being that he is not capable, stated explicitly in Ibn Mansur's narration, held by most of the companions; and al-Mughni raises the possibility that the validity of his taking of possession is suspended upon the guardian's permission rather than upon acceptance (al-Insaf, 3/219-220; see al-Mughni, 2/268).
Al-Buhuti (may Allah have mercy on him) said: "For the child, only the father takes possession of the gift made by his guardian, on his own behalf, saying: 'I have gifted my son such-and-such and taken possession of it for him'; if he does not say 'and I have taken possession of it for him,' it does not suffice on the apparent sense of Harb's narration, due to the difference of the two takings: distinction is required, since the hand of the recipient here is the donor's own hand, so he might later claim it back, or the heirs might claim it as inheritance, to the child's detriment. A father who gifts his child needs no acceptance, contextual clues dispensing with it. The child's taking of possession, meaning the one who has not reached puberty, even if discerning, and the insane person's, are not valid, nor their acceptance of the gift, for lack of capacity to dispose: rather their guardian accepts and takes possession for them, for he is the one who acts for them: the trustworthy father, meaning the just one even if only outwardly, stands in their place in that; in his absence, a testamentary guardian, then a trustworthy judge or one they appoint in their place; and in the absence of the guardians, the one who manages him among the mother, the relative and others takes possession for him explicitly. Ibn al-Hakam related that Ahmad was asked: may a child give zakah? He said: 'Yes, his father or whoever manages his affair.' Al-Marrudhi related the like."
Al-Harithi said: it is the correct view: it brings benefit and is a place of need; but from the minor and the insane is valid the taking of possession of the consumable whose equivalent is given to the minor in compensation, in accordance with the hadith of Abu Hurayrah:
"When the people saw the first fruits, they brought them to the Messenger of Allah (peace be upon him). When he took them, he said: 'O Allah, bless for us our fruits,' and he gave them to the youngest of the children present."Related by Muslim (1373)
If the donor to the minor and the insane is one of the three other than the father, being the testamentary guardian or the judge, he does not take charge of both sides of the contract, unlike sale: he appoints one who accepts, unlike the father, who may take charge of both sides of the sale and take possession himself. It is stated in al-Mughni: the correct view in my sight is that the father and others are equal in this, for it is an ongoing contract issuing from him as from his agent, so taking charge of both its sides is permitted to him like the father; it differs from sale, which is a contract of exchange and profit in which suspicion attaches to the contract for oneself, whereas the gift is pure benefit with no suspicion, so taking charge of its two sides is permitted to him like the father. Al-Harithi said: and this is what I say. The prodigal is, as mentioned previously, like the minor.
If the father is not trustworthy, the judge accepts the gift for the minor and the like; if the father is insane, the judge accepts for his son; if the father has died with no testamentary guardian, the judge accepts for him, for he is then his guardian. If the father holds a circumcision feast and gifts are brought to his house, they are his, since he is the apparent recipient, unless something indicates that they are earmarked for the circumcised boy, in which case they are his, like children's clothes and the like that are specific to them; likewise if something indicates that the mother is the intended recipient of something, such as the donor being among her relatives or acquaintances: it is referred to custom (Kashshaf al-qina', 4/364-365).