The fourth pillar: the gifted thing

This part belongs to the full section: All sections of this part.

The fourth pillar: the gifted thing

The fourth pillar: the gifted thing. It is the object of the contract in the gift. The jurists agreed in general that everything whose sale is permitted, its gift is permitted too; however, they excepted some exceptions to this criterion, as will come.

The Malikis said: the gift is valid in everything owned by the donor, whether a corporeal thing or a benefit transferable by the Law, such as the house, the garment and their uses; not what does not admit of transfer, such as the enjoyment of the wife and the umm walad, or pre-emption; even if the thing were unknown, or a dog whose keeping is permitted, or a runaway slave, or a debt (Sharh Mukhtasar Khalil, 7/102-103; al-Sharh al-kabir with Hashiyat al-Dardir, 5/490, 493; al-Taj wa-al-iklil, 5/5-6; Mawahib al-Jalil, 8/8; Tahrir al-Mukhtasar, 5/3-4; al-Bahjah fi Sharh al-Tuhfah, 2/394; al-Sharh al-saghir, 9/203).

The Shafi'is said: everything whose sale is permitted, its gift is permitted all the more, for its scope is wider; and everything whose sale is not permitted, such as the unknown, the property usurped by one unable to seize it, the lost and the runaway, its gift is not permitted, upon the common criterion that it is a transfer of ownership during life; this is the predominant view, except the two grains of wheat and the like of trivial things, whose sale is prevented but whose gift is valid by agreement, since there is no harm in a person giving the trivial in charity, as appears from the report from the Prophet (peace be upon him) (Rawdat al-Talibin, 4/187; al-Najm al-wahhaj, 5/547; Kunz al-raghibin, 3/273; Mughni al-Muhtaj, 3/491; Tuhfat al-muhtaj, 7/570, 572; Nihayat al-Muhtaj, 5/469; al-Dibaj, 2/540).

The Hanbalis said: whatever is validly sold among the corporeal things, its gift is valid, for it is a transfer of ownership during life: it is therefore valid in what admits of sale; what is not validly sold, its gift is not valid (Sharh Muntaha al-iradat, 4/401; Kashshaf al-qina', 4/369; al-Rawd al-murbi', 2/187).

The Hanafis said: the gifted thing must be property of legal value, so the gift of what is not property at all is not permitted, such as carrion, blood, the game of the sacred state, the pig and the like, as stated in the book of sales; nor the gift of what is not property in any case, such as the umm walad, the absolute mudabbar and the mukatab, being free in one respect; for this reason their sale is not permitted; nor the gift of what has no legal value, such as wine, whose sale is not permitted for this reason (Bada'i' al-sana'i', 6/119; al-Fatawa al-Hindiyyah, 4/374; Ibn Abidin, 8/423).

First condition: the gifted thing must exist

The jurists differed over the gifted thing: is it required to exist at the time of the gift or not? The majority of the jurists (Hanafis, Shafi'is, Hanbalis) hold that the validity of the gift requires the gifted thing to exist at the time of the contract, for it is a transfer of ownership in the present; the gift of the non-existent, meaning what does not exist at the time of the gift, is therefore not valid, as when he gifts what his palm will yield this year, or what his flock will bear this year; for the gift is a contract of transfer during life, so none of this is valid, like the sale; and because the gift is a transfer in the present, and the transfer of the non-existent is impossible (al-Mabsut, 12/71-72; Bada'i' al-sana'i', 6/119; al-Bahr al-ra'iq, 7/287; al-Jawharah al-nayyirah, 4/68; Ibn Abidin, 8/423; al-Fatawa al-Hindiyyah, 4/374; al-Najm al-wahhaj, 5/547; al-Mughni, 5/384; al-Insaf, 7/133; Kashshaf al-qina', 4/370; Sharh Muntaha al-iradat, 4/390; Mutalib Uli al-Nuha, 4/377).

The Malikis and the Shaykh of Islam Ibn Taymiyyah permit the gift of the non-existent. Ibn Rushd (may Allah have mercy on him) said: "There is no divergence in the school concerning the permissibility of the gift of the unknown and the non-existent whose existence is expected" (Bidayat al-mujtahid, 2/247). It is stated in al-Mudawwana: "I said: what do you say of one who gifts another what his slave girl will bear within ten years: is this gift permitted or not? He said: I heard nothing from Malik on this; but I heard Malik say, concerning one who gifts a man the fruit of a palm for twenty years, or less or more, that it is permitted if the recipient takes possession of the palm, or it is placed with the one who keeps it for him. Likewise the slave girl: if he took possession of her or she was placed for him with the one who keeps her for him, that is permitted, like the palm; if he did not take possession of her until her master died or she was placed in his possession, the gift is void. I said: the gift in this, and charity, and manumission (hibs), are they all alike? He said: Yes, when he takes possession of it, it is permitted" (al-Mudawwana al-kubra, 15/124).

The Shaykh of Islam Ibn Taymiyyah (may Allah have mercy on him) said: "The gift of the non-existent is permitted, as when he gifts him the fruit of his tree this year, or for ten years" (Majmu' al-fatawa, 31/270).

Second condition: the gifted thing must be known (invalidity of the gift of the unknown)

The jurists differed over the gift of the unknown, such as when a man gives his share in another man's inheritance, or his share in a house whose extent he does not know, or the fetus in the womb, or the milk in the udder, or when he says "I gift you one of the two garments": is it valid or not? The majority of the jurists (Hanafis, Shafi'is, Hanbalis, with a detail among the latter) require the gifted thing to be known, so the gift of the unknown is not valid, for it is a contract of transfer that may not be suspended upon conditions, and is therefore not valid in the unknown, like the sale (Bada'i' al-sana'i', 6/119; al-Bahr al-ra'iq, 7/287; al-Jawharah al-nayyirah, 4/68; Ibn Abidin, 8/423; al-Fatawa al-Hindiyyah, 4/374; Durrar al-hukam, 2/343; al-Bayan, 8/121; Rawdat al-Talibin, 4/187; al-Najm al-wahhaj, 5/547; Kunz al-raghibin, 3/273; Mughni al-Muhtaj, 3/491; Tuhfat al-muhtaj, 7/572; Nihayat al-Muhtaj, 5/471; al-Dibaj, 2/540; al-Mughni, 5/384; al-Sharh al-kabir, 6/263-264; al-Insaf, 7/133; Kashshaf al-qina', 4/370; Sharh Muntaha al-iradat, 4/390; Mutalib Uli al-Nuha, 4/377; al-Ifsah, 2/57-58).

The Shafi'is said: the gift of the unknown, such as "I gift you one of the two slaves or one of the two garments," is not valid, as its sale is not. They excepted some cases, among them:

• when the heirs do not know the share of each of them in the inheritance, as when the deceased leaves two children, one of whom is a hermaphrodite;
• if those between whom the property was suspended settle on equality or inequality, it is permitted, and mutual gifts must then pass between them, and those gifts occur only with unknownness, which is tolerated out of necessity;
• if the pigeons of two towers became mixed and the owner of one gave his share to the other: it is valid on the correct view, even though unknown in quantity and description, out of necessity; and the like if his wheat became mixed with another's, or his oil, or his fruit;
• the wool and the milk of the sheep set aside as a sacrificial animal;
• if one says: "You are at liberty over what you take of my property, or give, or eat": he may eat but not take or give, for eating is a license, valid though unknown, unlike the two;
• if he says: "I gift you all my property, or half my property," it is valid if the property, or its half, is known to them both, otherwise not; for its sale is not valid, and whatever cannot be validly sold, its gift is not valid.

Ibn Qudamah (may Allah have mercy on him) said: "Ahmad said in the narrations of Abu Dawud and Harb: the gift of the unknown is not valid. And he said in Harb's narration: if he says 'I gift you a sheep from my flock,' it is not permitted, and al-Shafi'i said the same. It may be understood that if the unknownness is on the donor's side, it prevents validity, being gharar against him; if it is on the recipient's side, it does not prevent it, for there is no requirement of his knowledge of what is gifted to him, like the legatee." Malik said: the gift of the unknown is valid, for it is a gratuitous act: it is valid in the unknown like the vow and the bequest. The apparent sense of the first view is that it is a contract of transfer that may not be suspended upon conditions, and is therefore not valid in the unknown, like the sale, unlike the vow and the bequest (al-Mughni, 5/387).

The correct view among the Hanbalis: the unknown gifted thing is sometimes impossible to know and sometimes not. If its knowledge is impossible, as with oil mixed with oil, or sesame or flour mixed with other flour, and one of them gifts the other what he owns of one of the two mixtures, or the property of two becomes mixed in a way that cannot be distinguished and one gifts his companion his share: it is valid out of necessity, like the settlement on the correct view of the school. The apparent sense of Ibn Qudamah's words and most of the companions is that it is not valid, from their unrestricted statement of the invalidity of the gift of the unknown, which is the apparent sense of the two narrations of Abu Dawud and Harb cited in Ibn Qudamah's words. If its knowledge is not impossible, as with the fetus in the womb, the milk in the udder and the wool on the back, the correct view of the school is that the gift is not valid, for the unknownness and the impossibility of delivery; and whenever the owner of a sheep permits a person to shear its wool and milk it, it is a license for its wool and milk, not a gift.

If he says: "Take from this bag what you wish," he may take what fills it entirely; if he says: "Take from these dirhams what you wish," he may not take them all, for the bag is a container: if he takes the container, it is well said "he took from the bag what is in it," but it is not well said: "I took from all these dirhams" (al-Mughni, 5/384; al-Sharh al-kabir, 6/263-264; al-Insaf, 7/132-133; Kashshaf al-qina', 4/359, 370; Sharh Muntaha al-iradat, 4/390; Mutalib Uli al-Nuha, 4/377; al-Rawd al-murbi', 2/180; Manar al-sabil, 2/347).

The Malikis, the Shaykh of Islam Ibn Taymiyyah and al-Harithi permit the gift of the unknown. The Malikis said: "The gift is valid in everything transferable, even if unknown in identity, in quantity, or in one of the two, even if it contradicts his supposition by its abundance, on the authoritative view: as when he gifts or gives in charity his inheritance from so-and-so, supposing it to be little when it is much; or gifts him what is in his pocket, supposing it to be one dirham because he never puts more in it, and finds in it ten muhabbar (gold coins): there is no retraction on the correct view of the school, as Ibn Abd al-Hakam said. Ibn al-Qasim said: he may retract his gift. Al-Dardir said: it is a weak view" (Hashiyat al-Dardir with al-Sharh al-kabir, 5/490, 492).

Al-Mawwaq (may Allah have mercy on him) said: "Muhammad (Ibn al-Hakam) related the consensus on the permissibility of the gift of the unknown." It is stated in al-Mudawwana: whoever gifts what he will inherit, not knowing how much: it is permitted, and gharar in the gift, which is not compensated, is permitted (al-Taj wa-al-iklil, 5/6; see al-Kafi, p. 529; al-Bayan wa-al-tahsil, 13/423; al-Ishraf 'ala nukt masa'il al-khilaf, 3/264-265, no. 1108; Sharh Mukhtasar Khalil, 7/102-103; Mawahib al-Jalil, 8/8; Tahrir al-Mukhtasar, 5/3-4; al-Bahjah fi Sharh al-Tuhfah, 2/394; al-Sharh al-saghir, 9/203; the commentary on Sahih al-Bukhari, 6/579).

The rule with the Malikis is that gharar has no effect in the chapter of gratuitous acts. Imam al-Qarafi (may Allah have mercy on him) set out the twenty-fourth difference between the rule in which unknownness and gharar produce their effect and the rule of the transactions in which they do not:

• Sound hadiths came prohibiting his sale of gharar and the sale of the unknown, whereupon the scholars differed: al-Shafi'i generalized it to all transactions, prohibiting unknownness in the gift, charity, debt remission, khul' and settlement and the like; Malik, however, distinguished between the rule where gharar and unknownness are avoided, the chapter of exchanges and transactions aimed at increasing wealth, and the rule where they are not avoided, that which is not aimed at that.
• The transactions divide, in his view, into three categories: two sides and an intermediary. The first side is pure exchange: gharar is avoided therein, except what necessity and custom call for; and just as unknownness divides into three types, so gharar and hardship do.
• The second side is pure beneficence with no aim of increasing wealth: charity, the gift, debt remission. These acts are not aimed at increasing wealth: if they are lost upon the one thus favored, he suffers no harm, having spent nothing, unlike the first category, where the wealth spent as counterpart is lost through gharar: the wisdom of the Law therefore prohibited unknownness therein; as for pure beneficence, there is no harm in it: the wisdom of the Law urged expanding it by every means, in the known and the unknown, for that is easier given the certain frequency of its occurrence, while prohibiting it would be a means of reducing it. If he gifts him his runaway slave, he may find him: he gains a benefit with no harm, having spent nothing: this is a beautiful fiqh.
• Moreover, the hadiths did not come covering these categories so that one could infer a contradiction with the texts of the Lawgiver: they came concerning sale and the like.
• The intermediary between the two sides is marriage: wealth is not the aim in it, but affection, intimacy and tranquility, which would suggest that unknownness and gharar are permitted in it absolutely; on the other hand, the Lawgiver required wealth in it through the saying of the Most High: "...seeking by means of your wealth" (Surah An-Nisa, 24), which entails that unknownness and gharar are prohibited in it. Malik therefore distinguished: he permits in it little gharar, not much: an unspecified slave, or the furnishings of a house; not the runaway slave nor the strayed camel, the first reverting to the customary middle measure, the second having no criterion, so it was prohibited. Khul' was attached to the first of the two sides, in which gharar is not permitted absolutely, for conjugal protection and its release are not of what is sought in exchange, but belong to the nature of divorce, which may take place without anything: it is like the gift.

This is the difference between the two rules and the criterion of the two chapters, and the fiqh with Malik (may Allah have mercy on him) therein (al-Furuq, 1/347-349).

The Shaykh of Islam Ibn Taymiyyah (may Allah have mercy on him) was asked about one who gifts a man, or makes lawful to him, an unknown thing: is it valid, as if he made lawful to him the fruit of a tree for the year? And if he wishes to retract, is it valid? He answered: "The scholars disputed the gift of the unknown: Malik permitted it, to the point of permitting one to gift another what he inherits from so-and-so even without knowing its extent, without knowing whether it is a third or a quarter; likewise if he gifts him a share of a house without knowing which; likewise the gift of the non-existent is permitted, as when he gifts him the fruit of his tree this year or for ten years. Al-Shafi'i did not permit that; likewise it is well known in the schools of Abu Hanifah and Ahmad that it is prohibited; but Ahmad and others permit in settlement over the unknown and its debt remission what al-Shafi'i does not permit; Abu Hanifah too permits of that what al-Shafi'i does not: al-Shafi'i requires knowledge of the extent of the object of the contract in most contracts, likewise the compensation of khul', the dower, and what is stipulated upon the People of the Book; most of the scholars are more expansive in this, and it is mentioned in its place; and Malik's school in this is the weightiest."

"This issue is connected to another origin: the contracts of exchange, such as sale, marriage and khul', are binding before taking possession: taking possession is what executes the contract, its content not being a condition of its bindingness; and the gratuitous acts, such as the gift and the loan: in Abu Hanifah's and al-Shafi'i's view they become binding only through taking possession; in Malik's view they are binding by the contract; in Ahmad's school there is dispute like the dispute over the specific item: does the contract bind, or is taking possession required? He has two narrations on it; and likewise in some forms of the loan. The predecessors never ceased lending the tree and granting the manayih (rights of milking and gathering), likewise the gift of fruit and milk not yet in existence, and they considered it binding; yet this resembles the loan, for the object of the contract comes about gradually like the benefit; for this reason it is among what the beneficiary is entitled to, like the benefits, and for this reason the watering contract (musaqah) is valid with a part of it. As for making it lawful, there is no dispute among the scholars: the same whether what he makes lawful is non-existent or existent, known or unknown; but the license is not a binding contract like the loan, for one who does not hold the loan binding, like Abu Hanifah and al-Shafi'i; as for Malik, he holds it binding if it is conditioned or marked by custom; and in Ahmad's school there is dispute and detail" (Majmu' al-fatawa, 31/270-271). He also said: "The gift of the non-existent, such as the fruit and milk of the year, is valid; requiring the capacity to deliver here is questionable, unlike the sale; the gift of the unknown is valid, as in his saying: 'Whatever you take of my property is yours,' or 'whoever finds something of my property, it is his'; in all these forms ownership is acquired by taking possession and the like, and the one granting may retract before ownership is acquired; this is a kind of gift in which acceptance comes long after the offer, and it is not a mere license; and the sending of the woman's trousseau to her husband's house is a transfer of ownership" (al-Fatawa al-kubra, 4/515).

Third condition: the gifted thing must be property of legal value

Property of legal value (mutaqawwim) is what is property in the view of the Law, having a value for which it is guaranteed upon destruction. The generality of the jurists required the gifted thing to be property of legal value: the gift of what is not property at all is therefore not valid, such as carrion, blood and the pig; nor the gift of what has no legal value, such as wine; and likewise everything prohibited by the Law: its gift is not permitted (Bada'i' al-sana'i', 6/119; al-Fatawa al-Hindiyyah, 4/374; Ibn Abidin, 8/423; Rawdat al-Talibin, 4/187; al-Najm al-wahhaj, 5/547; Kunz al-raghibin, 3/273; Mughni al-Muhtaj, 3/491; Tuhfat al-muhtaj, 7/572; Nihayat al-Muhtaj, 5/471; Sharh Muntaha al-iradat, 4/390; Kashshaf al-qina', 4/359; Mutalib Uli al-Nuha, 4/399).

Fourth condition: that the gifted thing be owned by the donor; fifth condition: the gift of the undivided share (musha')

The Hanafis explicitly stated that the gifted thing must be owned by the donor himself, so the gift of ownerless things is not permitted, for the gift is a transfer of ownership, and transferring what is not owned is impossible (Bada'i' al-sana'i', 6/119; al-Fatawa al-Hindiyyah, 4/374; Ibn Abidin, 8/424).

The fifth condition: that the gifted thing be taken into possession, and this is the gift of the undivided share (musha'). The jurists differed over the gifted thing: is it required to be possessed, so that the gift of the undivided is invalid, or not required, it being valid? The majority of the jurists (Malikis, Shafi'is, Hanbalis) hold that the gift of the undivided is valid and that taking possession of it is possible as sale is permitted in it, whether the undivided share is divisible, like houses and lands, or indivisible, like the slave, the garments and the jewels; and whether it is taken by vacating the place or by moving and transporting it.

Their proof is the saying of the Most High:

"If they willingly give up any part of it (the dower), then enjoy it pleasantly and with ease"

Surah An-Nisa, 4

In this verse is the proof of the permissibility of the gift of the undivided in what is divided, for Allah the Most High permitted therein transferring to him half of the obligatory share after divorce, without distinguishing what is a specific item or a debt, nor what bears division or not: the ruling of the verse therefore requires the permissibility of the gift of the undivided.

And their proof: when the delegation of Hawazin came seeking from the Messenger of Allah (peace be upon him) the return of what he had taken from them as spoils, the Messenger of Allah (peace be upon him) said:

"As for what belonged to me and to the sons of Abd al-Muttalib, it is yours." And his share in that was an undivided, unspecified share.Hasan hadith: related by Abu Dawud (2694), al-Nasa'i (3688) and Ahmad (6729)

And by what al-Bukhari related in the chapter on the gift of one person to a group: Asma said to al-Qasim ibn Muhammad and Ibn Abi 'Atiq: "I inherited from my sister Aisha property in the forest, and Mu'awiyah gave me a hundred thousand for it: it is for you both." He then related from Sahl ibn Sa'd (may Allah be pleased with him):

"A drink was brought to the Prophet (peace be upon him); he drank, having a young boy at his right and the elders at his left. He said to the boy: 'Do you permit me to give them (my share)?' The boy said: 'I would not prefer my share to anyone over you, O Messenger of Allah.' He then poured it into his hand."Related by al-Bukhari (2462)

The Prophet (peace be upon him) thus asked the boy to give the elders his share of the drink, and his share in it, as is known, was not individualized: it was an undivided share in the drink, not separated in the cup, with no knowing what he drank of what was left for the elders; and because whatever sale permits, its gift is permitted (the commentary on Sahih al-Bukhari by Ibn Battal, 7/120, 122; al-Tamhid, 7/238; al-Kafi, p. 529; al-Qawanin al-fiqhiyyah, p. 241; al-Hawi al-kabir, 7/534; Ahkam al-Qur'an by Ibn al-'Arabi, 1/297; al-Taj wa-al-iklil, 5/18; al-Ifsah, 2/52-53; Rawdat al-Talibin, 4/187; al-Najm al-wahhaj, 5/547; al-Sharh al-kabir, 6/261-262; al-Mubdi', 5/366; al-Insaf, 7/131; Sharh Muntaha al-iradat, 4/401; Kashshaf al-qina', 4/368; Mutalib Uli al-Nuha, 4/388; Fath al-Bari, 5/225-226).

As for how to take possession, Ibn Abd al-Barr (may Allah have mercy on him) said: "They differed over the gift of the undivided and how possession is taken of it. Malik said: the gift of the undivided is permitted, but it is not valid without the taking of possession by all; it is valid for the partner in the undivided when the donor vacates it and the recipient takes it from his hand, alone in possessing it. Al-Shafi'i, Abu Thawr, Ahmad and Ishaq said: the gift in the undivided is valid, its taking of possession being like that in the sale. Abu Hanifah and his companions said: the gift of the undivided is void; it is valid only taken into possession, known and individualized, as the pledge is with them: the pledgee individualizes and takes possession; likewise the recipient, with no sharing with another" (al-Istidhkar, 7/232).

The Hanafis said: the undivided share is either divisible, like houses and lands, in which case its gift is not valid; or indivisible, like the gift of half a slave, half a garment or half a jewel, in which case its gift is permitted, provided he gifts a named part and delivers it by vacating the place. This is because necessity touches upon permitting the gratuitous act in what does not bear division: otherwise people would be straitened, this kind of transaction being barred to them in what does not admit of division at all, unlike what admits of division, where the transaction is deferred to the time of division without being voided in itself, so necessity is not established in it.

Their proof: it is the consensus of the Companions. Abu Bakr (may Allah be pleased with him) said, during his fatal illness, to Aisha (may Allah be pleased with her): "The dearest of people to me in ease are you, and the heaviest upon me in hardship are you. I had gifted you twenty wasq of skins of my property at al-'Aliyah, and you had neither taken possession of them nor seized them; but today it is the heir's property" (a sahih hadith, cited previously). The Siddiq (may Allah be pleased with him) took account of taking possession and value in the gift for the establishment of ownership: possession in language is the gathering of a scattered thing into a space, which is the meaning of division, for the common shares before division were scattered, and division gathers each share into a space.

Umar (may Allah be pleased with him) said: "What is the matter with one of you gifting his child a gift he neither takes possession of nor divides, saying: if I die, it is his, and if he dies, it returns to me? By Allah, none of you shall gift his child a gift he neither takes possession of nor divides, but that when he dies I make it an inheritance for his heirs."Sahih hadith: related by Malik in al-Muwatta (1439) and al-Bayhaqi in al-Sunan al-kubra (11729)

The possession intended here is the taking of possession: he mentioned it opposite division so as to avoid repetition, thereby excluding that the gift effects ownership without taking of possession or division. It is related from Ali (may Allah be pleased with him) that he said: "Whoever gives the third or the quarter of such-and-such: it is not valid until he has shared it with the recipient," all of it before an assembly of Companions of the Messenger of Allah (peace be upon him), and it is not related that any objector disavowed them: it is therefore a consensus.

And because the taking of possession is the condition of this contract's validity, and commonality of shares prevents the taking of possession: the meaning of possession is the capacity to dispose of what is taken, and disposing alone of the common half is inconceivable: dwelling in half the house is shared, and wearing half a garment is inconceivable; he cannot dispose of it by disposing of the whole, since the contract did not encompass the whole. Likewise the indivisible undivided share: the meaning of possession is not realized there, as we said, except out of necessity, for part of it is needed to be gifted, and the gift has no ruling without taking of possession; commonality prevents the possession enabling disposal, and there is no way to remove the impediment through division, since the locus does not bear it: necessity has therefore reached permissibility, by establishing the form of vacating the place in place of the possession enabling disposal; whereas here there is no necessity, since the locus bears division, and the impediment to the enabling possession may be removed by division.

Or we say: the Companions (may Allah be pleased with them) required absolute taking of possession, and the absolute refers to the complete; the taking of possession of the undivided is deficient, existing in form without existing in meaning, as we explained; form sufficed in the indivisible undivided share out of the necessity we mentioned, and there is no necessity here, so completeness of the taking of possession is required, and it is not found in the undivided share. And because the gift is a gratuitous contract: were it valid in a divisible undivided share, it would become a contract of guarantee, for the recipient could demand the donor's division, obliging him to guarantee the division: this would alter the sacred law; therefore ownership in the gift is suspended upon taking of possession: were he to acquire ownership by the contract alone, he would have the right to demand delivery, which would amount to imposing guarantee in a gratuitous contract: an alteration of the sacred law; unlike the indivisible undivided share, where imposing guarantee upon the benefactor is inconceivable, for the guarantee is that of division, and the locus does not bear division: this is the difference.

Al-Kasani (may Allah have mercy on him) said: "If he divides what he gifted, individualizes it, then delivers it to the recipient, it is permitted: for the gift of the undivided, in our view, is a concluded contract whose effect is suspended upon division, and the taking of possession after division is the correct view: commonality does not prevent the contract's pillar nor its ruling, which is ownership, nor the other conditions, except the possession enabling disposal; so when he divides and takes possession, the impediment to effect has gone and it takes effect. The hadith of the Siddiq (may Allah be pleased with him) does not indicate otherwise, for he said to Aisha (may Allah be pleased with her): 'I had gifted you twenty wasq of skins of my property,' and that was a gift of the undivided in what is divisible, for nihl is among the words of the gift; had the contract not been concluded, the Siddiq (may Allah be pleased with him) would not have done it, for he would not have concluded a void contract. The Siddiq's (may Allah be pleased with him) words therefore indicate the conclusion of the contract in itself and the suspension of its ruling upon division and taking of possession: this is exactly our school, and Allah knows best."

Likewise, if he gives half his house to a man without delivering it to him, then gives him the other half and delivers it to him in its entirety: it is permitted. If he delivers half of it by vacating the whole, then gifts the other half and delivers it, the gift is not permitted, for each of the two is a gift of the undivided, and the gift of the divisible undivided does not take effect except by division and delivery. The answer is the same whether the gift of the undivided comes from a stranger or from his partner: all of that is permitted, in accordance with the saying of a group of Companions (may Allah be pleased with them):

"The gift is not valid unless taken into possession and possessed," without distinction.Saying related from a group of Companions (may Allah be pleased with them)

For the impediment is the commonality at the time of taking possession, and it occurred. Upon this divergence, the charity of the divisible undivided share is not permitted in our view, contrary to al-Shafi'i (may Allah have mercy on him). The apparent sense of his view: commonality does not prevent the ruling of the transaction, which is ownership, nor its condition, the taking of possession, nor its permissibility. Our argument: the taking of possession is the condition of charity's validity, and its meaning is not realized, or not completed, in the shared thing, as we explained for the gift; and because charity is a gratuitous act like the gift: validating it in the undivided would make it a contract of guarantee, altering the sacred law, as we explained for the gift. If two persons give something divisible from one man's property, such as the house, the dirhams, the dinars and the like, and both take possession of it: it is not permitted with Abu Hanifah and permitted with Abu Yusuf and Muhammad; they agreed that if two men give something divisible from one man's property and take possession of it, it is permitted. Abu Hanifah thus considers commonality at the time of taking possession, while the two consider it at both the contract and the taking of possession: Abu Hanifah does not permit the gift of one of the two because of commonality at the time of possession, while the two permit it, commonality not existing in either case, one existing without the other; and they permit the gift of the two from one (Bada'i' al-sana'i', 6/120-121; al-Mabsut, 12/74; Ahkam al-Qur'an, 2/151; Mukhtasar Ikhtilaf al-'ulama', 4/139; Tabyin al-haqa'iq, 5/93; al-'Inayah, 12/277-279; al-Jawharah al-nayyirah, 4/64-65; al-Bahr al-ra'iq, 7/286).

Sixth condition: that the gifted thing be distinct from others and not connected to them

The jurists differed over the gifted thing: is it required to be distinct from other things and not connected to them, like the wool on the animal, or not required, the gift of the wool on the animal being valid? The Malikis, the Shafi'is and the Hanbalis on one opinion hold that distinctness is not required: the gift is valid even if the thing is not distinct from others and even if connected to them, like the wool on the animal's back. The Shaykh of Islam Ibn Taymiyyah (may Allah have mercy on him) said: "It appears to me that the gift of the wool on the back (of the animal) is valid, on a single opinion" (al-Fatawa al-kubra, 4/515; al-Dhakhirah, 6/231; al-Insaf, 7/131; Sharh Muntaha al-iradat, 4/401; Rawdat al-Talibin, 4/187; Mughni al-Muhtaj, 3/492).

The Hanafis, and the Hanbalis on the school's view, hold the invalidity of the gift of the wool on the animal's back, for the unknownness and the impossibility of delivery. The Hanafis said: validity of the gift requires that the gifted thing not be connected to what is not gifted by the connection of parts, for the taking of possession of the gifted thing alone is inconceivable, and the other is not gifted, so this is in the meaning of the undivided share. Upon this falls the case of one who gifts land with its crop without the crop, or a tree with its fruit without the fruit, or the crop without the land, or the fruit without the tree, leaving the recipient free to take them: it is not permitted, for the gifted thing is connected to what is not gifted by a part-to-part connection, which prevents the validity of taking possession. If he cuts the fruit and harvests the crop, then delivers it empty, it is permitted, for the impediment to effect, namely the establishment of ownership, has gone. If he joins the two in the gift, gifting them together and delivering them separately, it is permitted; if he separates them in the gift, gifting each of the two by a separate contract, gifting the land then the crop, or the crop then the land: if he joins them in the delivery, the gift of the two is permitted; if he separates, the gift of the two is not permitted, whether he advances or delays; unlike the first case, where the impediment to the validity of possession is the connection, which does not change, whereas there the impediment is the work, which does change. The like of this is one who gives half a house as an undivided share without delivering it until he gives the remaining half and delivers the whole: it is permitted; if he gives the half and delivers it, then gives the rest and delivers it: it is not permitted, and the same applies here.

Upon this falls the gift of milk in the udder or wool on the back of the flock: it is not permitted, for the connection of these things is like commonality, the gifted thing being connected to what is not gifted, which prevents the validity of taking possession; likewise if he gives it from his partner: the impossibility of taking possession; but if he shears the wool and delivers it to him, it is permitted, the impediment having gone. Likewise: one who gifts a riding animal with its load, without the load: it is not permitted; if he removes the load and delivers it empty, it is permitted. Unlike the gift of what is in his slave girl's womb, or in his flock's wombs or udders, or the gift of butterfat in milk, sesame oil, olive oil or flour in wheat: it is void even if he hands over the animal at the time of birth or of extraction, for the gifted thing there is not the object of the contract, being non-existent; its sale is therefore not permitted, nor its gift; unlike the preceding (Bada'i' al-sana'i', 6/125-126; al-Ikhtiyar, 3/60; al-Jawharah al-nayyirah, 4/66-68; al-Fatawa al-Hindiyyah, 4/380).

The Hanbalis on the school's view: "The gift of the unknown whose knowledge is not impossible is not valid, like the fetus in the womb, the milk in the udder and the wool on the back, for the unknownness and the impossibility of delivery; and whenever the owner of a sheep permits a person to shear its wool and milk it, it is a license for its wool and milk, not a gift. And if he gifts the oil of his sesame (the shayraj before pressing), the oil of his olives or their pressed cakes before pressing them, it is not valid, like the milk in the udder, and more fittingly still due to the effort of pressing" (al-Mubdi', 5/366; al-Insaf, 7/131; Kashshaf al-qina', 4/370).

Disputed objects: 1. The gift of the benefit (usufruct)

Among the things over which the jurists differed regarding the validity of their gift:

1. The gift of the benefit: such as one who owns a house and says to another: "I gift you dwelling in it for a month": is it regarded as a gift or a loan of use ('ariyyah)? The Hanafis (with detail), the Malikis and the Shafi'is on one of the two views, the adopted one, hold that the gift of the benefit is valid, ownership being acquired by using it, and the benefit held as a trust in his hand.

The Hanafis said: if he says: "I have carried you upon this beast," it may be gift or loan: it may bear the transfer of the thing and the transfer of benefits, so intention is required to determine. If he says: "I have granted you this thing in favor (minhah)," or: "This thing is yours as a favor," there are two cases: the thing is either of those one may use without consuming, or of those one may use only by consuming.

• If it is among what may be used without consuming, like the house, the garment, the beast and the land: "This house is yours as a favor," or this garment, this beast, this land: it is a loan of use, for the favor consists originally in the gift of the benefit or its like, and it was referred to what may be used without consuming: dwelling, wearing, riding, cultivating; the land's benefit being its cultivation, this is a transfer of the benefit without compensation, which is the definition of the loan of use. Likewise if he says of a white land: "This land is yours for food": it is a loan of use, for the land itself is not eaten; rather what comes out of it is eaten: the land's food is therefore its cultivation; its owner may take it back while there is no crop on it; if there is a crop, analogy gives him the right to uproot, like the building and the planting; by juridical preference it is left until harvest time, for a wage like the measure.
• If he grants him a milking ewe, a milking she-camel or a milking cow as a favor: "This ewe is yours as a favor," this she-camel or this cow: it is a loan of use, and he may benefit from their milk, for milk, though a thing in reality, is counted among the benefits by custom and usage, so it takes the ruling of the benefit, as if he permitted him to drink their milk; likewise if he grants him a kid or a young goat: a loan of use, the kid being liable to become a sire and the young goat a milker.
• If he meant by the favor the gift in these cases, it stands as he meant: he intended what his wording bears, and he imposes hardship upon himself.
• If it is among what may be used only by consuming, like food, drink, dirhams and dinars: "This food is yours as a favor," or this milk, these dirhams, these dinars: it is a gift, for the favor referred to what may be used only by consuming cannot be borne as a gift of the benefit: it is borne as a gift of the thing, that is, its transfer; the transfer of the thing in the present without compensation is the definition of the gift, when the offer is unqualified by any contextual clue.
• If it is joined to a clue, the clue is either a time, a condition, or a benefit: "My house is yours for dwelling," "my slave is yours for dwelling," "a charity for dwelling," "a gift for dwelling," "a dwelling as gift," or "it is yours, my slave, as a loan of use," with delivery: all of that is a loan of use; for the mention of dwelling in "my house is yours for dwelling" shows he intended the transfer of benefits: "this is yours," though apparently a transfer of the thing, bears the transfer of benefits, for the attribution to the borrower and the lessee is a benefit by custom and law. "Dwelling" is a term reserved for the benefit, so it is explanatory of the ambiguous, showing he intended the transfer of benefits; and the transfer of benefits without compensation is the definition of the loan of use. Likewise "dwelling" after the mention of the gift is an explanation of the gift: "gift" may bear the gift of the thing and the gift of benefits; by saying "dwelling" he specified the gift of benefits. "A dwelling as gift": its meaning is that the house's dwelling is a gift to you: a gift of the benefit, the definition of the loan of use.
• If he says: "It is yours, my slave, that you dwell in it," or "a gift that you dwell in it," or "a charity that you dwell in it," with delivery: it is a gift, for he did not explain the gift by the dwelling as an explanatory attribute: rather he gifted the house and then consulted him over what to do with his property, and consultation over another's property is void, so the gift attached to the thing. "That you dwell in it" is like "so that you dwell in it," as if he said: "I gift it to you that you lease it"; "it is yours, you dwell in it" is also a gift: the attribution with the letter lam to one capable of ownership for transfer; and "you dwell in it" is a consultation, as stated (Bada'i' al-sana'i', 6/116-118; al-Mabsut, 12/96-97; al-Bahr al-ra'iq, 7/285; Ibn Abidin, 8/493; al-Fatawa al-Hindiyyah, 4/363; Durrar al-hukam, 2/201; Sharh Mukhtasar Khalil, 7/102; al-Taj wa-al-iklil, 5/5-6; the commentary of Mayyarah, 2/270; Mughni al-Muhtaj, 3/491; al-Iqna', 2/365-366; Hashiyat 'Umayrah, 3/273).

The Hanbalis and the Shafi'is on the second view hold that the gift of benefits is not valid: it is not a transfer of ownership, the benefits gifted being a loan of use (Mughni al-Muhtaj, 3/491; al-Iqna', 2/365-366; Hashiyat 'Umayrah, 3/273; al-Mughni, 5/204; al-Mubdi', 5/370; al-'Uddah Sharh al-'Umdah, 1/266; Kashshaf al-qina', 4/373; Sharh Muntaha al-iradat, 4/405; Mutalib Uli al-Nuha, 4/399; al-Rawd al-murbi', 2/183).

Imam Ibn Hajar al-Haytami (may Allah have mercy on him) was asked: is the gift of benefits valid? He answered: "Our companions have two views. The first: it is a loan of use of the house: its benefits are not transferred, it being only a license. The second: it is a gift: the property is then held in trust, and the house is not guaranteed if it perishes under his hand." Al-Zarkashi, following al-Mawardi, preferred the first; al-Bulqini, like al-Subki, preferred the second.

The skin of the carrion, the skin of the sacrificial animal, exploitable impurities

The Shafi'is on the soundest view and the Hanbalis on one opinion hold the validity of the gift of the carrion's skin before tanning, and likewise of every impurity that may be benefited from: the gift being lighter than sale (Rawdat al-Talibin, 4/187; Mughni al-Muhtaj, 3/491; Sharh I'anat al-Talibin, 3/278; al-Kafi, 2/466; al-Sharh al-kabir, 6/262; al-Insaf, 7/131; Sharh Muntaha al-iradat, 4/401; Kashshaf al-qina', 4/369; Manar al-sabil, 2/347).

4. The gift of the sacrificial animal's skin: the Malikis explicitly permit it: the prevention of its transfer by a specific means, sale, does not entail its prevention by all means, namely the gratuitous act (al-Sharh al-kabir with Hashiyat al-Dardir, 5/492; Sharh Mukhtasar Khalil, 7/103). The Shafi'is: the gift of the sacrificial animal's skin is not valid, nor its meat, like its sale, unlike giving it in charity (Tuhfat al-muhtaj with Hashiyat al-Shirwani, 7/575).

5. The gift of exploitable impurities: the Shafi'is on one view, and the Hanbalis on one opinion, which is the choice of Ibn Qudamah and al-Harithi, hold the validity of the gift of what its use is permitted among the impurities: it is a gratuitous act, permitted therein like the bequest, and the transfer of the hand over these things is permitted as in the bequest. Ibn Qudamah (may Allah have mercy on him) said: "The gift of the dog and of what its use is permitted among the impurities is permitted: it is a gratuitous act, permitted therein like the bequest" (al-Kafi, 2/466; see al-Sharh al-kabir, 6/262; al-Insaf, 7/131; Sharh Muntaha al-iradat, 4/401; Kashshaf al-qina', 4/369; Manar al-sabil, 2/347).

The Shafi'is, and the Hanbalis on their school's view, hold the invalidity of the gift of impurities: their sale is not valid, and everything whose sale is not permitted, its gift is not permitted. Al-Nawawi (may Allah have mercy on him) said: "As for the gift of the impure oil and charity by it, the Qadi Abu al-Tayyib prohibited both. It is likely that in them there is what is in the gift of the dog by way of divergence. I say: charity by it ought to be affirmed definitively for lighting and the like, and al-Mutawalli affirmed definitively that the transfer of the hand over it is possible by bequest and the like." Al-Mardawi (may Allah have mercy on him) said: "His saying 'everything whose sale is permitted' means its gift is valid: this is correct, stated explicitly, and its implication is that what cannot be validly sold, its gift is not valid: this is the school, presented in al-Furu' and chosen by the Qadi. It is also said: the gift of what its use is permitted among the impurities is valid: al-Harithi affirmed it definitively" (Rawdat al-Talibin, 3/15; al-Insaf, 7/131; Kashshaf al-qina', 4/369).

The gift of the borrowed item, the rented property, the pledged property

6. The gift of the borrowed item: the Hanafis and the Shafi'is explicitly permit it. Al-Nawawi (may Allah have mercy on him) said: "The gift of the borrowed item to one other than the borrower is permitted; when the recipient takes possession with permission, the borrower is freed from guarantee; and if the recipient appointed the borrower as agent to take possession of what is in his hand for himself and he accepted, it is valid" (Rawdat al-Talibin, 4/187; al-Bayan, 8/121). The Hanafis: the gift of the borrowed item is permitted, the loan contract not being binding (Durrar al-hukam, 2/371).

7. The gift of the rented property: al-Nawawi (may Allah have mercy on him) said: "The gift of the rented property is permitted if we permit its sale; otherwise, it involves the two views." Then al-Shaykh Abu Hamid and others said: "If the recipient appointed the usurper, the borrower or the lessee as agent to take possession of what is in his hand for himself and he accepted, it is valid; and when a period permitting taking possession elapses, the usurper and the borrower are freed from guarantee; this contradicts the well-known origin that the usurper cannot be a taker of possession nor a giver of possession" (Rawdat al-Talibin, 4/187; al-Bayan, 8/121).

8. The gift of the pledged property: the jurists differed: is the gift of the pledged thing permitted? The Malikis and the Shafi'is on one view: the gift of the pledged property is valid, and the donor is compelled to free it for the recipient. Al-Qarafi (may Allah have mercy on him) said: "If the pledged property is gifted, it is permitted; you pay what you owe if you have property: if you cannot until you redeem it, the pledgee takes it by the gift contract as long as you live" (al-Dhakhirah, 6/263-264; al-Qawanin al-fiqhiyyah, p. 241). Al-Nawawi (may Allah have mercy on him) said: "In the gift of the pledged property there are two views: if we validate it, we wait: if it is sold during the pledge, the invalidity of the gift becomes apparent; if the pledge is freed, the donor has the option of taking possession" (Rawdat al-Talibin, 4/187). Al-Ghazali (may Allah have mercy on him) said: "They differed over whether the gift of the pledged property effects ownership upon the freeing of the pledge or requires renewal, while it is definitively affirmed that suspending the gift is not permitted, and that the sale of the pledged property is void: for the gift does not effect ownership by itself, unlike the sale" (al-Wasit, 5/213). Al-'Imrani (may Allah have mercy on him) said: "Is the gift of the pledged thing valid without the pledgee's permission? There are two views, both related by al-Mas'udi. The first: it is valid, like the gift of the rented; the pledge does not become void: when the pledge is freed, it is delivered by virtue of the gift, as the rented thing is delivered after the lease ends. The second: the gift is not valid: the gift is an act removing ownership, and the pledgee is prevented from acts removing ownership, as he may not sell the pledge" (al-Bayan fi madhhab al-imam al-Shafi'i, 8/122).

The gift of the usurped property

10. The gift of the usurped property: it is gifted either by the usurper himself or by another; and the other is either able to take it from the usurper or unable.

The Malikis hold the validity of the gift of the usurped property, whether from the usurper or from another, and whether the latter can or cannot take it from the usurper: for the usurped property, at its worst, is gharar, and the gift of a thing involving gharar and unknownness is permitted; and the usurper's possession is not possession, for he possesses for himself (al-Dhakhirah, 6/264).

The Shafi'is: the gift of the usurped property to the usurper is valid; does it require permission for taking possession? Two views. Likewise the gift of the usurped property to one other than the usurper is permitted if he can wrest it from the usurper: if he permits him to take possession and he takes it, the gift becomes binding; and if the usurper was appointed agent for the taking of possession for him and a period permitting it elapses, the thing becomes taken into possession for the recipient, and the guarantee departs from the usurper: the ownership that was guaranteed has gone, and it has become taken into possession for another owner with his permission; unlike the case of the usurper gifting it to him while permitting him to take possession: for the guarantee does not depart from it, the ownership remaining. If he is unable to wrest it: two views, the sounder of them being that it is not permitted (al-Bayan, 8/121; Rawdat al-Talibin, 4/187; al-Najm al-wahhaj, 5/548; Mughni al-Muhtaj, 3/491; Tuhfat al-muhtaj, 7/572; Kifayat al-akhyar, p. 362; al-Dibaj, 2/540).