Islamic Fiqh > Endowments (waqf) and property > Hiba: the gift > By what is the offer of the donation made valid?
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Updated on 25 September 2026 at 6:57 PM
This part belongs to the full section: All sections of this part.
The hiba (donation) is the gratuitous transfer of ownership of a property to another person. The sheets below set out its rules: the offer (ijab) and the acceptance (qabul), the hand-to-hand delivery without words (mu'ata), the prohibition of attaching the donation to a condition or a term, the two special forms known as the umra and the ruqba, and finally the binding nature of the contract through taking possession (qabd). Each point is established from the positions of the four schools and the evidence of the Quran and the Sunna.
The donation is concluded either by a verbal formula, explicit or by allusion, or by hand-to-hand delivery without words (mu'ata), or by what custom points to, and the schools differ on this. The Shafi'is require words spoken by a person capable of speech, both for the offer and the acceptance: the donation is therefore not valid by mu'ata, but it is valid for the gift (hadiyya) and the charity (sadaqa) according to the correct position of the school. The Hanafis, Malikis and Hanbalis validate the donation by the formula as well as by the mu'ata, and by whatever points to it, as the Hanbalis expressly stated.
For the Hanafis, the offer is a pillar (rukn) proceeding from the donor: he says for example "I make a donation of this property to you", "I transfer it to you", "I allot it to you", "it is yours", "I give it to you", "I grant it to you", "I offer it to you", "I have fed you this food" or "I have mounted you on this mount", intending thereby the donation.
If the offer is accompanied by a contextual indication (qarina), it is either a term, a condition, or a use:
In "al-Fatawa al-Hindiyya", the formulas that effect the donation are of three kinds: a formula that effects the donation explicitly, a formula that effects it by allusion and custom, and a formula equally capable of donation and loan for use.
The fundamental rule in these questions is that any formula announcing the transfer of ownership effects the donation, any formula announcing the transfer of use effects the loan for use, and any formula equally capable of both calls for the intention. (Badai' as-Sanai' 6/115, 117; al-Fatawa al-Hindiyya 4/375; cf. al-Ikhtiyar 3/58; al-Jawhara an-Nayyira 4/59-60; al-Lubab 1/601-602; Mukhtasar al-Waqaya 2/103; Hashiyat Ibn Abidin 8/428)
The Malikis said: the donation is valid by a formula indicating the transfer explicitly, such as "I donate to you", "this is a gift from me to you", "I am a donor to you of this", "I have made you owner of it", and the like; or by a formula whose meaning is understood, whether the meaning of the formula is grasped in words, such as "take this, I have no right over it", or in deed, such as handing it over while circumstances indicate that he is giving it to the recipient and transferring it to him.
Among deeds: a father who adorns his son or daughter with jewelry and then dies: the jewelry belongs to the child and is not part of the father's estate, even if he did not testify to the transfer, the adornment being an indication of it so long as he did not testify that it was mere enjoyment; if he does testify, the adornment is then neither a donation nor a transfer. The wife's adornment, on the other hand, is referred to mere enjoyment so long as he did not testify to the transfer, and this concerns adorning her with something while she is with him; as for what he sends her before the marriage as gifts of clothes and jewelry, it is referred to the transfer, unless he called it a loan for use, the default being transfer if he named nothing. The ruling therefore rests on circumstances and custom, whether the child is male or female, young or grown, and whether the adornment is permitted or forbidden. (ach-Charh al-Kabir with ad-Dasuqi's Hashiya 5/495; at-Taj wa-l-Iklil 5/7; Mawahib al-Jalil 8/11; Tahrir al-Moukhtasar 5/5; Charh Mukhtasar Khalil 7/104; Hashiyat as-Sawi 9/198)
The Shafi'is said: the offer by words spoken with customary address is a pillar of the donation, and its explicit formulas are "I donate to you", "I make a munha to you", "I have made you owner of it without a price". As for the mute, a comprehensible gesture suffices him.
Al-Khatib ash-Shirbini (may Allah have mercy on him) said: in the "Dhakhair", concluding the donation by allusion with the intention, as by inquiring acceptance, is a matter of debate unlike sale, that is, it is valid; writing is a form of allusion, and in the "Majmu'" he adopted the validity of the donation by mu'ata. The formula "I have clothed you with this garment" is an allusion in the donation: if the donor then says "I did not intend it for you", he is believed, for it suits a loan for use and is therefore not explicit in the donation, unlike sale.
The offer and acceptance are not required for the gift according to the correct position, even for what is not food: it suffices that the giver sends it, and the sending counts as the offer and the handing over from the recipient's side, hence it counts as acceptance. Gifts were indeed brought to the Messenger of Allah (peace be upon him) by kings and others: robes of honor, mounts, slave girls, and he accepted them without any words; people acted thus through the ages, and that is why they sent gifts by the hands of children who cannot speak.
People sought to have their gifts accepted on the day of Aisha (may Allah be pleased with her).Reported by Bukhari and Muslim
No offer or acceptance was ever reported in this. Imam an-Nawawi (may Allah have mercy on him) said: this is the sound position on which the school stands, transmitted by the most reliable of the later companions. If it is objected that this was mere permission and not a gift with transfer, the answer is that had it been mere permission, they would not have disposed of it as owners; and it is known that what the Prophet (peace be upon him) accepted he disposed of and transferred to others. The words of those who require offer and acceptance can be referred to the manifestation of satisfaction without words, and it is said that expressing satisfaction may be by word or by deed. (Rawdat at-Talibin 4/180-181; cf. al-Bayan 8/112-113; al-Wasit 5/209; an-Najm al-Wahhaj 5/539; Mughni al-Muhtaj 3/488; Kanz ar-Raghibin 3/271-272; Tuhfat al-Muhtaj 7/563; Nihayat al-Muhtaj 5/465; ad-Dibaj 2/538)
The Hanbalis said: the donation is concluded by whatever people recognize as such: the offer, the acceptance, or the mu'ata accompanied by what indicates it. The offer is to say "I donate to you", "I offer to you", "I make you owner", "this is yours", and the acceptance to say "I accept" or "I am content with it". It is also valid by the mu'ata accompanied by its indications, even if no offer or acceptance is uttered.
Al-Qadi and Abu al-Khattab reported that the hiba and the at'iyya require the offer and the acceptance, and are not valid without them, whether the taking took place or not. The sound position is that the mu'ata and the acts indicating the offer and acceptance suffice, without any need for words, as Ibn Aqil chose: the Prophet (peace be upon him) gave and was given, distributed charities and ordered his servants to take them and distribute them, and his companions did the same, yet no offer or acceptance was transmitted from them in this, nor any command or teaching of it; had it been a condition it would have been widely transmitted from them.
Ibn Umar was riding a mount of his father Umar; the Prophet (peace be upon him) said to Umar: "sell it to me"; he said: "it is yours, O Messenger of Allah"; and the Messenger of Allah said: "it is yours, O Abdallah ibn Umar: do with it what you wish". Neither the Prophet's acceptance from Umar nor Ibn Umar's acceptance from the Prophet (peace be upon him) was transmitted; had it been a condition, the Prophet would have performed it and taught it to Ibn Umar, and he would not have commanded him to do with it what he wished before accepting it.
Abu Hurayra (may Allah be pleased with him) reported that when food was brought to the Prophet (peace be upon him), he would ask about it: if they said "it is charity", he said to his companions "eat" and did not eat; if they said "it is a gift", he stretched out his hand and ate with them.
Ibn Qudama (may Allah have mercy on him) said: the scholars, as far as we know, do not disagree that presenting food to guests and permitting them to eat requires neither offer nor acceptance, for there existed what indicates mutual consent through the transfer of ownership, and that suffices, just as if the offer and acceptance had occurred. Ibn Aqil said: the offer is only required when there is no established custom between the giver and the recipient; with circumstances and indications there is no point in halting at words: we are content with the mu'ata in sale, and with the indication of state for entering the bath, which is a hiring and a sale of things; how much more fitting in the donation, which transfers ownership from both sides. Marriage is the exception, for it requires what nothing else requires, witnessing, and it occurs only rarely. The shaykh of Islam Ibn Taymiyya (may Allah have mercy on him) said: everything people count as a sale or a gift, whether by successive or deferred words or deeds, effects the sale and the donation. (al-Mughni 5/382; ach-Charh al-Kabir 6/248-249; al-Moubdi' 5/362; al-Insaf 7/118; Charh Muntaha al-Iradat 4/394-395; Kachchaf al-Qina' 4/360; Manar as-Sabil 2/346)
Ibn Taymiyya adds: these names came in the Book of Allah and the Sunna of His Messenger with legal rulings attached, and every name must have a definition: some are known from language, such as the sun, the moon, the dry land, the sea, the sky and the earth; others from the Law, such as the believer, the disbeliever, the hypocrite, prayer, zakat, fasting and pilgrimage; whatever has no definition in language or in the Law is referred to the custom of the people, such as the taking of possession in the Prophet's saying: "whoever buys food, let him not sell it before taking possession of it". It is known that the Lawgiver defined neither sale, nor hire, nor donation, neither in the Book of Allah nor in the Sunna, and it was not transmitted from any Companion or Successor that he specified for the contracts a fixed set of formulas, or said that they are concluded only by special formulas; it has even been said that this claim contradicts the early consensus and is an innovation. The Arabic language has no definition by which it could be said that such-and-such speech is a sale and such-and-such is not: the Arabs of custom name these dealings a sale, and the principle is that language persists and is affirmed, not displaced and changed. (al-Fatawa al-Koubra 4/468-469; Majmou' al-Fatawa 29/15-16)
When a name has no definition in the Law or in language, the reference is to the people's custom and habits: what they call a sale is a sale, and what they call a donation is a donation. The jurists differed over the donation: is acceptance required for it, or does taking possession suffice and stand in the place of acceptance?
The Hanafis in the madhhab, which is analogy, the Malikis, the Shafi'is in the madhhab, and one Hanbali position, held that acceptance is required: the donation is a contract, and the contract is concluded by offer and acceptance, for a man's property does not pass to another unless the other claims it from his side and the owner consigns it; the offer of donation is consigning the property to another, and there is no consigning without acceptance. No one, indeed, can establish ownership for another without that other's consent. (Durrar al-Houkkam 2/348)
The Hanafis add: the donation is a legal religious act, and such an act exists legally only in respect of its effect, which is its conclusion with regard to the ruling, namely the transfer; the ruling is not established by the offer alone, so the offer by itself is not a donation legally without acceptance, just as the offer without acceptance is not a sale in sale. (Badai' as-Sanai' 6/115; al-Ikhtiyar 3/58; al-Hidaya 3/224; Tabyin al-Haqa'iq 5/91; al-Jawhara an-Nayyira 4/59-60; al-'Inaya 12/265; al-Lubab 1/601-602; Mukhtasar al-Waqaya 2/103; Hashiyat Ibn Abidine 5/688)
The Malikis said: acceptance and taking possession are both considered, but acceptance is a pillar and taking possession a condition. (ach-Charh al-Kabir with ad-Dasuqi's Hashiya 5/496; Mawahib al-Jalil 8/11; Charh Mukhtasar Khalil 7/105; Hashiyat as-Sawi 9/207)
The Shafi'is said: acceptance by words with customary address is a pillar of the donation, and its explicit formulas are "I accept", "I take it as a gift", "I am content with it"; the mute is served by a comprehensible gesture.
The offer and acceptance are excepted in questions, among which:
This refutes the view of the two shaykhs, namely Abu Hanifa and Abu Yusuf, and others: if a guardian other than the father or grandfather makes a donation to a minor or the like, the judge accepts it on his behalf; if it is the father or grandfather acting for both sides, the offer and acceptance are necessary.
It is the guardian who accepts the donation on behalf of the minor and the incapable: if he does not accept it, the executor is removed, and the same applies to the administrator, their negligence depriving the incapable of the more entitled, unlike the father and grandfather owing to the perfection of their compassion. The prodigal accepts the donation himself, as does the slave, not his master, even if it should come to him.
The offer and acceptance are not required for the gift according to the correct position, even beyond food: it suffices that the giver sends it, and the sending counts as the offer and the handing over of the recipient, hence acceptance; gifts were brought to the Messenger of Allah (peace be upon him) by kings and others, without any words, and people acted thus through the ages, entrusting them to children who cannot speak.
People sought to have their gifts accepted on the day of Aisha (may Allah be pleased with her), and no offer or acceptance was transmitted.Reported by Bukhari and Muslim
An-Nawawi (may Allah have mercy on him) said: this is the sound position on which the school stands, transmitted by the most reliable of the later companions. If it is objected that it was mere permission and not a gift with transfer, the answer is that they would not have disposed of it as owners; the words of those who require offer and acceptance are referred to the manifestation of satisfaction without a formula, whether verbal or practical. (Rawdat at-Talibin 4/180-181, and the references cited above)
Al-Mirdawi (may Allah have mercy on him) reported: al-Qadi, in "al-Moujarrad", as well as Abu al-Khattab and Abu al-Faraj ash-Shirazi, held that the hiba and the at'iyya require the offer and the acceptance, whether the taking took place or not, and the author of the "Mughni" said this along with others; in "al-Faiq" he said this view is weak. (al-Insaf 7/119; ach-Charh al-Kabir 6/249)
The Hanafis by istihsan, the Hanbalis in the madhhab, and some Shafi'is such as Ibn as-Sabbagh, held that acceptance is not a pillar of the donation, nor of the gift nor the charity, the latter being the correct Shafi'i position on the gift and the charity: the act indicating acceptance suffices. The reason for istihsan with the Hanafis is that the donation, in language, designates the mere offer of the owner without requiring acceptance; acceptance and handing over are required only for the effect of the ruling, not for the existence of the contract: as soon as the donor has given, the donation has occurred and its rulings follow.
The evidence that the performing of the act is a donation that does not halt at acceptance: it is related that Sa'b ibn Jaththama presented to the Prophet (peace be upon him), while he was at al-Abwa', a wild donkey; in a version reported by al-Waddan, the Prophet returned it and said: "were we not forbidden, we would have accepted it". The narrator used the name of gift without acceptance, and the gift is one of the words of the donation.
It is also related that Abu Bakr as-Siddiq (may Allah be pleased with him) called Aisha (may Allah be pleased with her) during his terminal illness and said to her: "I had granted you twenty wasq of my property at al-'Aliya, and you neither took possession of it nor secured it; today it is the property of the heirs". The Siddiq used the name nihla without taking possession, and the nihla is one of the words of the donation: it is thus established that the donation, in language, designates the mere offer of the property itself. The default is that the legal religious act is what the formula indicates in language, unlike sale, which is the name of the offer with the acceptance and does not bear that name in language or Law when the two are absent. The purpose of the donation, moreover, is to gain merit and praise by showing generosity, and this is obtained without acceptance, unlike sale. (Badai' as-Sanai' 6/115, and the references cited above)
The Hanbalis said: the donation is concluded by the offer, the acceptance or the mu'ata with its indications; the mu'ata and the acts indicating offer and acceptance suffice, without any need for words: the Prophet (peace be upon him) gave and was given, distributed charities and ordered his servants to take them and distribute them, and his companions did likewise, without any offer or acceptance being transmitted from them, nor any command. Ibn Umar was on a mount of his father; the Prophet said to Umar: "sell it to me"; he said: "it is yours, O Messenger of Allah"; the Messenger of Allah said: "it is yours, O Abdallah ibn Umar: do with it what you wish", without any acceptance being transmitted from either side.
Ibn Qudama (may Allah have mercy on him) said: the scholars, as far as we know, do not disagree that presenting food to guests and permitting them to eat requires neither offer nor acceptance, for there existed what indicates mutual consent through the transfer of ownership, and that suffices. Ibn Hazm said, and Ibn al-Qattan al-Fasi transmitted it from him: they agreed that if the recipient of a charity, a donation or a present accepts none of it, it returns to its donor, and he may lawfully take it back into his ownership. (al-Mughni 5/382; ach-Charh al-Kabir 6/248-249; Maratib al-Ijma', p. 96; al-Insaf fi Masa'il al-Ijma' 3/1638, no. 3213)
Al-Bouhouti (may Allah have mercy on him) said: the donation is like sale regarding acceptance preceding the offer: it is valid where sale is valid and void where sale is void. (Kachchaf al-Qina' 4/361; Charh Muntaha al-Iradat 4/396)
The jurists differed over the donation: does the formula require the acceptance to match the offer? The Hanbalis and the Shafi'is in one aspect held that it does: if one donates a property and the recipient accepts only half, or donates two garments of which he accepts one, the donation is not valid, like sale, for it is a pecuniary contract given sale's ruling. (Rawdat at-Talibin 4/182; an-Najm al-Wahhaj 5/541-542; Mughni al-Muhtaj 3/488; Tuhfat al-Muhtaj 7/564; Nihayat al-Muhtaj 5/465-466)
The Malikis and the Shafi'is in the second aspect, both aspects being validated in the Shafi'i school, held that the acceptance need not match the offer: if one donates a property of which the recipient accepts only half, or two garments of which he accepts one, the donation is valid, unlike sale. Sale is not valid because it is an exchange, and the seller may be harmed by division, the value of the remainder diminishing; in the donation, by contrast, what is not pardoned in sale is pardoned. Ahmad reported from Ya'la ibn Murra (may Allah be pleased with him) that a woman came to the Prophet (peace be upon him) with her son afflicted with an ailment that made him as if deranged; the Prophet said: "out, enemy of Allah, I am the Messenger of Allah"; the boy was healed, and she offered him two rams, some curd and some clarified butter; the Messenger of Allah said: "take the curd and the butter and one of the two rams, and return the other to her". From this account it follows that the Prophet did not accept all of it.
A woman came to the Prophet (peace be upon him) with her son afflicted with an ailment that made him as if deranged; the Prophet said: "out, enemy of Allah, I am the Messenger of Allah". The boy was healed, and she offered him two rams, some curd and some clarified butter; the Messenger of Allah said: "take the curd and the butter and one of the two rams, and return the other to her".Reported by Ahmad in his "Mousnad" (nos. 17584, 17599); al-Haythami said in the "Majma'" (9/6): reported by Ahmad, its transmitters are those of the Sahih
It is understood from the Malikis' words that the acceptance need not match the offer.
Al-Qarafi (may Allah have mercy on him) presented the twenty-fourth difference between the rule of acts in which ignorances and uncertainties (gharar) are taken into account and the rule of those in which they are not. Authentic hadiths prohibit the sale of gharar and the sale of an unknown thing; the scholars thereafter differed: some generalized, and that is al-Shafi'i, who prohibited ignorance in the donation, the charity, the release of debt, the khul', the compromise and other acts; others differentiated, and that is Malik, who distinguished the rule of acts where gharar and ignorance must be avoided, namely the chapter of exchanges and acts seeking the growth of wealth, from that of acts where they need not be avoided, namely what is not sought for that purpose.
The acts fall, for him, into three categories: two extremes and a middle. The first extreme is pure exchange: gharar and ignorance are to be avoided therein, except what ordinary necessity calls for. The second is pure benevolence, without seeking the growth of wealth, such as charity, donation and release of debt: these acts do not seek the growth of wealth, and even if gharar causes the benefit to be lost, no harm results to the benefactor, for he spent nothing; unlike the first category, where the wealth spent in return is lost along with the gharar: the wisdom of the Law then requires prohibiting ignorance. As for pure benevolence, it involves no harm: the wisdom of the Law and the encouragement to do good therefore require expansion by every means, with the known as with the unknown, for that evidently facilitates the multiplication of good deeds, whereas prohibiting it would be a means of reducing it. If one donates a runaway slave, he may be found and benefited from, with no harm to the donor, for he spent nothing: this is beautiful fiqh. The hadiths of prohibition, moreover, do not generalize to these categories: they came only regarding sale and its like.
The middle way between the two extremes is marriage: wealth is not the aim there, but affection, intimacy and repose; the Law's silence would suggest that ignorance and gharar are permitted there without reserve, but the Lawgiver required wealth there by the word of Allah:
"...seeking wives by means of your wealth..."
Surah An-Nisa', 24
which requires excluding ignorance and gharar. If the two options present themselves, the middle tolerates slight gharar, not much, such as an unspecified slave without the right to choose the chamber, but not the runaway slave nor the stray camel, for lack of a measure. The first category refers to the customary middle, the second has no measure, so gharar is expanded there; and the khul' is attached to the first category, where gharar is forbidden absolutely, for the wife's protection and its release are not among what is sought in exchange: they are in the situation of divorce, which may be pronounced without anything given, hence in that of the donation. Such is the difference between the two rules, and that is the measure of the two chapters and of the fiqh with Malik. (al-Fourouq 1/347-348)
The jurists differed over suspending the donation on a condition, such as "if Zayd enters, a thousand (dirhams) are yours", "if you succeed, a thousand dinars are yours", "if Khalid comes, a hundred are yours", or "at the beginning of the month I have donated to you": is it permitted? The Hanafis, the Shafi'is and the Hanbalis in the madhhab held that the donation requires immediacy and definitiveness (tanjiz): it cannot be suspended on a condition nor attached to a term, for the transfer by nature requires firm assertion and immediacy; it cannot therefore concern a thing wavering between existence and non-existence. The contract suspended on a condition indeed becomes binding when the condition occurs; were the act valid before the condition's existence, the consequence would exist without its cause, which is impossible.
The donation cannot be suspended on what carries the risk of existence and non-existence, such as Zayd's entering or Khalid's coming: the donation is the immediate transfer of the thing and tolerates neither suspension nor term, like sale.
Ibn Abidine (may Allah have mercy on him) reported from the "Khoulasa": suspending the donation on a condition is void if stated with the word "if"; if stated with the words "on condition that" and the condition is appropriate, such as saying "I give you this on condition that you compensate me", both the donation and the condition are valid; if the condition is contrary, the donation is valid and the condition void.
If he donates a slave boy or a property granting the recipient an option of three days, the option is valid if exercised before they separate; if they separate without it being exercised, it is no longer so. If he donates a property reserving for himself an option of three days, the donation is valid and the option void, for the donation is a non-binding contract in which a condition of option has no place, as stated in the "Fatwa Qadikhan". A man has a claim of a thousand dirhams against another and says: "tomorrow the thousand are yours", or "you are discharged of it", or "when you have paid me half the wealth you are discharged of the remaining half", or "the remaining half is yours": all of this is void, as stated in "al-Jami' as-Saghir". (Hachiyat Ibn Abidine 8/427; cf. Badai' as-Sanai' 6/118; al-Bahr ar-Raiq 6/198; al-Hindiyya 4/378, 397; Ghumaz 'Ouyoun al-Bassa'ir 4/44)
The Shafi'is said: suspending the donation is not valid, as in "at the beginning of the month I have donated to you or released you from your debt". (asna al-Matalib 2/479; I'anat at-Talibin 3/275)
Ibn Qudama (may Allah have mercy on him) said: suspending the donation on a condition is not valid, for it is the transfer of a determinate property during life; it therefore cannot be conditioned, like sale. If it is conditioned, as in the Prophet's saying to Umm Salama (peace be upon him): "if our gift comes back from the Negus, it is yours", it is a promise, not a donation. (reported by Ahmad, no. 27317, and Ibn Hibban in his "Sahih", no. 5114; al-Mughni 5/384; ach-Charh al-Kabir 6/264; al-Mouharrar fi l-Fiqh 1/374; al-Moubdi' 5/367; al-Insaf 7/133)
The Malikis and Ibn al-Qayyim among the Hanbalis held the validity of suspending the donation on a condition, since there exists no established report nor consensus on its invalidity. Ibn al-Qayyim (may Allah have mercy on him) said: what is the evidence for the invalidity of suspending the donation on a condition, when it is authentically reported from the Prophet (peace be upon him) that he suspended the donation on a condition in Jabir's hadith:
If the wealth of Bahrain reaches me, I will give you this and that and that.Reported by Bukhari (no. 2968)
Yet that wealth did not arrive before the Prophet's death. When the wealth of Bahrain arrived, Abu Bakr had a caller announce that whoever had a debt or a limited promise due from the Messenger of Allah should come; Jabir came, related the Messenger of Allah's promise, and the Siddiq gave him three handfuls, fulfilling the promise after the death of the Messenger of Allah (peace be upon him). If it is objected that it was a promise, we answer: yes, and the donation suspended on a condition is precisely a promise. The Prophet acted likewise when he sent the Negus a gift of musk, saying to Umm Salama: "I have sent the Negus a garment and ounces of musk, and I see the Negus already dead and my gift already returned to me: if it comes back to me, it is yours". The correct position is therefore the validity of suspending the donation on a condition, acting on these two hadiths. (Ighathat al-Lahfan 2/16-17)
The Malikis permit suspending the donation like the waqf, and likewise the rest of the disinterested gifts. (ach-Charh al-Kabir with ad-Dasuqi's Hashiya 5/473-474; Mawahib al-Jalil 7/492; at-Taj wa-l-Iklil 4/576; Charh Mukhtasar Khalil 7/91; Tahrir al-Moukhtasar 4/653; Hashiyat as-Sawi 9/139; al-Insaf 7/23)
Restricting the donation by a term occurs either outside the umra and the ruqba, as in "I donate my house to you for a year", or within the umra and the ruqba. The majority of the jurists, namely the Hanafis, the Shafi'is and the Hanbalis in the madhhab, held that limiting the donation by a term is not valid, as in "I donate this to you for a year or a month, then it returns to me": that is suspending the end of the donation, whereas it is a contract of transfer of a thing, which is not valid with a term, like sale, except for the umra and the ruqba, two species of the donation whose limitation by a term is valid, as we shall see. (Badai' as-Sanai' 6/118; asna al-Matalib 2/479; I'anat at-Talibin 3/275; al-Mughni 5/384; ach-Charh al-Kabir 6/264; al-Mouharrar fi l-Fiqh 1/374; al-Moubdi' 5/367; al-Insaf 7/134; Kachchaf al-Qina' 4/371)
The Malikis, al-Harithi among the Hanbalis and the shaykh of Islam Ibn Taymiyya held the validity of limiting the donation by a term. Al-Mirdawi (may Allah have mercy on him) said: his saying "no limitation by a term", as in "I donate this to you for a year", is the madhhab followed by the companions, except what the author excepted; al-Harithi mentioned the permission, and the shaykh Taqi ad-Din (may Allah have mercy on him) chose it. With the Malikis, the limited donation is like the waqf, as passed in the book of waqf: limiting the waqf by a term is valid, and likewise the donation. (al-Insaf 7/134; Kachchaf al-Qina' 4/371; ach-Charh al-Kabir with ad-Dasuqi's Hashiya 5/474-475; Charh Mukhtasar Khalil 7/91; al-Fawakih ad-Dawani 2/162; Minhaj al-Jalil 8/145; Tahrir al-Moukhtasar 4/641, 653; Hashiyat as-Sawi 9/139; an-Najm al-Wahhaj 5/482)
The umra is to say "I have allotted this house to you for my life", or "I have allotted it to you for your life or the duration of your life", so that it is the recipient's for the duration of his life; when he dies, it returns to the donor if the donor is alive, or to the donor's heir if the donor is dead. It was called umra because he owns it for the duration of his life (umr), it returns to the donor after his death, and the people of the pre-Islamic era were upon what we have described. This connects to the word of Allah:
"It is He who produced you from the earth and settled you in it"
Surah Hud, 61
that is, He settled you in it for the duration of your lives, and you became its inhabitants. (al-Hawi al-Kabir 7/539; Tahdhib al-Lougha 2/234)
The jurists differed over the umra: does it return to the donor when the recipient dies, or is it the recipient's during his life and then his heirs' after his death, with no return to the donor? The majority of the jurists, namely the Hanafis, the Shafi'is and the Hanbalis in the madhhab, held that the umra is valid for the recipient during his life and for his heirs after his death: he owns it in full ownership, not mere use, and the condition of return is void, by the Prophet's saying:
Do not make umra nor ruqba: whoever is given umra or ruqba of a property, it is his during his life and after his death.Authentic hadith reported by an-Nasa'i (2/136), Abu Dawoud (no. 3556), at-Tahawi (2/248) and al-Bayhaqi (6/175)
The Prophet (peace be upon him) thus validated the umra and voided the condition of return; the condition's invalidity does not affect the invalidity of the contract, since the donation is not invalidated by corrupt conditions, as the Hanafis say.
The umra is permitted to its beneficiary.Authentic hadith reported by Bukhari (no. 2483), Muslim (no. 1625), Abu Dawoud (no. 3558), at-Tirmidhi (no. 1351), an-Nasa'i (no. 3739), Ibn Majah (no. 2383), al-Bayhaqi (6/175) and Ahmad (3/303)
The Prophet judged that the umra belongs to the one to whom it was given.Reported by Bukhari (no. 2482), from Jabir ibn Abdallah
In Muslim's Sahih, Jabir (may Allah be pleased with him) reported that a woman made umra to her son of a garden she owned in Medina; the son died, then she died after him, leaving a child who had brothers on the donor's side. The recipient's child said: "the garden has returned to us", and the donor's sons said: "it was our father's during his life and his death". They brought the dispute to Tariq, the freedman of Uthman, who summoned Jabir; he testified that the Messenger of Allah (peace be upon him) had ruled that the umra belongs to its beneficiary, and Tariq judged accordingly. He then wrote to Abd al-Malik informing him of this and reporting Jabir's testimony, and he answered: "Jabir spoke the truth". Tariq enforced that judgment, and that garden belongs to the donor's sons to this day. (reported by Muslim, no. 1625)
Jabir (may Allah be pleased with him) reported that the Messenger of Allah (peace be upon him) said:
Hold on to your properties and do not squander them: whoever makes umra of a property, it belongs to the one who receives it in his life and after his death, as well as to his offspring.Reported by Muslim (no. 1625)
Jabir also reported that the Messenger of Allah said:
Whoever makes umra of a property, it is his and his offspring's: whoever inherits from him among his offspring inherits it.Authentic hadith reported by Abu Dawoud (no. 3553) and an-Nasa'i (no. 3742)
These hadiths establish that the umra does not return to the donor: it is the recipient's during his life and his heirs' after him, and the condition of return after the recipient's death is void, without however invalidating the umra. It is a species of the donation: what is considered in the donation is considered in it, and it is invalidated by what invalidates the donation. The recipient owns it in full ownership, its body and its uses; its jurists required taking possession according to their principles on donations: whoever makes umra to a man of a property during his life, it is his during his life and his heirs' after his death, for he has owned its ownership; the donor's condition and his mention of the umra and of life are void, for the Messenger of Allah voided his condition and made it a definitive gift, that is, an acquired gift that does not return to the donor. Whether he said "it is yours during your life, yours and your offspring's after you, the umra of their lives", or "as long as I live and they live", all of that is void: the Messenger of Allah voided the condition, and if the condition concerning the donor during the recipient's life is void, that concerning his offspring's life is so too. Every condition voided by Allah or by His Messenger is rejected, for enforcing it would amount to rendering lawful the unlawful.
The Hanafis said: the umra is valid for the recipient during his life and for his heirs after his death: the donor allots his house to the recipient for the latter's life, with the condition that it return to him if the recipient dies; the transfer is valid and the condition void, for the donation is not invalidated by corrupt conditions. In "al-Yanabi'", the formula of the umra is: "I have allotted my house to your life", or "I have allotted it to you for your life", or "it is yours for your life: when you die it returns to me"; all these formulas are a donation, valid for the recipient and his heirs, the condition of return at the recipient's death being void; and being a donation, what is considered in the donation is considered in it, and it is invalidated by what invalidates it. (al-Hidaya 3/230; al-Jawhara an-Nayyira 4/88; al-'Inaya 12/323; al-Ikhtiyar 3/65; Tabyin al-Haqa'iq 5/104; Mukhtasar al-Waqaya 2/108-109; al-Lubab 1/612; Hashiyat Ibn Abidine 8/493)
The Shafi'is said: the formula of the umra and that of the ruqba are among the words of the donation, but they are specific formulas: the umra comes from "umr", the word for life being mentioned in it, and the ruqba comes from "rouqoub", each of the two watching for the other's death. When the donor limits the donation to the recipient's life, saying "I have made umra to you of this house", meaning "I have allotted it to you for your life or as long as you live, and when you die it will be your heirs' or your offspring's", it is a donation in its ruling, but the expression is extended: acceptance is considered, it becomes binding by taking possession, and it belongs to the heirs after him, by the preceding hadiths; at his death the house belongs to his heirs, and if he has none, to the public treasury, never returning to the donor, unlike Malik.
An-Nawawi (may Allah have mercy on him) said: our companions held that the umra has three states:
Ahmad said: the absolute umra is valid, not the one limited by a term. Malik, in the most famous version of his school, said the umra, in every case, is a transfer of the house's uses, for instance, without the recipient ever owning its ownership. Abu Hanifa held the validity as in our madhhab, as did ath-Thawri, al-Hasan ibn Salih and Abou 'Oubayda. The proof of al-Shafi'i and his supporters consists of these authentic hadiths, and Allah knows best. (Charh Sahih Mouslim 11/70-71; al-Mouhadhdhab 1/448; al-Bayan 8/137-138; al-Wasit 5/210-211; Rawdat at-Talibin 4/184-185; an-Najm al-Wahhaj 5/544-545; Kanz ar-Raghibin 3/273; Mughni al-Muhtaj 3/489-490; Tuhfat al-Muhtaj 7/569-570; Nihayat al-Muhtaj 5/468-469; ad-Dibaj 539-540; I'anat at-Talibin 3/275-276)
The Hanbalis said: the umra and the ruqba are two species of the donation requiring what the other donations require: the offer, the acceptance and the taking of possession, or what stands in its place for those who consider it. The formula of the umra: "I have made umra to you of my house", or "it is yours for my life", or "as long as I live", or "for the duration of your life or as long as you live", or the like; it was named umra for its restriction to the life (umr), and thus it is the recipient's and his heirs' after him, by Jabir's hadith cited.
Ibn Qudama (may Allah have mercy on him) said: this being established, the umra transfers ownership to the recipient; this is the view of Jabir ibn Abdallah, Ibn Umar, Ibn Abbas, Chourayh, Mujahid, Tawus, ath-Thawri, al-Shafi'i and the people of opinion (ahl ar-ray), and it was transmitted from Ali.
Malik and al-Layth said: the umra is a transfer of uses: the recipient never owns its ownership; he has the enjoyment of dwelling, and at his death it returns to the donor. If he said "to him and his offspring", the dwelling is theirs, and when the offspring is extinct it returns to the donor. They argued with what Yahya ibn Sa'd reported from Abd ar-Rahman ibn al-Qasim: "I heard Mak'houl ask Qasim ibn Mouhammad what people say of the umra, and Qasim replied: I only knew people attached to their conditions in their properties and in what they gave". Ibrahim ibn Ishaq al-Harbi reported from Ibn al-A'rabi that the Arabs never differed that the umra, the ruqba, the ifqar, the ihbal, the munha, the 'ariya, the ariyya, the soukna and the itraq stand upon their owners' property, with uses for the one to whom it was allotted; the transfer, indeed, cannot be limited by a term, as sale for a duration, and since the transfer does not tolerate the term, the donor's words are referred to the transfer of uses, which does tolerate time restriction.
On the contrary, says the Hanbali evidence: Jabir reported that the Prophet said "hold on to your properties and do not squander them: whoever makes umra of a property, it belongs to the one who receives it in his life and after his death, as well as to his offspring" (reported by Muslim, no. 1625); in one version, "the Messenger of Allah judged that the umra belongs to the one to whom it was given", which is agreed upon; Ibn Majah reported from Ibn Umar that the Messenger of Allah said: "no ruqba: whoever makes ruqba of a property, it is his during his life and his death"; and Zayd ibn Thabit (may Allah be pleased with him) reported that "the Prophet made the umra an inheritance for the heir".
Malik transmitted the hadith of the umra in his Muwatta', and it is authentic: Jabir, Ibn Umar, Ibn Abbas, Mou'awiya, Zayd ibn Thabit and Abu Hurayra transmitted it. Qasim's word cannot be accepted against the Companions and Successors we have named, still less against the master of the messengers. Nor can a consensus of Medina be claimed, so numerous are the Medinans who said otherwise; Tariq judged accordingly in Medina by order of Abd al-Malik ibn Marwan. As for Ibn al-A'rabi's statement that these terms designate, among the Arabs, the transfer of uses, it does no harm if the Law transferred them to the transfer of ownership, as it transferred prayer from supplication to ordered acts, and the zihar and the ila' from the chapter of divorce to specific rulings. To their argument that "the transfer cannot be limited by a term", we answer that this is precisely why the Law voided the time restriction and made it an absolute transfer.
Chapter: if the umra was conditioned for the recipient and his offspring, that is a confirmation of its ruling: it belongs to the recipient and his heirs, and this is the view of all who validate it. If he formulated it absolutely, it belongs to the recipient and his heirs as well, for it is a transfer of ownership resembling the donation. (al-Mughni 5/399-401; al-Kafi 2/472; Kachchaf al-Qina' 4/372-373; Charh Muntaha al-Iradat 4/402-404; Manar as-Sabil 2/350-351)
The Malikis held that the umra is only the transfer of the use of an owned thing, real estate or other, such as a horse or a camel, for the duration of the donor's life, without compensation, by an act of institution: it is not a transfer of ownership, as in "I make you dwell in this house for your life" or "I donate its dwelling to you for your life". The umra formula is not required: whatever indicates the transfer of the use suffices.
The umra, that is, the umra-thing, returns after the recipient's death to the donor if he is alive, or to the donor's heirs on the day of his death. The "Moudawwana al-Koubra" relates on this: a man makes umra to another of his house for his life, or of his slave or his mount: if the donor says "I have made umra to you of this house for your life", or "of this slave", "of this mount", it is valid with Malik, and after the recipient's death it returns to the donor or his heirs. If the donor makes umra of a garment or jewelry: nothing was heard from Malik regarding clothes, and as for jewelry, it ranks with houses.
A man says "my house is yours as charity for dwelling": the recipient has only the dwelling as charity, without its ownership; Malik said: "that is my opinion". If the donor says "I have placed this slave in habis for you both", then "he is the second one of you", it is valid with Malik: he is the second one's, who may sell him and dispose of him as he wishes, for the donor placed him in habis for them both as long as they lived; at the death of one, he is a donation for the other.
If the donor says "I make you dwell in this house, you and your offspring", then dies, and his offspring dies, the house returns to the donor, unless he said "I have placed it in habis for so-and-so and his offspring as a habis-charity": then, when the man and his offspring are extinct, it returns to the waqif's closest relatives, as a waqf upon them. If the waqif is alive, it never returns to him in any circumstance, but returns to his closest relatives, as a waqf: men as well as women, his children and his paternal relatives entering into this. All of this is Malik's opinion. (al-Moudawwana al-Koubra 15/91-92)
Ibn Abd al-Barr (may Allah have mercy on him) said: Malik did not rule by the apparent sense of this hadith, Jabir's hadith mentioned in the chapter, owing to what Yahya ibn Sa'd reported from Abd ar-Rahman ibn al-Qasim: he heard Mak'houl ad-Dimashqi ask Qasim ibn Mouhammad what people say of the umra, and Qasim replied: "I only knew people attached to their conditions in their properties and in what they gave"; and Qasim had accompanied Companions and great Successors. Malik said: our position is that the umra returns to the donor if he did not say "to you and your offspring", at the recipient's death; and likewise, if he said "to you and your offspring", it also returns to its owner after the recipient's offspring is extinct, for he is upon his condition regarding the offspring as regarding the recipient. Its ownership, with Malik and his companions, remains its owner's forever: it returns to him if he is alive, or to his heirs after him, with their guarantee. By the formula of umra and i'mar, Malik never transfers the ownership of any gift; these formulas are with him like those of the soukna and the iskan: they transfer only the uses, not the ownerships: the umra, the soukna, the ariyya, the itraq, the munha, the ahbal, the ifqar and the like.
Abu Ishaq al-Harbi said: I heard Ibn al-A'rabi say that the Arabs never differed that these names stand upon their owners' property, with uses for the one to whom it was allotted: the umra, the ruqba, the ifqar, the ihbal, the 'ariya, the soukna and the itraq. Among the arguments of Malik's companions for setting aside Jabir's hadith, they said it is an abrogated hadith and practice did not follow it; others said: "perhaps its carrier was deceived"; Ibn Abd al-Barr answers that such talk does not rebut established hadiths according to any scholar, except by an abrogation established without counter-indication.
They also argued with what Ibn al-Qasim and others reported from Malik: "I saw Mouhammad and Abdallah, the two sons of Abu Bakr ibn Mouhammad ibn Amr ibn Hazm, and I heard Abdallah rebuke Mouhammad, who was at the time a judge: why do you not judge by the hadith of the Messenger of Allah regarding the umra, the hadith of Ibn Shihab from Abu Salama ibn Abd ar-Rahman from Jabir? Mouhammad would answer him: my brother, I did not find the people upon this, they rejected it. He would speak to him and Mouhammad would refuse it." Malik said: "there is no acting upon this hadith, and I wish it were erased."
The finest argument they invoked is this: the recipient's ownership is established by consensus before he introduces the umra; when he introduces it, the scholars differ: some say his formula removed the umra-thing from his ownership, others that his ownership did not leave by this formula. The duty, in all correctness of examination, is that ownership does not leave except by certainty, namely consensus, for difference does not establish certainty; and it is established that deeds are by intentions, and this man did not intend, by his formula, to remove anything from his ownership: he stipulated a condition, and he is bound by his condition, by the Messenger of Allah's saying: "the Muslims are bound by their conditions", an authentic hadith cited above.
Malik (may Allah have mercy on him) said: if he makes umra to the recipient of his house for life and has him dwell in it for life, it is one and the same thing: if the recipient wants to rent it, he may rent it little by little, and the rent is not far off; the recipient may sell the house's uses and his dwelling in it to the one who made umra of it, but not sell it to another. (at-Tamhid 7/113, 116)
Al-Qarafi (may Allah have mercy on him) said: Tariq judged accordingly in Medina, and Ibrahim ibn Ishaq al-Harbi reported from Ibn al-A'rabi that the Arabs never differed that the umra, the ruqba, the ifqar, the carrying, the munha, the 'ariya, the ariyya, the soukna and the itraq stand upon their owners' property, with uses for the one to whom it was allotted. The opponent claims that the Law transferred them, whereas the principle is non-transfer: the transfer of ownership, once a term is conditioned in it, is invalid like sale, and here it is not corrupted, so it is referred to the uses; the opponent claims the Law voided the term to validate ownership, whereas we claim the Law took it into consideration, and voiding against the evidence is inadmissible. Our madhhab is therefore the more plausible linguistically and legally; and because the liberal gift contrary to the principle was contradicted in the uses, it remains, regarding the ownerships, upon the principle. (ad-Dhakhira 6/217)
The qadi Abd al-Wahhab (may Allah have mercy on him) said: the umra with us is a transfer of uses, not of ownership: if he says "I have made umra to you of this house for your life" and adds "and your offspring" or not, it is the recipient's for the duration of his life; at his death, or at the extinction of his offspring if he mentioned it, it reverts to the donor's ownership or his heirs' if he has died.
Abu Hanifa and al-Shafi'i said: it is the recipient's ownership; if he dies without an heir, it belongs to the public treasury. Our proof is that the transfer of ownership is by nature absolute: it cannot be limited by an incoming term, as if one said "I sold you this slave until Zayd comes or until the beginning of the month", which is invalid. If the owner limited the transfer to the recipient's life, it is known he did not intend the transfer of ownership: it must therefore be referred to what is valid, namely the transfer of uses, the term entering the uses and not the transfer of bodies. The transfer of ownership, indeed, cannot be limited by a term, its origin being exchange, namely sale; just as a term on which the transfer is suspended, such as Zayd's coming, gives no ownership of the body, likewise a transfer suspended on the recipient's life, as on the donor's, must be referred to the uses: hence the formula "I make you dwell". (al-Ichraf 'ala nakt masa'il al-khilaf 3/256-257, no. 1099; tafsir al-Qourtouchi 1/299-301; Mawahib al-Jalil 8/18-21; ad-Dasuqi's Hashiya with ach-Charh al-Kabir 5/507-508; at-Taj wa-l-Iklil 5/19-20; Tahrir al-Moukhtasar 5/17-18; Charh Mayyara 2/270; Hashiyat as-Sawi 9/241)
Ibn Hubayra (may Allah have mercy on him) said: they differed over the umra. Abu Hanifa, al-Shafi'i and Ahmad held that the umra is a transfer of ownership: if a man makes umra to another of a house, saying "I have made umra to you of this house and allotted it to you for your life or my life, or as long as I live", it is the recipient's and his heirs' after him, whether he said "it is yours and your offspring's" or left it absolute; if he has no heir, it belongs to the public treasury and never returns to the donor. Malik said: it is a transfer of uses; at the recipient's death it returns to the donor; if he left it absolute, it does not return to the recipient's heirs but to the donor, and if the donor is gone, it returns to his heirs. (al-Ifsah 2/58)
The jurists differed over the umra's formula: must one say "my house is yours for your life, or the duration of your life, or as long as you live, or as long as you shall live", restricting it to the recipient's life, or may one say "my house is yours for my life or the duration of my life: when I die it will be my heirs'"? The majority of the jurists, namely the Hanafis, the Malikis, the Shafi'is in one aspect and the Hanbalis, held there is no difference between "I have allotted my house to you for your life or my life, or the duration of your life or mine", owing to the inclusiveness of the name umra.
Abou 'Oubayd said: the umra is for a man to say to another "this house is yours for your life", or "my house is yours for my life". (Tahdhib al-Lougha 2/234)
The Hanafis said: if he says "I have made umra to you of this house", or explicitly "I have allotted this house to my life", or "I have allotted it to you for your life", or "it is yours for your life: when you die it returns to me", or "for my life: when I die it returns to my heirs", all of this is a donation, valid for the recipient during his life and for his heirs after him, the time restriction being void. (Badai' as-Sanai' 6/116; al-Mabsout 12/96; al-Jawhara an-Nayyira 4/88; Hashiyat Ibn Abidine 8/493)
The Hanbalis said: if he says "I have made umra to you of this house", or "I have made ruqba of it to you", or "I have allotted it to you for your life or the duration of your life", or "I have given it to you", or "I have allotted it to you as an umra", or "as a ruqba", or "as long as you shall live", it is valid, and it belongs to the recipient and his heirs after him. (al-Insaf 7/134; Kachchaf al-Qina' 4/371; Charh Muntaha al-Iradat 4/403; Matalib Ouli an-Nouha 4/497)
The Malikis said: the umra is a transfer of the use for the duration of the beneficiary's life, and it is apparent that the transfer of the use for the duration of the donor's life is not an umra literally, that is, technically, but an umra figuratively, though valid. Al-Lakhmi (may Allah have mercy on him) said: the umra is of three kinds: restricted to a term or to the recipient's life, absolute, and with offspring. If it is restricted to a term, as "I have made umra to you of this house for a year, or ten, or my life, or your life", it stands as given; if it is absolute, it is understood for the beneficiary's life, even if he said "for my life"; if he added offspring, saying "I have made umra of this house to you and your offspring", it does not return to the donor unless the offspring is extinct. (Mawahib al-Jalil 8/19; Charh Mukhtasar Khalil 7/111; ach-Charh al-Kabir with ad-Dasuqi's Hashiya 5/507; Hashiyat as-Sawi 9/241)
The Shafi'is, in the most authentic aspect, held the invalidity of the formula "my house is yours for my life": it departs from the established formula and involves limiting ownership by the donor's life, who may die first, unlike the reverse. The first formula, for the recipient's life, is indeed restricted but pardoned, for it is the statement of reality: a man owns only the time of his life, so there is no restriction. When he says "this house is yours for my life", it is a void donation: it is not transferred to him for the donor's life such that the donor would be inherited from, nor did he make it an umra in the sense of the report; he estimated it at his own life, which, being contrary to the principle, removes it from the rule of negation into being void. (al-Hawi al-Kabir 7/542; al-Bayan 8/140; Rawdat at-Talibin 4/186; al-Iqna' 2/368; Mughni al-Muhtaj 3/490; I'anat at-Talibin 3/276)