Islamic Fiqh > Endowments (waqf) and property > Hiba: the gift > Limitation by a third party's life
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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 jurists differed over the case where the donor limits the umra-thing to a third party's life, saying "I have allotted it to you for the life of so-and-so": is it valid? The Malikis and the Shafi'is in one aspect held that "I have made umra to you for the life of Zayd" or "I have allotted it to you for the life of so-and-so" is valid, owing to the inclusiveness of the name umra. (ad-Dhakhira 6/218; 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 and the Hanbalis held that if the donor attaches the donation to another's life, saying "I donate the house to you for the life of Zayd", it is not valid: it is a void donation, owing to the limitation of ownership, and it is neither an umra nor a ruqba. The Hanafis, for their part, mentioned in the donation's formulas only the donor's or the recipient's life, as passed. (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; Kachchaf al-Qina' 4/372; Charh Muntaha al-Iradat 4/404; Matalib Ouli an-Nouha 4/498)
If the donor confines himself to "I have made umra to you" absolutely, without addressing what follows his death, is the donation the recipient's during his life and his heirs' after his death, or is it his during his life then reverted to the donor after his death, or is the gift void? The Hanafis, the Shafi'is in the recent opinion, the correct one of the school, and the Hanbalis in the madhhab held that it is a donation as well: it belongs to the recipient during his life and his heirs after his death, with no return to the donor, by the hadith "do not make umra nor ruqba..." (an-Nasa'i 2/136; Abu Dawoud 3556; at-Tahawi 2/248; al-Bayhaqi 6/175), the hadith of the Medinan woman reported by Muslim (no. 1625), the hadith "hold on to your properties..." (Muslim 1625) and the hadith "whoever makes umra of a property, it is his and his offspring's..." (Abu Dawoud 3553; an-Nasa'i 3742).
The explanation is that it is a transfer of ownership resembling the donation: limiting it to the duration of his life does not prevent its passing to his heirs, for all properties are measured by their owner's life: settled properties are measured in time only by the owner's life, then pass after his death to his heirs. What was given for the duration of life therefore does not contradict the regime of properties; not contradicting it, it must be valid, and once valid, it must pass by inheritance.
The Shafi'is' old opinion was disputed among their companions. Abu Ishaq al-Marwazi (may Allah have mercy on him), and this is also the second version of the Hanbalis, said: the old opinion is that the umra is the recipient's during his life, then returns to the donor at his death, by the Prophet's saying: "whoever is given umra of a property for himself and his offspring, it belongs to the one who receives it, with no return to the one who gives it": the Prophet's address establishes that if the offspring's condition is not stipulated, the property returns to the giver, and at the recipient's death it goes to the donor or the donor's heirs, for he reserved only his life for him. The majority of the companions, and this is the madhhab, said the old opinion is that the gift is void: it is the transfer of a thing estimated at a term, hence void, like selling one's house for the buyer's life; and it is an estimated umra, hence void like "I have made umra to you of this house for a year". When the donor limits it to the duration of his own life, it may intend the return to the donor after the recipient's death (hence void) or the passing by inheritance (hence valid): it cannot be presumed valid with a corrupt possibility present. Others said the old opinion is that it is a loan for use: the donor takes it back whenever he wishes, and at his death it goes to his heirs. (Charh Sahih Mouslim 11/70-71; al-Hawi al-Kabir 7/541; 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; Badai' as-Sanai' 6/116; Hashiyat Ibn Abidine 8/428; al-Hindiyya 4/375)
Ibn Qudama (may Allah have mercy on him) said: 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 left it absolute, saying "I have made umra to you for your life" without adding anything, there are two versions: the first is that it is like the first case, by the report, one version of which reads "the Messenger of Allah judged that the umra belongs to the one to whom it was given", which is agreed upon; and all settled properties are measured by their owner's life then pass to the heirs, so its limitation to his life does not contradict the regime of transfer. The second version is that it returns after his death to the donor, by what Jabir reported: "the umra the Messenger of Allah permitted is that in which one says: it is yours and your offspring's". (Charh Sahih Mouslim 11/70-71; al-Hawi al-Kabir 7/541, and the references cited above)
Jabir (may Allah be pleased with him) reported in this regard that the Prophet (peace be upon him) said: "it is yours as long as you live", and then it returns to its owner (reported by Muslim, no. 1625). The Malikis said: if he says "I have made umra to you of my house", or "I made umra to Zayd of my house", absolutely, without restricting it to the recipient's life or a third party's, it is an umra; likewise "I make you dwell in my house": it is referred to the beneficiary's life, who enjoys it all his life, and at his death it returns to its owner. (al-Qawanin al-Fiqhiyya 1/245; Mawahib al-Jalil 8/19; ach-Charh al-Kabir with ad-Dasuqi's Hashiya 5/507-508; Charh az-Zarqani on the Mouwatta' 4/61; al-Bayan wa-t-Tahsil 12/206-208; Hashiyat as-Sawi 9/241; al-Bahja fi Charh at-Tuhfa 2/410; Minhaj al-Jalil 8/202)
The jurists differed over the case where the donor conditions that, if the recipient dies, the property returns to the donor: does it return to him by this condition, or is it the recipient's during his life then his heirs', the condition being voided? The Malikis, the Shafi'is in the old opinion and the Hanbalis in a version held that the contract and the condition are valid: as soon as the recipient dies, the property returns to the donor, by what Ma'mar reported from az-Zouhri from Abu Salama from Jabir ibn Abdallah (may Allah be pleased with both): "the umra the Messenger of Allah permitted is that in which one says: it is yours and your offspring's; but if one says: it is yours as long as you live, then it returns to its owner" (reported by Muslim, no. 1625). Ma'mar said: az-Zouhri gave the fatwa accordingly.
Abd ar-Rahman ibn al-Qasim reported that 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" (reported by Malik in the Mouwatta', no. 1442). Yahya said: I heard Malik say: our position is that the umra returns to the donor if he did not say "it is yours and your offspring's" (al-Mouwatta' 2/756). Az-Zarqani (may Allah have mercy on him) said: if he says "it is yours as long as you live: when you die it returns to me", it is a loan for use limited by a term, valid, returning to the donor at the recipient's death; this report and the preceding one are az-Zouhri's version, and it is the view of most scholars, adopted by some Shafi'is; the most authentic position among most of them is that it does not return: it is a corrupt and voided condition, and the hadith answers them. (Charh az-Zarqani 4/61; al-Istidhkar 7/328-329)
The Hanafis, the Shafi'is in the recent opinion and the Hanbalis in the apparent madhhab held that it belongs to the recipient and his heirs, the condition falling, by the absolute authentic hadiths: "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" (an-Nasa'i 2/136; Abu Dawoud 3556; at-Tahawi 2/248; al-Bayhaqi 6/175); Jabir's hadith: "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" (Muslim 1625); "whoever makes umra of a property, it is his and his offspring's: whoever inherits from him among his offspring inherits it" (Abu Dawoud 3553; an-Nasa'i 3742).
Ibn Shihab az-Zouhri reported from Abu Salama ibn Abd ar-Rahman from Jabir ibn Abdallah (may Allah be pleased with both) that the Prophet (peace be upon him) said: "any man given umra of a property for himself and his offspring, it belongs to the one who receives it, never returning to the one who gave it"; Abu Salama said: because he gave a gift to which the transmission of inheritance applied, and the transmission of inheritance cut off his condition (reported by Malik in the Mouwatta', no. 1441, and by Muslim in his Sahih, no. 1625). Ibn Umar (may Allah be pleased with both) reported that the Messenger of Allah said: "no umra nor ruqba: whoever is given umra or ruqba of a property, it is his during his life and his death" (reported by Ahmad, nos. 4906, 5422, an-Nasa'i, nos. 3732, 3733, and Ibn Majah, no. 2382). This hadith is explicit on the voiding of the condition, since the ruqba conditions the return to the donor if the other dies before him.
Jabir (may Allah be pleased with him) reported that "the Messenger of Allah ruled regarding the umra that a man may donate to another, for him and his offspring, excepting: if an event befalls you and your offspring, it is mine and my offspring's, and he said: it belongs to the one to whom it was given and his offspring" (authentic hadith reported by an-Nasa'i, no. 3749). This hadith is likewise explicit on the voiding of the condition: the donor had conditioned the return, yet the Prophet granted him no right of recovery. The transfer of properties, indeed, cannot be estimated at a term, nor can it be established in perpetuity while the condition implies its corruption.
Al-Amrani (may Allah have mercy on him) said: if it were asked why, in the recent opinion, you do not say the donation is void, since the umra requires transfer in perpetuity and its limitation to the recipient's life is a condition contradicting the contract, like "I donate this house to you for a year"? We answer that this condition does not void the umra: it is not a condition laid upon the recipient but upon his heirs; when the condition is not upon the contracting party it does not affect the contract, unlike "I donate my house to you for a year", which is invalid because the defect enters the contracting party's ownership.
Ibn Qudama (may Allah have mercy on him) said: their hadith is from Jabir's own words, and the Prophet's text says: "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" (Muslim 1625); were we to validate this condition, it would be a donation limited by a term, which is impossible. The condition did not corrupt the donation because it is not laid upon the recipient but upon his heirs: as soon as the condition is not upon the contracting party it does not affect the contract. As for the last hadith's words, "he gave a gift to which the transmission of inheritance applied", this addition is Abu Salama ibn Abd ar-Rahman's words, and Ibn Abi Dhi'b transmitted it thus; he detailed it, reporting from the Prophet: "he ruled regarding whoever is given umra of a property for himself and his offspring that it is his definitively, the giver having no right to attach a condition or a reserve to it"; Abu Salama said: because he gave a gift to which the transmission of inheritance applied. (Muslim 1625; an-Nasa'i 3747; al-Mughni 5/400-401; ach-Charh al-Kabir 6/267; cf. Badai' as-Sanai' 6/116; Hashiyat Ibn Abidine 8/428; al-Hindiyya 4/375; Charh az-Zarqani 4/61; ad-Dhakhira 6/216-217; Mawahib al-Jalil 8/19)
The jurists differed over one who says to another: "I make you dwell in my house for your life and your offspring's after you": is it an umra falling under the donation's ruling, or a loan for use? The majority of the jurists, namely the Hanafis, al-Shafi'i as Ibn Qudama related from him, and the Hanbalis, held that these formulas constitute a loan for use, with the right of recovery whenever the donor wishes: uses are only discharged with the passage of time, so they bind only to the extent of what has been taken of them.
The Hanafis said: if the contextual indication is a use, as in saying "my house is yours for dwelling", or "for life as dwelling", or "as charity of dwelling", or "as donation of dwelling", or "the dwelling of a donation", or "it is yours for life as a loan for use", and he hands it over to him, all of this is a loan for use: the mention of dwelling indicates he intended the transfer of uses, for "this is yours", though apparent for transferring the thing, may intend the transfer of the use, attribution to the user and the lessee being a use by custom and by Law. The word "dwelling" is the established term for the use: it becomes a clarification of the ambiguous formula and an indication that he intended the transfer of the use; and transferring the use without compensation is the definition of the loan for use. Likewise, "dwelling" after the mention of donation is its explanation: "donation" may intend the donation of the thing or of the uses, and when he says "dwelling" he specifies the donation of the uses. If one says "the dwelling of a donation", it means the house's dwelling is a donation to you: it is a donation of use, which is the definition of the loan for use.
If he says "it is yours for my life: dwell in it", or "it is a donation: dwell in it", or "a charity: dwell in it", and hands it over to him, it is a donation: he did not define the donation by dwelling as an epithet, but donated the house and then consulted him about what he would do with his property; consultation about another's property is void, so the donation bears upon the thing itself. "Dwell in it" is like "so that you dwell in it", as in "I gave it to you so that you rent it out"; attribution by the letter lam to one capable of ownership indicates transfer. If he says "I make you dwell in this house for your life and your offspring's after you", it is a loan for use: he explicitly used the word of dwelling, which is an act upon the use, not the thing; "and your offspring after you" is a coordination of partnership, meaning its dwelling will be your offspring's after you: it is a donation for them, the mention of offspring being superfluous, for "it is yours" transferred the thing, and once it has left the donor he no longer holds the authority to allot it to another. His words are therefore superfluous, unlike the first formula: after allotting the use by way of loan for use, he retains the authority to allot it to another, so his speech is a loan for use for the recipient and his offspring, with the right of recovery whenever he wishes. (Badai' as-Sanai' 6/118; al-Mabsout 12/96-97; al-Bahr ar-Raiq 7/285; Hashiyat Ibn Abidine 8/493; al-Hindiyya 4/363; Durrar al-Houkkam 6/499)
The Hanbalis said: umra and ruqba of uses are not valid. If the owner of a house says to another "the dwelling of this house is yours for your life", or "I made a munha of the house to you for your life", it is a loan for use; the "Qamous" said of the one who makes a munha of a she-camel that he allots the other her wool, her milk and her young, and that is the munha and the miniha. Likewise if he says "I made a munha of the house's revenues to you for your life", or if the owner of an orchard says "I made a munha of the orchard's dwelling to you for your life", or if the owner of a slave says "I made a munha of his service to you for your life": it is a loan for use and a binding permission to the extent of what was taken of it before the grantor's recovery. It follows that the grantor may take back his munha whenever he wishes, during the beneficiary's life and after his death, for it is a gift of use: uses are only discharged with the passage of time and bind only to the extent of what was taken, and it is voided by the death of either party. (al-Moubdi' 5/370; al-'Odda, Charh al-'Oumda 1/266; Kachchaf al-Qina' 4/373; Charh Muntaha al-Iradat 4/405; Matalib Ouli an-Nouha 4/399; ar-Rawd al-Mourbi' 2/183)
Ibn Qudama (may Allah have mercy on him) treated the question: if he says "its dwelling is yours for your life", the donor may take it back at the moment he prefers, for dwelling is not like the umra and the ruqba. Saying "the dwelling of this house is yours for your life", or "dwell in it for life", is not a binding contract: strictly speaking, it is a gift of uses, which are only discharged with the passage of time and bind only to the extent of what was taken and enjoyed as dwelling; the donor has the right of recovery whenever he wishes, and the death of either party voids the permission. This is the view of most scholars and the muftis: ach-Cha'bi, an-Nakha'i, ath-Thawri, ach-Chafi'i, Ishaq and the people of opinion, and the meaning was transmitted from Hafsa. Al-Hasan, 'Ata' and Qatada said it is like the umra: for him and his offspring, for it is in the meaning of the umra and its ruling applies. It was related from ach-Cha'bi that if he says "it is yours: dwell in it until you die", it is his in his life and his death; if he says "of my house, dwell in it until you die", it returns to its owner: "it is yours" transfers the ownership, hence it is an umra, whereas "dwell in my house" allots only the use, hence a loan for use. Our view is that it is a permission of uses, not binding, like the loan for use, and it differs from the umra, which is a donation of ownership. If he says "this is yours: dwell in it until you die", the formula may mean "yours is its dwelling until you die": its explanation by dwelling indicates that dwelling is what he intended, like "this is yours, its dwelling"; when the formula may intend ownership as well as dwelling, ownership is not removed by mere possibility. (al-Mughni 5/420)
The Malikis said: "I have made umra to you of my house", or "I make you dwell in my house", or any formula indicating the transfer of the use, such as "I donate its dwelling or its exploitation to you for your life", is an umra, that is, a donation by which the recipient owns the house's uses without its ownership. If it is restricted by a term, as "for a year, or ten, or my life", it stands as given; if it is absolute, it is understood for the donor's life; if offspring was added, it does not return to him so long as the offspring is not extinct.
The umra, that is, the umra-thing, returns, after the recipient's death, to the donor as property, or to his heir if he has died: the heir intended is the one of the day of the recipient's death, not the one of the day of return. The umra is like the donation regarding taking possession: possession before the impediment is a condition of its completeness, the recipient being compelled to hand it over to the beneficiary for him to take possession; if the impediment occurs before the beneficiary takes possession, it is void, unless he made serious efforts to claim it before the impediment.
Ibn Abd al-Barr (may Allah have mercy on him) said: with Malik, the formula of umra and i'mar never transfers the ownership of any gift; these formulas are with him like those of dwelling and housing: 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 they were allotted: the umra, the ruqba, the ifqar, the ihbal, the 'ariya, the soukna and the itraq.
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: the recipient may rent it little by little, the rent is not far off, and he may sell the house's uses and his dwelling in it to the one who made umra of it, but not to another. Ibn Rouchd (may Allah have mercy on him) said: when the word of dwelling is used, "I make you dwell in this house for your life", the majority hold that dwelling, or ikhdam, differs from the umra; if offspring is mentioned, Malik equated i'mar and iskan. Al-Hasan, 'Ata' and Qatada equated the soukna and the i'mar: the use never returns to the dweller, according to the majority's opinion on the umra. The truth is that dwelling and i'mar carry one meaning, and the ruling, if offspring is not mentioned, follows the view of the people of the apparent sense. (at-Tamhid 7/113-116; ad-Dhakhira 6/217; al-Ichraf 3/256-257; tafsir al-Qourtouchi 1/299; Mawahib al-Jalil 8/18-19; Charh Mukhtasar Khalil of al-Kharchi 7/111-112; ad-Dasuqi's Hashiya with ach-Charh al-Kabir 5/507-508; Hashiyat as-Sawi 9/243; Charh az-Zarqani 4/60; Bidayat al-Moujtahid 2/249)
The majority of the jurists, namely the Hanafis, the Shafi'is and the Hanbalis, defined the ruqba by near-identical definitions: the one who makes the ruqba says "I have allotted my house to your ruqba", that is, "I donate it to you", in the sense of: "you watch me and I watch you; if you die before me, it returns to me; and if I die before you, the house is yours and your heirs' after you". It was named ruqba from each of the two watching for the other, and the people of the pre-Islamic era were upon this. (al-Mabsout 12/89; Tahdhib al-Lougha 2/234; Badai' as-Sanai' 6/117; al-Jawhara an-Nayyira 4/88; al-Lubab 1/612; al-Ikhtiyar 3/65; Mukhtasar al-Waqaya 2/109; al-'Inaya 12/323; Hashiyat Ibn Abidine 8/493; al-Hindiyya 4/364; al-Hawi al-Kabir 7/539; al-Mouhadhdhab 1/448; al-Bayan 8/140; Rawdat at-Talibin 4/185; asna al-Matalib 2/480; Mughni al-Muhtaj 3/490; Kachchaf al-Qina' 4/371; Charh Muntaha al-Iradat 4/403)
The Malikis said: the ruqba consists of two owners of two houses, or two slaves, or a house and a slave, each of whom says to the other in a single contract: "if I die before you, the two houses together are mine", that is, your house is added to mine; "and if you die before me, the two houses together are yours", that is, my house is added to yours. (Charh Mukhtasar Khalil of al-Kharchi 7/112; ach-Charh al-Kabir with ad-Dasuqi's Hashiya 5/509; Hashiyat as-Sawi 9/245; Tahrir al-Moukhtasar 5/18)
Under the first interpretation, that of the majority, is the ruqba valid as a definitive donation whose beneficiary becomes owner, passing after his death to his heirs like the rest of his property, the condition being voided; or is it corrupted and referred to the loan for use, with the donor's right of recovery whenever he wishes; or is it valid together with its condition of return?
Abu Yusuf among the Hanafis, the Shafi'is in the recent opinion and the Hanbalis in the apparent madhhab held the ruqba's validity: whoever says "I make ruqba of my house to you: if I die before you, it is yours; if you die before me, it is yours and your heirs'" has made a valid donation, the condition being voided; the house belongs to the recipient during his life, disposing of it as he wishes, then to his heirs after him, and if he has none, to the public treasury, never returning to the first, like the umra, by the whole set of proofs reported from the Prophet:
The umra is permitted to its beneficiary, and the ruqba is permitted to its beneficiary.Authentic hadith reported by Abu Dawoud (no. 3558), at-Tirmidhi (no. 1351), an-Nasa'i (no. 3739), Ibn Majah (no. 2383) and Ahmad (no. 14293)
Likewise 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" (Abu Dawoud 3556; at-Tahawi 2/248; al-Bayhaqi 6/175): the Prophet validated the umra and the ruqba and voided the condition of return, for once the thing is owned, the condition does not remove it; it is a condition contradicting the contract, so the contract is valid and the condition void, like his condition in sale of not reselling.
Ach-Chirwani (may Allah have mercy on him) said: the prohibition came by way of guidance and counsel, so that whoever resorts to it is not seized with regret, for a return is imagined that will not occur; not that the umra and the ruqba are blameworthy in themselves under the Law. They are among the instances of the donation, whose ruling is recommendation, as passed at the beginning of the chapter: whoever resorts to them seeking nearness to Allah, obeying the recommended command, is rewarded for them. This must be pondered with the attention it deserves, until there appears to you the difference with the commentator's statement that the prohibition is of mere recommendation; and Allah knows best the reality. (Hawachi ach-Chirwani on Tuhfat al-Muhtaj 7/570)
Ibn Qudama (may Allah have mercy on him) said: the prohibition came to inform them that if they make umra or ruqba, it counts for the recipient and the ruqba's beneficiary, nothing returning to the donors; the context of the hadith shows it: "whoever is given umra or ruqba of a property, it is his during his life and his death". Had an effective prohibition been intended, it would not have prevented their validity: prohibition only prevents the validity of what brings a benefit to the one forbidden; when validity harms the one who performs it, it is not prevented, like divorce during menses; and the umra's validity harms the donor, for his ownership leaves without compensation. (al-Mughni 5/400; ach-Charh al-Kabir 6/265)
As-Soubki (may Allah have mercy on him) said: the validity of the umra and the ruqba is far from analogy, but the hadith takes precedence over every principle and every analogy: a command and a prohibition came regarding the two; were it said that their prohibition is prohibitive and their validity established by the hadith, as we said of the divorced menstruating woman, it would not be far-fetched. Ibn Hajar al-Haytami (may Allah have mercy on him) answered: his statement is subject to scrutiny: rather it is from the hadiths of validity that the prohibition is of mere recommendation, the principle being that for what is permitted to perform, the prohibition concerning it is of recommendation. (Mughni al-Muhtaj 3/490; Tuhfat al-Muhtaj 7/570)
Abu Hanifa and Muhammad held that the ruqba is void: if he says "I make ruqba of this house to you", or explicitly "I have allotted this house to your ruqba", and hands it over to him, it is a loan for use in his hand according to them, and the donor may take it back whenever he wishes. They argued with what ach-Cha'bi reported from Chourayh: "the Messenger of Allah permitted the umra and voided the ruqba", and the two do not lie; and because the saying "my house is yours as a ruqba" suspends the transfer upon a hazard: the meaning of the ruqba is that he say "if I die first, it is yours; if you die first, it is mine"; each awaits the other's death before his own, which is unknown: the ruqba is thus the suspension of the transfer upon a thing wavering between existence and non-existence, and transfers do not tolerate such suspension. It is therefore not valid as a donation, but valid as a loan for use, for he handed it over permitting its use, and that is the meaning of the loan for use. This differs from the umra, where the transfer occurred immediately: the formula "umra" limits the transfer by a term it does not tolerate, so the term is void and the contract remains valid.
Al-Kasani (may Allah have mercy on him) said: Abu Yusuf has no argument in the hadith, for the ruqba may come from the watching (muraqaba), which is waiting, or from the irqab, which is the donation of ownership: if the first meaning is intended, the hadith is an argument for him; if the second, it is not, for that is permitted; and given the possibility, it is no argument, or it is referred to the second meaning to reconcile the two hadiths and safeguard the word of the one who cannot be suspected of contradiction. It thus appears that if the ruqba and the irqab are used in language for the donation of ownership, there is between them no real difference: the intention must be watched, for if he intended the donation of ownership it is valid without disagreement, and if he intended watching for death it is invalid without disagreement. (Badai' as-Sanai' 6/116-117)
Az-Zayla'i (may Allah have mercy on him) said: the summary is that when the transfer occurs immediately with the condition of return at the outcome, it is valid by consensus, since the donation is not invalidated by the condition: it is the condition that is void; and when the transfer is attached to a future time, it is invalid by consensus. The disagreement therefore rests on the interpretation of the ruqba: whoever sees in it an immediate transfer validates it, and whoever sees a deferred transfer does not; it is not a real difference. The same pattern appears in the marriage of freed captives, in the corruption of the fast of one who eats all day, in the nullification of the sacred state by washing the head with khatmi and wearing a garment dyed with usfur. The formula fitting both meanings, the reports can be reconciled: what came of prohibiting the ruqba is referred to voiding the pre-Islamic condition, namely recovery after the beneficiary's death; what came of permission is referred to its being valid with the condition void. The prohibition of the umra is of the same order: Ibn Umar reported "do not make umra nor ruqba..." (reported by Ahmad and an-Nasa'i), and the Prophet said "the umra is permitted to its beneficiary, and the ruqba is permitted to its beneficiary" (reported by Abu Dawoud, at-Tirmidhi and an-Nasa'i); the reports are numerous: some forbid, others validate; by our interpretation the reconciliation is achieved and there is no contradiction. (Tabyin al-Haqa'iq 5/104; cf. al-Ikhtiyar 3/65; Mukhtasar al-Waqaya 2/109; al-Jawhara an-Nayyira 4/88-89; al-Bahr ar-Raiq 7/297; Majma' al-Anhar 3/508)
The Shafi'is in the old opinion, and Imam Ahmad in a version chosen by the shaykh of Islam Ibn Taymiyya, held the validity of the condition. The Shafi'is of the old opinion, as Abu Ishaq related, said: the ruqba belongs to the beneficiary during his life; if he dies while the giver is alive, it returns to the giver; if the giver dies first, it is the beneficiary's during his life then his heirs' after him. (al-Mouhadhdhab 1/448; al-Bayan 8/140-141; Rawdat at-Talibin 4/185; Kanz ar-Raghibin 3/273; an-Najm al-Wahhaj 5/546; Mughni al-Muhtaj 3/490; Tuhfat al-Muhtaj 7/570; Nihayat al-Muhtaj 5/469; ad-Dibaj 2/540)
Ahmad said in this version: if return to the donor at his death is conditioned should he die first, or to another, calling that a ruqba, or an absolute return to him or to his heirs, or if one says "it is for the last of us to die", the condition is valid like the contract, in the most authentic opinion, by the Prophet's saying: "the Muslims are bound by their conditions", and Qasim said: "I only knew people attached to their conditions"; the condition is then applied. Al-Mirdawi (may Allah have mercy on him) said: this is one of the two versions, chosen by the shaykh Taqi ad-Din, and preferred in "al-Hidaya", "al-Madhhab", "Maspouk adh-Dhahab", "al-Moustaw'ab", "al-Khoulasa", "ar-Ri'aya as-Soughra" and "al-Hawi as-Saghir". (al-Insaf 7/134-135; al-Mughni 5/399-400; ach-Charh al-Kabir 6/265; Charh az-Zarkachi 2/213; al-Moubdi' 5/370; Kachchaf al-Qina' 4/372; Charh Muntaha al-Iradat 4/404; Matalib Ouli an-Nouha 4/497)
The Shafi'is in an old opinion and the Hanbalis in a version held that the ruqba is void. As for the Malikis, they interpreted the ruqba unlike the majority: it is not permitted; it consists of two persons each owning a house, or a slave, or one a house and the other a slave, each saying to the other in a single contract: "if I die before you, the two houses are mine", that is, your house is added to mine, "and if you die before me, the two houses are yours", that is, my house is added to yours. It was forbidden owing to the departure from the known way into speculation: if it occurs and is discovered before death, the contract is rescinded; if it is discovered only after death, it returns to the heir as ownership, without the returns proper to habous, owing to the contract's corruption. The place of the prohibition is that both declarations occur in a single contract, one immediately following the other, both parties entering into it; if one of the two says this to his partner, then the other says the like of the first, it is permitted: there is no speculation, and it becomes a bequest. (Charh Mukhtasar Khalil of al-Kharchi 7/112; ach-Charh al-Kabir with ad-Dasuqi's Hashiya 5/509; Hashiyat as-Sawi 9/245; Tahrir al-Moukhtasar 5/18)
The jurists differed over the case where two men each allot his house to the other for his life, on condition that it return to the first if the latter dies before him: is it valid? The Malikis said: if two persons each own a house, or a slave, or one a house and the other a slave, and each says to the other in a single contract "if I die before you, the two houses together are mine", that is, your house is added to mine, "and if you die before me, the two houses together are yours", that is, my house is added to yours, this was forbidden owing to the departure from the known way into speculation: if it occurs and is discovered before death, the contract is rescinded; if it is discovered only after death, it returns to the heir as ownership, without the returns proper to habous, owing to the contract's corruption. The place of the prohibition is that both declarations occur in a single contract, one immediately following the other, both parties entering into it; if one of the two says this to his partner, then the other says the like of the first, it is permitted: there is no speculation, and it becomes a bequest. (Charh Mukhtasar Khalil of al-Kharchi 7/112; ach-Charh al-Kabir with ad-Dasuqi's Hashiya 5/509; Hashiyat as-Sawi 9/245; Tahrir al-Moukhtasar 5/18)
The Shafi'is said: if two men each allot his house to the other for his life, on condition that it return to the house's owner or another if one dies before him, the formula is valid, as passed: it is a ruqba from both sides. If the two partners in a house say "it is for the last of us to die", each one's share becomes a ruqba for his partner. (al-Bayan 8/142; Rawdat at-Talibin 4/187; asna al-Matalib 2/481; Mughni al-Muhtaj 3/490)
The Hanbalis said: if two persons each allot his house to the other on condition that it return to the first if the latter dies before him, it is a ruqba from both sides. (Kachchaf al-Qina' 4/373; Matalib Ouli an-Nouha 4/399)
Among those who validate the ruqba, if the donor conditions the return, saying "I make ruqba of this house to you, and the return is mine", there are two opinions, as passed in detail regarding the condition of return in the umra: reference should be made to it.
The conditions attached to the donation's formula are of two kinds: valid and invalid. The valid condition is the donation with a condition of counter-gift, as will be detailed. The invalid condition is the one contradicting the donation's requirement, such as saying "I donate this to you on condition that you do not give it away or sell it", or "on condition that you give it away or sell it", or "on condition that you give something to so-and-so".
Facing such conditions contradicting the contract's requirement, the jurists differed: is the donation contract valid with the condition voided, or is the donation void in its entirety owing to the corrupt condition, or are both the contract and the condition effective? The Hanafis, the Malikis in an opinion, the Hanbalis in the madhhab and the Shafi'is in an opinion held that the contract is valid and the condition void.
Al-Kasani (may Allah have mercy on him) said: these conditions did not prevent the act from occurring as an immediate transfer, and they contradict the contract: they are thus void and the contract remains valid, unlike the ruqba's conditions, and unlike sale, which these conditions invalidate. Analogy, indeed, would have it that the presence of a corrupt condition does not necessarily interpret the contract it accompanies: its mention in the contract being invalid, it is attached to non-existence, and the contract remains valid; but sale is corrupted by the prohibition that came in it, whereas there is no prohibition in the donation, whose ruling remains upon the principle. The legal proofs of the donation are moreover general and absolute, such as the word of Allah:
"If they willingly give up part of their due, then you may enjoy it with pleasure and ease"
Surah An-Nisa', 4
and the Prophet's saying (peace be upon him): "exchange gifts, you will love one another": it is an encouragement to giving, and the gift is a donation. It also reached us from the Siddiq (may Allah be pleased with him) that he said to Aisha: "I had granted you this and that", and from Umar: "whoever makes a donation for a kinship tie or as charity does not return to it; whoever gave seeking the reward may return to it if the recipient is not content with it" (reported by Malik in the Mouwatta', no. 1440, and by al-Bayhaqi in "al-Koubra", no. 11808, with a chain of trustworthy transmitters), without these proofs distinguishing the donation accompanied by a corrupt condition from the one that is not. (Badai' as-Sanai' 6/117; Ghumaz 'Ouyoun al-Bassa'ir 4/44; Hachiyat Ibn Abidine 8/427; Mawahib al-Jalil 8/6; Minhaj al-Jalil 8/175; Rawdat at-Talibin 4/186; al-Mughni 5/384; ach-Charh al-Kabir 6/264; al-Moubdi' 5/367; al-Insaf 7/133-134; Kachchaf al-Qina' 4/370-371; Matalib Ouli an-Nouha 4/396-397; Manar as-Sabil 2/348-349)
The Malikis in an opinion, the Shafi'is in the madhhab and the Hanbalis in an aspect held that both the contract and the condition are void. (Rawdat at-Talibin 4/186; al-Mughni 5/384; ach-Charh al-Kabir 6/264; al-Insaf 7/133-134)
The Malikis' doctrine is as follows: whoever makes a donation to a man on condition that he neither sell it nor give it away, that is not permitted, unless the recipient is prodigal or a minor: the condition is then imposed upon him as long as he is under guardianship; if it is imposed after the end of guardianship, it is not permitted, whether the child is the donor's or a stranger.
Ibn Rouchd summarized, regarding the donation with the condition of neither selling nor giving away, five opinions taken from what Isa heard:
This last opinion concludes with the following rule: the donation's absolute contract includes the fetus in its mother's womb, as passed; if it is excepted, it becomes a corrupt condition attached to the donation contract, without invalidating it. The basis of this is what is reported from the Messenger of Allah: "whoever is given umra of a property for his life, it is his during his life and his heirs' after his death" (reported by at-Tahawi in "Charh Ma'ani al-Athar" 4/93): he prohibited the umra and then ruled that ownership occurs. (al-Fourouq of al-Karabisi 2/58; Badai' as-Sanai' 6/117-118; al-Mouhit al-Bourhani 6/199; al-Hindiyya 4/381)
The Hanbalis said: it is valid to donate a slave woman excepting what is in her womb: it is a liberality bearing upon the mother and not on what she carries, in the manner of manumission; the child not having been given, the recipient does not become its owner, as with a separated thing or a bequeathed property. It is derived therefrom that this gift is not valid, just as the sale of a slave woman excepting what is in her womb is not valid. (al-Mughni 5/384; ach-Charh al-Kabir 6/264; Kachchaf al-Qina' 4/363; Manar as-Sabil 2/355)
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, not valid with a term, like sale, except for the umra and the ruqba, whose limitation is valid as stated. The Malikis, al-Harithi among the Hanbalis and the shaykh of Islam Ibn Taymiyya held the validity of this limitation. Al-Mirdawi (may Allah have mercy on him) said: his saying "no limitation by a term" is the madhhab followed by the companions, except what the author excepted; al-Harithi mentioned the permission, and the shaykh Taqi ad-Din chose it. With the Malikis, the limited donation is like the waqf: limiting the waqf by a term is valid, and likewise the donation. (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; 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 scholars of the community do not differ that, when the donor has donated a thing whose donation is permitted, the recipient has accepted it and taken possession of it, and it is neither an exchange nor a gift from parent to child, the donation is complete: the donor's ownership has left it and he has no right of recovery. The jurists differed, however, on whether the donation becomes binding by the mere offer and acceptance, taking possession being a condition of completeness, or whether it becomes binding only through taking possession, which is a condition of validity: in that case, if the recipient does not take it, may the donor return to it?
The Malikis in the famous opinion, al-Shafi'i in the old opinion, and Imam Ahmad in a version, beyond the measured, the weighed and the counted, or absolutely according to some, held that the donation becomes binding by the contract alone, taking possession being a condition of completeness and not of validity, by the word of Allah:
"Fulfil faithfully the contracts"
Surah Al-Ma'ida, 1
and the Prophet's saying (peace be upon him):
The one who returns to his gift is like the dog that returns to its vomit.Reported by Bukhari (no. 6574) and Muslim (no. 1620)
without any distinction. The donation is moreover a contract among contracts, whose conclusion does not require taking possession of the object, like the other contracts; it is a transfer of a thing during life, which must therefore become binding by the mere offer and acceptance, whose origin is sale; it is a contract of liberality, which must therefore become binding by the word alone, whose origin is the waqf; and it is a gift, which must therefore become binding by the word itself with the offer and acceptance, like the bequest, the donation being a hiba endowed with offer and acceptance like the donation whose possession has been taken. (al-Ichraf 'ala nakt masa'il al-khilaf 3/254, no. 1097; Rawdat at-Talibin 4/188; ach-Charh al-Kabir 6/250; al-Moubdi' 5/363; al-Insaf 7/119, 121)
The Malikis said: the donation transfers ownership by the word in the famous opinion, even if the donor gives away all his property seeking nearness to Allah, reserving what is left to the bankrupt: the recipient may then take it without the donor's permission, and demand it wherever he refuses, including before the judge, so that he be compelled to make it available to him.
Ibn Abd as-Salam (may Allah have mercy on him) said: acceptance and taking possession are both considered, but acceptance is a pillar, that is, a condition of validity without which the donation is void, and taking possession a condition, that is, of completeness: if it is missing, the donation does not become binding, though valid. Ibn 'Arfa (may Allah have mercy on him) said: the reality of taking possession, in a gift other than to one's son, is the stopping of the donor's right of disposal over the gift, through the effective making available to the recipient or his substitute, such as the custodian. Sight of the thing is necessary for taking possession in the habis, the donation, the charity and the pledge.
The donation becomes void if taking possession is delayed while the donor remains valid, until a debt encompassing his whole property overtakes him, whether this debt predates the donation contract or arose after, by the loss of the condition that is possession; the donor can then no longer hand it over to the recipient, for it is another's property. As for the non-encompassing debt: if the donation exceeds the debt, the recipient takes the surplus; otherwise, he takes what remains. (ach-Charh al-Kabir with ad-Dasuqi's Hashiya 5/496; Charh Mukhtasar Khalil 7/105; Mawahib al-Jalil 8/12-13; at-Taj wa-l-Iklil 5/8-9; al-Bahja fi Charh at-Tuhfa 2/397)
Ibn Abd al-Barr (may Allah have mercy on him) said: the donation with Malik, as I describe it to you, is valid by the donor's word and the recipient's acceptance, and is completed by taking possession and entering into enjoyment; as long as the donor is alive, the beneficiary may demand it from him until taking it: if he takes it, it is completed for him and enters his property; if he does not take it until the donor's death, the donation is void as regards him, for the donor assigned it at the moment of the gift without handing it over until his death, and he ranks with one who would want to extract that gift from his capital after his death, for an heir or another, while he kept it all his life and no longer consented to it after his death: nothing of that is permitted to him. Such is its ruling with Malik and his companions if the donor dies; if the beneficiary dies first, the donation is for his heirs, who stand in his place to demand it until the donor hands it over. (al-Istidhkar 7/231)
The majority of the jurists, namely the Hanafis, the Malikis in an opinion, the Shafi'is in the recent opinion, the madhhab, and the Hanbalis in the madhhab, held that the donation becomes binding only through taking possession: it remains in the donor's ownership, to the point that if he returns to it before taking possession, his return is valid. The donation is a contract of liberality: establishing ownership before taking possession would amount to compelling the donor to what he did not give in liberality, namely the handing over, which is invalid. If either of the two, donor or recipient, dies before the handing over, the donation is void, unlike the correct Shafi'i opinion; the completeness of the donation passes through taking possession, which in the donation holds the rank of acceptance in sale, ownership being established by it. Just as the death of either party after the offer and before the acceptance voids the sale, so it is with the donation: by the donor's death his ownership disappears and his placing at disposal ceases, like that of the agent; and if the recipient dies before taking possession, he was not owner, and the donation is therefore not inherited from him.
They argued with what Malik reported from Ibn Shihab from 'Ourwa ibn az-Zoubayr from Aisha, the Prophet's wife (peace be upon him):
Abu Bakr as-Siddiq had granted me twenty wasq of my property at al-Ghaba. Death arrived: he said: by Allah, my daughter, no one is dearer to me than you in wealth after me, nor harder upon me than you in poverty. I had granted you from my property twenty wasq; had you renewed it and taken possession of it, it would have been yours. This property belongs to the heir: your brothers and sisters, divide it according to the Book of Allah. I said: O my father, had it been this and that, I would have left it: they are only names, who is the other one? He said: the one in the womb of Kharidja's daughter, I see her pregnant.Authentic hadith reported by Malik in the Mouwatta' (no. 1438) and al-Bayhaqi in "al-Koubra" (no. 11728)
Ibn Abd al-Barr (may Allah have mercy on him) said: in this hadith of Aisha, whoever makes taking possession a condition of the donation's validity must take it before the donor's death, before the illness from which his death comes. Malik also reported from Ibn Shihab from 'Ourwa ibn az-Zoubayr from Abd ar-Rahman ibn Abd al-Qari from Umar ibn al-Khattab:
What is the matter with men who grant gifts to their children and then withhold them? If one of them's child dies, he says: my property is in my hand, I gave no one; and if he himself dies, he says: I had given it to him. Whoever grants a gift that the recipient has not taken, such that if the donor dies it goes to his heir, that gift is void.Authentic hadith reported by Malik in the Mouwatta' (no. 1439) and al-Bayhaqi in "al-Koubra" (no. 11729)
Ibn Abd al-Barr said: the judgment of the two caliphs Abu Bakr and Umar is established, and it was reported from Uthmane and Ali that the donation is not valid unless the beneficiary has taken it during the donor's life and holds it exclusively. Abu Abdallah al-Marwazi (may Allah have mercy on him) said: Abu Bakr, Umar, Uthmane and Ali (may Allah be pleased with them) agreed that the donation is not valid without taking possession. (al-Istidhkar 7/231, 232)
Ibn Rouchd (may Allah have mercy on him) said: the scholars differed on whether taking possession is a condition of the contract's validity. Ath-Thawri, ach-Chafi'i and Abu Hanifa agreed to make taking possession a condition of the donation's validity: if it has not been taken, the donor is not bound. Malik said: the contract is concluded by acceptance, and the donor is compelled to hand it over as in sale; if the beneficiary delays claiming it until the donor's bankruptcy or illness, the donation is void; and if he sells knowingly after the delay, the beneficiary has only the price, whereas if the sale occurs immediately, the beneficiary has the gifted property. Taking possession is therefore with Malik a condition of completeness, and with ach-Chafi'i and Abu Hanifa a condition of validity. Ahmad and Abu Thawr said: the donation is valid by the contract, and taking possession is not a condition of it at all, neither of completeness nor of validity: this is the zahirites' opinion. It was reported from Ahmad ibn Hanbal that taking possession is a condition for the measured and the weighed.
The basis of those who do not require taking possession is the analogy with sale and the principle that no taking of possession is required in contracts until evidence establishes it; the basis of those who require it is Abu Bakr's hadith about his gift to Aisha, an explicit text, and Umar's hadith reported by Malik, which is also Ali's opinion: they said it is a consensus of the Companions, no disagreement having been transmitted from them on the matter. Malik, for his part, relied on both orders of proof, the analogy and what was reported from the Companions: as a contract among contracts, taking possession is not a condition of its validity; and owing to the Companions requiring in it the taking of possession to close the avenue Umar described, it is a condition of completeness and a right of the beneficiary, extinguished if he delays until the donor's illness or bankruptcy. (Bidayat al-Moujtahid 2/247; cf. Badai' as-Sanai' 6/123-125; al-Hidaya 3/224; al-Jawhara an-Nayyira 4/60-62; al-Ikhtiyar 3/58-59; Mukhtasar al-Waqaya 2/103-104; al-'Inaya 12/267-268; al-Lubab 1/602; al-Achbah wa-n-Nazair 154; ach-Charh al-Kabir with ad-Dasuqi's Hashiya 5/496; Charh Mukhtasar Khalil 7/105; Mawahib al-Jalil 8/12-13; at-Taj wa-l-Iklil 5/8-9; al-Bahja fi Charh at-Tuhfa 2/397; al-Bayan 8/114-115; al-Wasit 5/214-215; Rawdat at-Talibin 4/188; Mughni al-Muhtaj 3/492-493; an-Najm al-Wahhaj 5/551-552; Kanz ar-Raghibin 3/285; Tuhfat al-Muhtaj 7/577-578; Nihayat al-Muhtaj 5/474-475; ad-Dibaj 2/541-542; al-Mughni 5/380-381; ach-Charh al-Kabir 6/250; al-Moubdi' 5/363; al-Fourou' 4/486; al-Insaf 7/119-121; Kachchaf al-Qina' 4/360; Charh Muntaha al-Iradat 4/394-395; ar-Rawd al-Mourbi' 2/181-182; Manar as-Sabil 2/354-355)
The Hanafis, the Hanbalis and the Shafi'is required that taking possession occur with the donor's permission: without his permission, taking possession is not valid.
The Hanafis said: the validity of taking possession requires the owner's permission, this permission being a condition of the taking's validity in the chapter of sale: if the buyer takes the property without the seller's permission before paying its price, the seller has the right to take it back; how much more in the donation, for sale is valid without taking possession whereas the donation is not valid without it. Taking possession in the donation resembles the pillar, without being one in reality: it resembles acceptance in sale, and acceptance is not valid without the seller's permission and contentment; so likewise taking possession without the donor's permission. Permission is of two kinds: explicit and by indication.
If the donor or the beneficiary dies before taking possession, the donation is void: as for the donor, because his ownership disappears with his death and his placing at disposal ceases, like that of the agent; as for the beneficiary, having died before the taking, he was not owner, and the donation is therefore not inherited from him.
If one donates a thing joined to another and which cannot be the object of a donation alone, such as the fruit hanging on the tree to the exclusion of the tree, the tree to the exclusion of the land, the sword's ornament to the exclusion of the sword, the measure of grain taken from the pile, or the wool on the sheep's back, validity is acquired only by separation and taking: if the taking occurs without the donor's permission, it is not valid, whether the separation and taking occur in his presence or not; the indication by the offer does not exist here, the offer not having occurred validly during the owner's lifetime. If the taking occurs with his permission, it is valid by istihsan, not by analogy. Likewise, if one donates to someone a claim the donor holds against a person: if the recipient takes it with an explicit permission, the taking is valid by istihsan, not by analogy; if he takes it in the donor's presence without the latter preventing him, it is not valid by analogy or by istihsan: there is a difference between the thing and the claim. (Badai' as-Sanai' 6/123-125; al-Hidaya 3/224; al-Jawhara an-Nayyira 4/60-62; al-Ikhtiyar 3/58-59; Mukhtasar al-Waqaya 2/103-104; al-'Inaya 12/267-268; al-Lubab 1/602; al-Achbah wa-n-Nazair 154; Majma' ad-Damanat 2/711)
The Shafi'is said: taking possession must occur with the donor's permission when the latter does not take it himself, whether the property is in the recipient's hand or not: without permission and without compulsion, the taking is not valid, the property is not acquired and it enters the taker's liability, whether the taking occurred during the contract's sitting or after. If the property is absent, the ability to travel to it is required; and whatever the recipient adds to it before the taking goes to the donor, whose ownership remains.
If the donor permits him and then retracts his permission before the taking, his retraction is valid and the subsequent taking invalid; likewise if the one granting or the one granted dies before the taking, the permission becomes void: the messenger cannot deliver the donation or the gift to the beneficiary or his heir without a new permission; likewise in case of the donor's madness, fainting or interdiction concerning him. (al-Bayan 8/114-115; al-Wasit 5/214-215; Rawdat at-Talibin 4/188; Mughni al-Muhtaj 3/492-493; an-Najm al-Wahhaj 5/551-552; Kanz ar-Raghibin 3/285; Tuhfat al-Muhtaj 7/577-578; Nihayat al-Muhtaj 5/474-475; ad-Dibaj 2/541-542)
The Hanbalis in the madhhab said: taking possession of the donation is not valid without the donor's permission: if the recipient takes it without his permission, the donation is not complete and the taking is not valid, for he took the donation without the donor's permission, like the taking after the sitting or as if the donor had prevented him. The handing over is indeed not owed by the donor: it is therefore valid only with his permission, as if the buyer took the goods before paying its price. The donation itself does not count as a permission of taking, the proof being what occurs after the sitting. If the donor permitted the taking and then retracts the permission or the donation, his retraction is valid so long as no taking occurred; if he retracts after the taking, his retraction produces no effect, for the donation is complete. (al-Mughni 5/380-381; ach-Charh al-Kabir 6/250; al-Moubdi' 5/363; al-Fourou' 4/486; al-Insaf 7/119-121; Kachchaf al-Qina' 4/360; Charh Muntaha al-Iradat 4/394-395; ar-Rawd al-Mourbi' 2/181-182; Manar as-Sabil 2/354-355)
The Malikis said: the donation is a transfer of ownership by the word in the famous opinion: the recipient may take it without the donor's permission, and demand it wherever he refuses, including before the judge, so that he be compelled to make it available to him. (ach-Charh al-Kabir with ad-Dasuqi's Hashiya 5/496; Charh Mukhtasar Khalil 7/105; Mawahib al-Jalil 8/12-13; at-Taj wa-l-Iklil 5/8-9; al-Bahja fi Charh at-Tuhfa 2/397)