Islamic Fiqh > Endowments (waqf) and property > Hiba: the gift > The death of the donor or the beneficiary after the contract and before taking possession
Contents
Updated on 25 September 2026 at 6:57 PM
This part belongs to the full section: All sections of this part.
This second part of the chapter on hiba (the gift) examines the effects of the death of the parties on the gift, the taking back of presents given to betrothed women, the gifting of items held by others, the remission of unknown debts, the gift with a compensation attached, the gift between spouses, the gift to close relatives, and the impediments to taking a gift back. The positions of the four schools (Hanafis, Malikis, Shafi'is and Hanbalis) are compared with their Quranic and prophetic proofs and their classical references.
The jurists differed regarding the donor or the beneficiary who dies after the contract and before taking possession (qabd): does the gift become void, or does it remain valid with his heir standing in his place? The Hanafis, the Shafi'is according to one opinion and the Hanbalis according to one opinion held that the gift becomes void by the death of either party after the contract and before delivery, because it is a revocable contract that dissolves upon the death of one of the contracting parties, like agency and partnership.
The perfection of the gift requires taking possession, which plays in hiba the role of acceptance in sale in that it establishes ownership. Just as the death of one party after the offer and before the acceptance annuls the sale, so it is with the gift. Upon the donor's death his ownership disappears and his power of disposal ceases like that of the appointing principal; if the beneficiary dies before taking possession, he was not an owner and nothing passes to his heirs ("Al-Mabsut" 12/56-57, "Al-Jawhara an-nira" 4/62, "Al-Bayan" 8/117, "Al-Hawi al-kabir" 7/552, "Al-Wasit" 5/215, "Rawdat at-talibin" 4/188, "Al-Mughni" 5/381).
The Shafi'is, according to the sahih (sound) opinion of the school, held that the gift does not become void by the death of the donor or the beneficiary, because it becomes binding like a sale with a stipulated option of cancellation. The donor's heir stands in his place for delivery and for authorizing the taking of possession, while the beneficiary's heir takes possession in his capacity as successor. On this basis, if the donor dies, the heir has the choice of taking possession or not.
If either party dies after the offer (ijab) and before the acceptance, or what stands in its place, the gift becomes void in one respect: if the donor died, his right of withdrawal passes to his heir, so the gift no longer binds without his permission; if it is the beneficiary, no authorization is given to his heir, who therefore does not acquire possession without permission ("Al-Bayan" 8/114-115, "Al-Wasit" 5/214-215, "Al-Mughni" 5/380-381, "Al-Insaf" 7/119-121, "Al-Kafi" 2/466-467, "Manar as-sabil" 2/355).
The sahih opinion among the Hanbalis is that the gift does not become void by the death of the donor, whose heir stands in his place for permission and withdrawal; but if the beneficiary dies before taking possession, the gift becomes void. Ahmad said, in the narration of Abu Talib and Abu al-Harith, regarding a man who gave a present that did not reach the recipient before he died: the present returns to its owner as long as it has not been taken.
Umm Kulthum bint Salama reported: when the Messenger of Allah married Umm Salama, he said to her: "I gave an-Najashi a garment and ounces of musk; I see no alternative but that an-Najashi has died, and I see no alternative but that my present will be returned to me; if it is returned to me, it is yours." She said: it happened as the Messenger of Allah said: his present was returned to him; he gave each of his wives an ounce of musk, and gave Umm Salama the rest of the musk and the garment.Reported by Ahmad (27317) and Ibn Hibban in his Sahih (5114)
If the giver of the present dies before it reaches the recipient, it returns to the heirs of the giver, and the messenger is not to carry it to the recipient without the heir's permission. If the giver withdraws before the present arrives, his withdrawal is valid: the gift follows the ruling of the present (hadiyya).
As for the Malikis: if the donor dies before the beneficiary has taken possession, the gift becomes void; if the beneficiary dies before him, his heirs may stand in his place by claiming the gift until the donor delivers it to them. Imam Malik said in "Al-Mudawwana": whoever gives a gift to a man, and the beneficiary dies before taking possession, his heirs take his place in receiving the gift; the donor may not withhold it ("Al-Mudawwana" 15/120, "Al-Istidhkar" 7/231, "Al-Bayan wa-t-tahsil" 13/388, "Al-qawanin al-fiqhiyya" p. 242).
The jurists differed regarding one who sends a gift to a friend through a person, then the donor or the beneficiary dies before the gift arrives: does the gift bind and belong to the beneficiary, or does it return to the donor? And does the ruling differ depending on whether the gift was entrusted to a messenger, to the beneficiary's agent, or not?
The Malikis said: if the donor carries a present for someone during his journey to an absent person, or sends it with a person, then dies before the arrival of the present or of his messenger, the gift becomes void, whether designated for a specific person or not, for lack of acquisition (hawz) before the impediment.
The same applies if the designated beneficiary dies, meaning the one the donor aimed at personally, to the exclusion of his heir, by saying: "this gift is for so-and-so if he is alive". The gift then becomes void for lack of acceptance by the beneficiary, and returns to the donor if he is alive, or to his heirs if he is dead.
Voidness applies as long as the donor has not testified to the destination of the gift in the four cases. If he testified that it is a present for so-and-so at the time of sending or carrying, the gift does not become void by the death of the recipient, whose heir stands in his place, nor by the death of the donor. If he did not designate him by name ("this gift is for so-and-so if he lives, or for his heirs if he is dead"), it does not become void by the death of the beneficiary, whether the donor testified or not.
Likewise, one who hands wealth to someone to distribute it as sadaqa to the poor and needy without testifying to that purpose, the wealth remaining with the distributor until the donor's death: the sadaqa becomes void and returns to the heirs of the donor or to the distributor. If he testified when handing the wealth to the one who distributes, the gift does not become void by the death of the donor or the distributor and reaches the poor and needy, as capital principal. After distribution it is final: if he distributed all or part of it after learning of the impediment, he guarantees the whole in the first case and what was distributed in the second.
Al-Hattab reported: one who gives one hundred dinars in sadaqa to a man and writes to his agent to pay them to him; the agent receives the letter, pays fifty of it, then says: "Go, I will pay you the remaining fifty today or tomorrow"; the giver dies before the recipient has received the remaining fifty: the recipient has no right to any of them if he did not receive them before the giver's death. He only has a right to the fifty already received, because the agent's hand counts as his principal's hand. Ibn Rushd said: this is clear, because the agent's hand counts as the hand of his principal ("Mawahib al-jalil" 8/15).
The Shafi'is said: if someone sends a present to a person who dies before its arrival, the present remains with the giver, because ownership is only acquired through taking possession. Proof: when an-Najashi died before the arrival of the present sent by the Messenger of Allah, it was returned to him and he divided it among his wives. If the giver dies before the arrival of the present, the messenger may only carry it to the recipient with the heir's permission; likewise the traveler who buys presents for his friends and dies before they reach them: they form part of his estate ("Rawdat at-talibin" 4/189, "I'anat at-talibin" 3/296).
The Hanbalis said: if someone gives a present to an absent person and sends it with the beneficiary's messenger or with his agent, then the donor or the beneficiary dies before its arrival, its ruling binds and the gift belongs to the beneficiary. Because the taking of possession by the messenger or the agent counts as his own: death therefore occurs after the gift has become binding and has no effect. But if the donor entrusted it to his own messenger and then dies before its arrival, or the beneficiary dies, the gift becomes void and returns to the donor and then to his heirs, for lack of taking possession; the same ruling applies to the present, explicitly.
Ahmad attested this in the narration of Abu Talib and Abu al-Harith: the present that did not reach the recipient before his death returns to its owner as long as it has not been taken, and in the account of Umm Kulthum bint Salama cited above (Ahmad 27317, Ibn Hibban 5114, whose chain Ibn Hajar judged hasan in "Fath al-bari" 5/222). The voidness then lies in the absence of acceptance when the donor dies after sending his messenger with the present.
On this basis, if the giver dies before the arrival of the gift, it returns to the heirs of the giver, and the messenger may only carry it after the donor's death with the heir's permission, because the right has passed to him. The same ruling applies to the present and the sadaqa, which are two forms of the gift. If the beneficiary or the donor dies before acceptance, the contract becomes void because it was not completed; likewise in case of insanity or fainting ("Al-Insaf" 7/124, "Kashshaf al-qina'" 4/366, "Sharh muntaha al-iradat" 4/397, "Matalib ouli an-nouha" 4/387).
Imam al-Bukhari devoted a chapter in his Sahih titled: when one gives a gift or makes a promise and then dies before it reaches him. 'Ubayda (as-Salmani) said: if he dies while the present has been separated and the recipient is alive, it belongs to his heirs; if it has not been separated, it belongs to the heirs of the giver. Al-Hasan said: whichever of the two dies first, the gift belongs to the heirs of the recipient if the messenger has taken it.
Jabir, may Allah be pleased with him, said: the Prophet said to me: "If the wealth of Bahrain arrives, I will give you this much, three times." But he died before that wealth arrived. Abu Bakr ordered a herald to proclaim: whoever has with the Prophet a promise or a debt, let him come to us. So I came and said: the Prophet had promised me; and he threw money to me three times.Reported by al-Bukhari (2458)
The jurists differed regarding the man who asks for a woman's hand in marriage, gives her a present or spends on her, and then does not marry her for some reason: may he take back what he gave her?
The Hanafis said: one who asks for the daughter of a man in marriage and sends her something, without her father marrying her, recovers what was sent as mahr in kind if the item is intact; if it changed through use, nothing is owed in compensation, because it was entrusted to him by its owner. It is an exchange (mu'awada) that was not completed, hence the lawfulness of recovery. The same applies to anything sent as a present that remained intact, excluding what perished or was consumed; destruction and consumption prevent recovery, as does anything else that prevents it, such as cloth that was dyed or mixed.
If he spent on another's waiting woman ('idda) hoping to marry her when her waiting period expired, and she then refused: he takes back his spending if marriage was stipulated in the maintenance ("I will spend on condition that you marry me"), whether she marries him or not; and likewise, according to the sahih opinion, if nothing was stipulated. According to another opinion, he takes nothing back if she married him while he had stipulated it; if she refuses and no condition existed, he takes nothing back according to the sahih opinion.
Ibn Nujaym said: the relied-upon doctrine is what al-'Imadi mentioned in his "Fusul": if she marries him, no recovery whatsoever; if she refuses, he is entitled to recover what he gave her; if she ate of it with him, no recovery whatsoever ("Al-Bahr ar-ra'iq" 3/199-200, "Durrar al-houkkam" 4/145, "Ad-durr al-moukhtar" 3/153, "Al-Hindiyya" 1/328, "Tanqih al-fatawa al-hamidiyya" 1/159).
Ibn Abidin reported in "Tanqih al-fatawa al-hamidiyya" a question about a man who asked for a pubescent virgin in marriage, sent her presents that were consumed, without her father marrying her: the answer was that what was sent as mahr is recovered in kind if intact, or in value if destroyed, and the same applies to the present that remained intact. In "Al-Fatawa al-khayriyya", a question was asked about a man who asked for another man's sister in marriage and gave her what is called the milak and dirhams, according to the custom of the bride's family of taking food with it, without the marriage being concluded: the answer was that he may take it back, provided he did not give his permission; if he permitted them to use it and feed people, it is as if he had fed them himself. It is also stated there: he does not take it back.
In the same work, in the chapter on maintenance, a question was asked about a man who asked for a woman in marriage and spent on her so that she would marry him, then she refused and married another: the answer was that he recovers his spending. The author says in "Al-Hidaya" (al-Khaniyya), after mentioning the two opinions, that he should recover it, because if he knew he would not spend without marrying her, that counts as a condition even without explicit wording. In "At-tatimma": regarding one who sent sugar, almonds, walnuts and dates to the bride's father, then the father broke off the engagement: if the father distributed these goods to people with the giver's permission, the giver loses his right of recovery; without permission, he keeps it. This is the preferred view because of the argument in "Al-Hidaya" and the apparent position of the school: one should not depart from it; and Allah knows best. Such is the end of what is in "Al-khayriyya": let it be pondered ("Tanqih al-fatawa al-hamidiyya" 1/148-149).
The Malikis said: giving a present to a woman in 'idda of widowhood or of another's irrevocable final divorce is lawful, but maintaining her (nafaqa) is not, being forbidden like courtship; if he gave or spent and she then married another, he takes nothing back. Shaykh al-'Ulaychi reported from "At-tawdih" that the woman not in 'idda follows the same ruling.
Al-Laqani reported from "Al-Bayan" that this applies if the turning away comes from her: if she turns away from him, he recovers his spending, because the purpose for which he gave was not fulfilled. In "Al-mi'y ar": the man may take back what he spent on the woman or gave in the khul' with her first husband, if the refusal comes from her side; if the impossibility comes from his side, there is no recovery, because placing at disposal counts as taking enjoyment. All this holds unless there is a stipulation or a custom of recovery, in which case it is applied unanimously ("Manh al-jalil" 3/264-265).
"Hashiyat as-sawi" specifies that the gift lawful during 'idda concerns food, fruits and the like, not maintenance, which is forbidden; if she marries another, no recovery. The same applies to betrothal to a woman not in 'idda who turns away from him, unless the turning away comes from her side, except for a custom or a stipulation. According to another opinion, if the turning away comes from her side, he recovers, because it is the equivalent of something not fulfilled; this clarification is due to ash-shams al-Laqani ("Hashiyat as-sawi" 4/423). Al-Kharchi said: giving to a woman in 'idda is lawful, because the present nourishes affection, unlike explicit courtship during 'idda, and is different from maintenance; if he spent or gave and she then married another, he takes nothing back; the same ruling applies to betrothal to a woman not in 'idda who marries another ("Charh moukhtasar khalil" 3/171).
The Shafi'is said: one who asks for a woman in marriage and then spends on her in order to marry her may take back what he spent from the one to whom he gave it, whether food, drink, sweets or ornament, whether he or his respondent turned away, or one of the two died; because he only spent for the marriage: he recovers if the thing exists, or its equivalent if it perished. If the gift was made with the intention of a present and not of marriage, the absence of recovery is unanimous, because the context of the betrothal prevails in presuming that he only sent or gave in order to bring that betrothal to completion.
They said: if the suitor himself, his agent or his guardian gave some food, drink or clothing to his betrothed or her guardian, then aversion occurred from both sides or from one, or the death of both or of one, the giver or his heir takes back all that he gave if it was before the contract. Likewise after the contract if he divorced before consummation or died, but not if she died; and there is no recovery after consummation in any case ("Hashiyat al-jamal" 4/129, "I'anat at-talibin" 3/295).
The Hanbalis said: the present between spouses is not part of the mahr by explicit text. What the husband gave before the contract, if they promised to marry him and did not fail him by marrying her to another, he takes it back: this is the view of Shaykh Taqi ad-din, because he gave it in exchange for the like of marriage and it was not delivered to him; if he was the obstacle, no recovery, like the muja'il (one who stipulates a task) who does not perform his part.
The Shaykh of Islam Ibn Taymiyya said: if the suitor agreed with the woman and her guardian on marriage without a contract, then gave them something other than the dowry for that reason, and she died before the contract, he does not recover what he gave them, because the non-fulfillment is not on their side; by analogy, if he dies, his heirs recover nothing. What was received because of the marriage, such as what is called the makila, follows the ruling of the mahr as regards what he cancels of it, takes half of it, or confirms it; it belongs to her, and the guardian owns nothing of it, unless she gives it to him according to his stipulation. Exception: the father, who may take, by his stipulation or without stipulation, from her wealth whatever he wants by his stipulation, and what was written in the mahr in his favor even if he divorces her, because the custom is that he takes it.
If the marriage is annulled by a coercive dissolution, such as annulment for lack of sufficiency (kafa'a) before consummation, everything is returned to him, that is to the husband: the whole dowry and what he gave, even as a present, explicitly. Al-Athram reported it, because the situation indicates that he gave on condition that the contract endure; when the contract ceases, the right of recovery is established, like the gift with a condition of compensation. Al-Bahouti said: the analogy is that if she gave him something before consummation and he then divorced her or the like.
Likewise, everything is returned to him, even the present, in a consensual dissolution that removes the mahr, as previously stated; the present remains with the wife despite an annulment that maintains the dowry in whole or in half: he therefore has no recovery over the present, because the end of the contract does not come from her. If the bestowal was meant for others than the two contracting parties because of the contract, such as the broker's fee, the measurer's or weigher's fee: Ibn 'Aquil said in "An-nazariyyat" that if a sale is rescinded by mutual consent (iqala), the broker does not return what he took; if the rescission is not consensual, such as annulment for a defect, the broker returns it, because the sale was suspended between binding and non-binding. The analogy with a marriage annulled for the husband's insufficiency or the appearance of a defect: he returns what he took from the two spouses or from one, because he mediated a contract that was not honored; but nothing is returned if the marriage is dissolved by apostasy, breastfeeding or mutual khul' ("Kashshaf al-qina'" 5/170-171, "Sharh muntaha al-iradat" 5/271-272, "Matalib ouli an-nouha" 5/215-216).
The jurists differed regarding one who gives as a gift a deposit, a debt, a loan, a pledge or usurped property to the one who holds it or to another: is such a gift valid? Is acceptance required? The majority of jurists allow the gift of these items to the one who holds them; as for the gift to someone other than the holder, it is not valid according to the Shafi'is (the most sahih opinion) and the Hanbalis, with a detail to be explained.
The Hanafis said: if the gifted item is in the beneficiary's hand, he acquires ownership of it through the gift, without a new taking of possession, because it is already in his hand and taking is the condition. The gift of the deposit to the depositary, of the loan to the borrower, of the usurped item to the usurper requires no new possession, the beneficiary then truly holding the item, like a father giving to his child: a perfect gift by the mere contract, without a new taking.
The same applies to anything entrusted as a deposit (amana) in someone's hand and given to that person: it is lawful and ownership is established, the taking of the deposit standing in place of the taking of the gift; this is an istihsan (equitable preference), the qiyas requiring that he not take as long as he cannot free the item. The basis of the istihsan: the gift is an act of benevolence, and the taking of the deposit stands in its place, unlike a sale to the depositary, because sale is a contract of guarantee, and the taking of the deposit does not stand in place of taking the guarantee.
If the item is guaranteed in someone's hand by an equivalent or by value, like usurped property or property acquired by an invalid sale, and the donor gives it to the holder: the gift is valid and the guarantee is extinguished, possession becoming free of guarantee. Conversely, if the item is guaranteed by another, like a pledge or a sold item, and the owner gives it to the holder, the latter takes possession only by means of a fresh taking after the gift contract. For release through the gift is not valid and the taking does not count as the taking of a deposit: homogeneity of the two takings is required for them to be equivalent.
The rule: when the two takings are homogeneous, one stands in the place of the other; when they differ, the guaranteed taking stands in the place of the non-guaranteed one, but not the reverse. Thus, if usurped property or property acquired by an invalid sale is in his hand and he buys it through a valid sale, that suffices without new possession, the two takings concurring; likewise the loan or the deposit given to the holder. Conversely, if the deposit or the loan has been sold by the holder, a new taking is required, because the taking of the deposit does not stand in place of taking the guarantee. If it is a pledge, a renewed taking is necessary; it has been narrated that it is not.
The scholars said: the gift of a debt to the debtor is lawful by qiyas and istihsan. If the creditor gives the debtor the debt owed by him and the latter accepts it, the donor cannot retract: the debt is extinguished, because he takes the debt through his liability (dhimma) and acquires ownership of it by acceptance; the extinguished debt vanishes, and retraction becomes impossible as with an item that perished in his hands. If the beneficiary answers: "I do not accept it", the debt remains as it is, for that is a refusal of the gift.
As for the gift of a debt to someone other than the debtor, it is likewise lawful if the debtor authorized the taking and the beneficiary took: this is the istihsan; the qiyas requires prohibition even with authorization. The argument of the qiyas: taking is the condition of the gift's validity, and what lies in liability cannot be seized, unlike the gift to the debtor, whose liability is in his taking, so that the debt is in his possession through the intermediary of liability. The argument of the istihsan: what lies in liability can be delivered and taken, the debtor being compelled to it unless he has been seized through actual taking; explicit authorization of the taking remains required, taking in the donor's presence not sufficing, unlike the gift of an item.
When the donor orders him to take, he makes him his substitute in the taking: the beneficiary's taking counts first for the donor and then for himself; or else the effect of the gift only occurs after the taking, after which the item becomes capable of appropriation, unlike sale whose effect is immediate. If the beneficiary is absent and unaware of the gift until his death, the gift is valid and the remission takes place: for the gift suffices with a single declaration, is completed by the offer, and only becomes void through refusal, which no longer occurs ("Tuhfat al-fouqaha" 3/165, "Bada'i' as-sana'i'" 6/119, "Al-Mabsut" 12/70, 85, "Al-Mouhit al-bourhani" 6/158, "Al-Bahr ar-ra'iq" 7/284, "Moukhtasar al-wiqaya" 2/104-105, "Ibn Abidine" 8/421).
The Malikis said: whoever gives something to the holder (a loan, a deposit or a debt owed by him): if the beneficiary knows and accepts before the donor's death, the gift is valid unanimously. If he does not say "I accept" before the donor's death, then accepts afterwards or refuses, the gift becomes void according to Ibn al-Qassim, who is the doctrine, because the item did not pass into the beneficiary's ownership before the death, acceptance being the condition of transfer. Ashhab said: the gift is valid and belongs to the beneficiary, because the item in his hand is closer to acquisition, unless he says "I do not accept".
If he was unaware of the gift until the donor's death, the gift becomes void unanimously, apart from the narration according to which the gift requires no acceptance; ignorance is no excuse. If he claims to have accepted before the death and the heir disputes it, the burden of proof lies on him: absent proof, the gift becomes void for lack of acquisition, a condition of the validity of ownership, and the gift returns to the donor's heirs. For the holder's acquisition was first on behalf of another's right, the depositary donor: his hand counts as the donor's hand, as if the item remained in his hand until he died. The deposit has as equivalents the debt and the taking of a building, an animal or other.
If he gives the item to someone other than the holder and there is no acquisition before death, the gift becomes void in the following three cases: knowing and accepting before death; knowing before death and accepting after; or neither knowing nor accepting until after death ("Adh-dhakhira" 6/241, "Charh moukhtasar khalil" 7/107-108, "Ach-charh al-kabir" with "Hashiyat ad-dasouqi" 5/499, "At-taj wa-l-iklil" 5/11, "Manh al-jalil" 8/187).
The Shafi'is said: the gift of the deposit to its depositary is valid and requires no authorization of taking according to the sahih opinion; likewise the loan given to someone other than the borrower, and usurped property to someone other than the usurper if he can extract it, otherwise not. The gift of a debt to the debtor, or the sadaqa made of it, counts as a remission (ibra'), requiring no acceptance according to the most sahih opinion, considering the meaning; according to another opinion, acceptance is required without the gift binding until a period allowing the taking has elapsed, considering the literal wording.
If the creditor gives his debt to someone other than the debtor, the debt being established or the debtor solvent: two opinions, the more sahih being that the gift is invalid, because he cannot deliver the debt: only actual items are taken from debts, and taking in the gift applies only to what the contract addresses. According to the second opinion, the gift is valid, because liabilities circulate like items: a man buys with an actual item of his wealth and with the price inscribed in his liability, sells likewise, and what may validly be sold and bought admits of gift.
On this second opinion, two further opinions: the gift of a debt requires authorization of taking and the taking, like the gift of an item; or it requires neither, which is the most sahih opinion, by analogy with the hawala in which taking is not considered. As for the non-established debt, its gift to someone other than the debtor is not valid categorically.
If one gives a poor man a debt owed by oneself or by another with the intention of zakat, it does not count: as regards the debtor it would be a forbidden substitution, and as regards another a transfer of ownership, equally forbidden. If he says: "I have made sadaqa of my wealth upon you", the remission takes place.
The Hanbalis said: if the creditor remits his debtor, gives him his debt as a gift or transfers it to him by hawala, he is released, even if he retracts and the debtor does not accept; for it is a relinquishment (isqat) that requires no acceptance, like the relinquishment of retribution, of the right of preemption or of the punishment for false accusation, and like manumission and divorce. If he says: "I have made sadaqa of this debt upon you", that is valid: the Quran employed the word sadaqa for remission:
"...the compensation handed over to his family, unless they give it as sadaqa."
Surah An-Nisa, 92
If he says: "I have pardoned you this debt", that is likewise valid:
"...unless they waive it, or the one in whose hand is the knot of marriage waives it."
Surah Al-Baqara, 237
which refers to the remission of the dowry. If he says "I have released you from it", it is valid by the use of the proper term; and if he says "I have made you its owner", it counts like the gift.
If he gives the debt to someone other than the debtor, the gift is not valid according to the sahih opinion of the school: he cannot deliver the debt, by analogy with sale; the gift requires a specific existing item, absent here, except towards his guarantor, where the gift is valid because the debt is attached to his liability. According to one opinion it would be valid, because neither the beneficiary nor the donor suffers uncertainty, the gift then counting like that of an item. Gifts of items that cannot be delivered are also not valid: usurped property to someone other than the usurper, a bird in flight, a fish in the water, a runaway or strayed slave, and the pledge, because these items do not lend themselves to taking, which is part of the reality of the contract; the delivery of a pledge is religiously impossible ("Ach-charh al-kabir" 6/255-256, "Al-Mubda'" 5/365, "Al-Insaf" 7/127-129, "Kashshaf al-qina'" 4/363, 367, 370, "Manar as-sabil" 2/356).
Ibn Qoudama said: if he gives him an item in the beneficiary's hand, such as a deposit or usurped property, the apparent wording of Ahmad indicates that the gift binds without taking or lapse of time; for in the narration of Ibn Mansour: if he gives something to his wife and she does not take it, neither of them has an option of cancellation, she is with him in the house: taking and time are not considered, her hand counting as the holder's. Al-qadi (al-Maqdisi) said that a period allowing the taking must elapse; another narration from Ahmad requires permission to take, whose argumentation has been given for the pledge. Ash-Shafi'i's madhhab follows ours in this divergence over permission and time ("Al-Mughni" 5/381, "Kashshaf al-qina'" 4/363).
Imam al-Bukhari devoted a chapter in his Sahih to the gift of a debt owed by a man, citing Shou'ba: it is lawful, and al-Hasan ibn 'Ali who gave a man the debt owed to him. The Prophet said:
Whoever has a right against someone, let him pay it to him or release himself from it.Reported by al-Bukhari in his Sahih
Jabir said: my father was killed while he had a debt; the Prophet asked his creditors to accept the fruit of my orchard so as to release my father. 'Abdan reported that Ibn Shihab said: Ibn Ka'b ibn Malik informed me that Jabir ibn Abdallah told him that his father was killed as a martyr at Uhud and the creditors pressed hard. Jabir went to the Messenger of Allah, who asked the creditors to accept the fruit of the orchard; they refused; the Messenger of Allah neither gave them the orchard nor cut it down for them, but said: "I will come to you tomorrow, Allah willing."
The next morning he walked among the palm trees and invoked blessing upon their fruit; Jabir harvested it, paid their dues, and some fruit remained. Then he informed the Messenger of Allah, who was sitting, and the latter said to Omar: "Listen, while remaining seated: O Omar." Omar said: "How could it be otherwise? We know that you are the Messenger of Allah; by Allah, you are the Messenger of Allah." ("Sahih al-Boukhari" 2/918-919)
Al-hafiz Ibn Hajar said in "Fath al-bari": the title of the chapter on the gift of a debt means that it is valid even without direct taking from the debtor. Ibn Batal said: the scholars do not differ over the validity of remitting a debt when the release is accepted; they differ over the gift of one man's debt to a third party: those who require taking for the validity of the gift do not validate it, the others validate it; Malik nevertheless requires that the deed of debt be handed over, or witnessing and declaration in the absence of a deed. Among the Shafi'is there are two opinions: al-Mawardi ruled it invalid, al-Ghazali and his followers validated it, as did al-Imrani; and this disagreement parallels that over the sale of a debt, the gift being more fitting if sale is admitted.
The lesson of the hadith: the Prophet placed on the same footing paying the right and releasing it, without requiring taking for the latter; and if the gift of a debt were not lawful, the Prophet would not have asked Jabir's creditors to accept the fruit of the orchard, which would have amounted to releasing their debt ("Fath al-bari" 5/224). Ibn al-Qattan al-Fasi said: if a man gives his wealth to a man as a gift and remits him, and the release is accepted, that is lawful with no known disagreement ("Al-Iqna' fi masa'il al-ijma'" 3/1637, no. 3211).
The jurists differed over the remission of an unknown debt, such as one whose amount escapes the creditor: is such remission valid absolutely, whether the creditor can or cannot know the amount; forbidden if he can know it and lawful otherwise; or forbidden absolutely? The Hanafis, the Malikis, ash-Shafi'i in the old school (al-qadim) and the Hanbalis held the absolute validity of remitting the unknown.
Umm Salama, may Allah be pleased with her, reported that two men disputing over an inheritance that had perished, with no proof between them, came to the Messenger of Allah, who said: "You bring me your disputes, yet I am only a human being: it may be that one of you is more skillful than the other in his argumentation. I only judge between you according to what I hear: whoever is granted a share of his brother's right, let him not take it, for I only cut out for him a piece of the Fire which he will come carrying knotted around his neck on the Day of Resurrection." The two men wept and each said: my right belongs to my brother. He said: "Since you say this, go, divide it, seek the right, then draw lots, and let each of you release his companion."Hasan hadith: reported by Abu Dawoud (3584), Ibn Abi Chayba (22974), Ahmad (26760), Abu Ya'la (6897), at-Tahawi in "Charh ma'ani al-athar" (4/154) and al-Hakim (7034)
For remission is a relinquishment, valid for the unknown, as in "from one dirham to a thousand"; and need calls for releasing liability, with no way of knowing what it contains: if the validity of remission depended on knowledge, the door of pardon between Muslim brothers would be closed, which would be forbidden like refusing manumission. Al-Kasani said: the proof of the lawfulness of remitting unknown rights is the preceding hadith; and on this model, the Muslims of later generations have sanctioned by implicit consensus the lawfulness of their transactions without objection ("Bada'i' as-sana'i'" 5/173, "Charh fath al-qadir" 6/397-398, "Tabyin al-haqa'iq" 4/43, "Al-'Inaya" 9/86-87).
Imam al-Qarafi treated the twenty-fourth distinction between the rule by which ignorances and uncertainties (gharar) produce their effects, and the rule by which they do not in dispositions. Authentic hadiths prohibit the sale of the uncertain and the unknown; the scholars then differed: ash-Shafi'i generalized to dispositions, forbidding ignorance in the gift, the sadaqa, the remission, the khul' and the compromise. Malik gave details, distinguishing the domain of exchanges aimed at increasing wealth, where the uncertain is to be avoided, and that of acts having no such aim, where it is not: dispositions divide in his view into two extremes and a middle.
The first extreme is pure exchange, where ignorance is to be avoided except for customary necessity; the second is pure benevolence, with no aim of increase, such as sadaqa, gift and remission: these acts do not aim at enrichment, and if the benefit fails the beneficiary, no harm results to him since he spent nothing. Unlike exchange, where the loss of the counterparty justifies forbidding ignorance, the wisdom of the Law has therefore required breadth in benevolence, with the known as with the unknown, all the easier given the frequency of the fact. Whoever gives his runaway slave may find him and benefit from him without harm if he does not find him, since he spent nothing: this is a remarkable fiqh; and the hadiths on ignorance concern only sale and the like.
The middle is marriage: from the angle where wealth is not the sought aim, ignorance and uncertainty would be absolutely lawful there; from the angle of Allah's saying "that you seek (wives) with your wealth" (Surah An-Nisa, 24), ignorance and uncertainty are excluded from it. Faced with this dual aspect, Malik took the middle way, admitting minimal uncertainty but not major uncertainty, such as an undesigned slave or the furnishings (chou'ra) of a house, but not the runaway slave nor the strayed camel which have no fixed reference; the khul' was attached to the first extreme, because the dissolution of the marriage bond does not belong to exchange and divorce takes place without compensation, like the gift. Such is the distinction between the two rules and the reference of the two chapters: this is the fiqh according to Malik ("Al-Fourouq" 1/347-349).
The Hanbalis said: remission of the unknown is valid, whether it is unknown to both parties or to one, whether the amount, the description or both are unknown, whether its knowledge is impossible or possible; for it is a relinquishment of a right, effective with knowledge and ignorance alike, like manumission and divorce, according to the hadith of the two disputing coheirs. But if the debtor knows the right and conceals it from the creditor for fear that, knowing it, he would not consent to the remission, the remission is not valid, for it involves deception, and precaution against it was possible.
If he remits the debtor one hundred dirhams while believing he owes him nothing, although he owes him one hundred: two opinions on validity: the remission is valid because it coincided with his actual right and he relinquished it as if he had known; or it is not valid, because he remitted what he did not believe owed, which is not a remission in reality. The basis of these two opinions is the analogous question of one who sells property of his deceased believing it still remains to him, whereas the estate has already passed to him: is it valid? Two opinions. If the creditor remits the debtor "from one dirham to a thousand", the remission is valid for a thousand and less. Remission of a debt before it becomes due is not valid.
Among the cases of remitting the unknown: one who has two debts against the same person and remits one without designating it, or a debt against each of two persons and remits one without designating it: the remission is valid and the burden of specification lies on the one remitting, according to al-Halwani and al-Harithi. The doctrine: remission with an ambiguous object is not valid, as in "I remit one of my two debts", by analogy with "I give as a gift one of these two slaves" or "I guarantee you one of these two debts" ("Al-Mughni" 5/385, "Ach-charh al-kabir" 6/256, "Al-Insaf" 7/127-129, "Kashshaf al-qina'" 4/367-368, "Matalib ouli an-nouha" 4/393).
The Shafi'is and the Hanbalis according to one narration held that remission of the unknown is not valid absolutely, whether the creditor can know it or not, as when the debtor conceals the debt for fear that the creditor, knowing it, would not remit him; for remission is a removal of ownership that cannot occur in ignorance, like the gift. The Shafi'is said: remission of an item is invalid categorically; remission of a debt unknown in genus, amount or description is invalid in the modern opinion (jadid), because remission depends on consent, inconceivable in ignorance.
Avoidable ignorance has no effect: for circulating currency, knowledge of the number suffices; in remission of one's inherited share, knowledge of the amount of the estate suffices, even without knowing the amount of one's share. The debtor's acceptance is not required, and refusal does not cause reversion, because of the relinquishing nature of the act. The way of remitting the unknown, that is the lawful device for its validity, consists in remitting the debtor an amount that the one remitting knows is not less than his debt, such as remitting a thousand while knowing the debt does not exceed it, though doubting whether it reaches it. If he says "I remit you from one dinar to one hundred dinars" while knowing his claim is of that order, the remission is valid: ignorance is only forbidden because of uncertainty, which disappears once the total is accepted.
If someone remits another a specified debt of one hundred riyals while believing he holds nothing, and it then appears that the debt existed at the time of the remission, his deceased having left one hundred riyals with the debtor: two opinions: the remission is valid because it coincided with the due date, reality being decisive; or it is not, for it is a contract of release made in jest. If he says "I have made sadaqa of the debt I hold against you", that is valid, remission by the wording of sadaqa, according to the verses of An-Nisa 92 and Al-Baqara 280 ("if he is in hardship, let him wait until ease; and that you give it as sadaqa is better for you"), where the word sadaqa designates remission in both verses.
This indicates the validity of remission by the wording of sadaqa, the validity of sadaqa upon the rich as upon the poor, and the validity of supererogatory sadaqa to the Banu Hashim and the Banu al-Mouttalib, the verse making no distinction. The disagreement between the old and the new school rests on the nature of remission, transfer of ownership or relinquishment: if it is a transfer, which is correct, remission of the unknown is not valid; if it is a relinquishment, it is. Its bearing appears when the one who backbit says to his victim "I backbit you, make me lawful" without knowing in what: is he released? Two opinions: yes, for it is a pure relinquishment, like the master who pardons retribution without knowing the limb that was cut; no, which is more correct, because the aim is consent, impossible regarding the unknown, and this differs from retribution based on predominance and clan solidarity, unlike the relinquishment of injustices ("Al-Bayan" 8/143, "Ach-charh al-kabir" 5/157, "Rawdat at-talibin" 3/450-451, "Moughni al-mouhtaj" 3/168, "Al-Mughni" 5/385, "Al-Insaf" 7/127-129).
The Hanbalis, according to a narration chosen by Ibn Qoudama and others, distinguished the debt whose amount can be known, whose remission is not valid, from that whose knowledge is impossible, whose remission is valid; according to another wording of Ahmad, remission is not valid even in ignorance of the debt, unless knowledge is impossible ("Al-Mughni" 5/385, "Al-Insaf" 7/129).
The principle of the gift is that it belongs to contracts of benevolence, not to exchanges: the beneficiary owes no compensation to the donor. The scholars differed over a gift issued with a condition of compensation against the gifted thing, as in "I give you this house on condition that you reward me with a car": is such a condition valid? The majority of jurists, Hanafis, Malikis, Shafi'is according to the most apparent opinion and Hanbalis according to the doctrine, admitted it, relying on this hadith of Abu Hourayra:
The giver of a gift has more right to take back his gift as long as he has not been compensated for it.Reported by Ibn Maja (2387), al-Bayhaqi in "As-sounan al-koubra" (11804), ad-Darqoutni (3/44) and ad-Daylami (4/435); al-Mounaoui (6/371) reports from Ibn Hajar that its chain is weak
That is, as long as he has not been indemnified: the Prophet made the donor more entitled to take back his gift as long as the compensation has not reached him: this is an explicit text on this chapter. The Prophet also said: "Whoever gives a gift without being compensated has more right to his gift, except towards a close relative" (al-Bayhaqi, "As-sounan al-koubra" 11805). And Malik reported in the Mouwatta from Omar ibn al-Khattab:
Whoever gives a gift for maintaining the ties of kinship or as sadaqa, there is no taking it back; and whoever gives a gift thinking he aimed only at reward has the right to take back his gift if he is not satisfied with it.Sahih statement attributed to Omar: reported by Malik in the "Mouwatta" (1440) and al-Bayhaqi (11808)
The Hanafis said: the gift with a condition of compensation is lawful according to these hadiths, and constitutes a gift at the outset and a sale at the end ("Al-Mabsout" 12/79, "Bada'i' as-sana'i'" 6/128, "Al-Ikhtiyar" 3/62-63, "Al-Jawhara an-nira" 4/74-75, "Tabyin al-haqa'iq" 5/98, "Al-Hindiyya" 4/393-394).
The Malikis said: the gift with a condition of reward is lawful, whether the reward is specified or not, as in "I give you this for one hundred (dirhams), or on condition that you reward me": specification of the reward is not required, by analogy with marriage with delegated dowry (nikah at-tafwid), a contract without mention of the dowry. The reward becomes due through its specification, made by the beneficiary or the donor with the other's consent: "I give you this on condition that you reward me with such a thing for such a specified thing, present or known absent": that is lawful, and neither party may retract afterwards, as in a concluded sale, even without taking possession of the gift, because he committed to it in a specified manner: if he is not compensated, he withdraws, according to Omar's hadith. If the reward is not specified, that is likewise lawful: the contract binds the donor only after taking possession, and binds the beneficiary only after alteration of the gift by increase or diminution ("Al-Istidhkar" 7/234, "Adh-dhakhira" 6/277, "Ach-charh al-kabir" with "Hashiyat ad-dasouqi" 5/517, "Mawahib al-jalil" 8/23-24).
The Shafi'is, according to the most apparent opinion, said: if someone gives something with a known reward, as in "I give you this on condition that you reward me with such a thing", the contract is valid according to the most apparent opinion in consideration of the meaning: it is an exchange against known wealth, valid like sale; the stipulated reward binds the beneficiary, because the gift is a transfer of an actual item. Just as "I make you owner of this item" without mention of compensation is a gift, "I make you owner of it for a dinar" is a valid sale; likewise the gift with compensation ("Al-Bayan" 8/133, "Rawdat at-talibin" 4/196-197, "An-najm al-wahhaj" 5/567, "Moughni al-mouhtaj" 3/500, "Nihayat al-mouhtaj" 5/485).
The Hanbalis said: if a known compensation is stipulated in the gift, the gift is valid: explicit text ("Al-Mughni" 5/398-399, "Al-Kafi" 2/468, "Ach-charh al-kabir" 6/246-248, "Kashshaf al-qina'" 4/362, "Manar as-sabil" 2/351). The Shafi'is, against the most apparent opinion, and the Hanbalis according to one opinion, held that the condition of reward is not valid in the gift, because it contradicts the requirement of the contract: the gift is not valid, like marriage concluded by the wording of a gift; taking possession then entails the ruling of an invalid sale ("Al-Bayan" 8/133, "Rawdat at-talibin" 4/196-197, "Al-Mubda'" 4/361).
The jurists differed over the requirement that the compensation be known: the majority, Malikis according to one opinion, Shafi'is according to the doctrine and Hanbalis according to the doctrine, require a known compensation; if the reward is unknown, the gift is void, for it is a condition contradicting the requirement of the gift, like a sale at an unknown price. If the beneficiary takes possession, the ruling of an invalid sale applies, and he returns the gift to the donor with its attached and separate increments, for these are the growth of the donor's ownership; if the gift perished, he returns its value.
The Shafi'is according to one opinion and the Hanbalis according to a narration held that the gift is valid despite ignorance of the reward, because it inherently requires it. Al-Mirdawi reported that Ahmad is satisfied with any counterparty and the gift becomes valid: Shaykh Taqi ad-din mentioned it as the apparent doctrine. Al-Harithi attested that this is the doctrine, transmitted by the narrations of Ibn al-Hakam and Isma'il ibn Sa'id, and Abu al-Khattab favored it, as did the verification of this narration in "Ar-ri'aya as-soughra": if an unknown reward is stipulated, the gift is valid according to the most sahih opinion, even preferable according to "Ar-ri'aya al-koubra". On this narration the donor is satisfied; if he is not satisfied, he has the right of recovery, returning the gift with increase or diminution, and its value on the day of destruction if it perished. It has also been said that he is satisfied with the value of what he gave; and al-Harithi specified that this opinion may mean what usually counts as reward for its like ("Al-Insaf" 7/117, "Al-Bayan" 8/133, "Rawdat at-talibin" 4/196-197, "Al-Mughni" 5/399).
The Hanafis said: if the compensation is unknown, its stipulation becomes void and the act remains a gift from beginning to end ("Al-Bahr ar-ra'iq" 7/295, "Al-Loubab" 1/612, "Ad-durr al-moukhtar" 5/706). The Malikis, according to the relied-upon doctrine, admit the gift with a reward, specified or not; according to another opinion, specification of the compensation is required within the contract itself, by analogy with sale ("Ach-charh al-kabir" with "Hashiyat ad-dasouqi" 5/517, "Mawahib al-jalil" 8/23-24, "At-taj wa-l-iklil" 5/26).
The jurists differed over the nature of the gift with a condition of compensation: is it a sale, a gift, or a gift at the outset becoming a sale at the end? The majority, the Malikis, the Shafi'is according to the sahih opinion of the school, the Hanbalis according to the doctrine, and Zoufar among the Hanafis, held that it is a sale from beginning to end: the rules of sale apply to it, notably the option of cancellation, the guarantee for defect and preemption. For it is a transfer against a known compensation, closer to sale, and the parties used the meaning of sale, transfer against compensation, contracts being assessed by meanings rather than wordings.
The proof: suretyship (kafala) on condition of releasing the principal debtor becomes hawala, and hawala on condition of no release becomes suretyship; the gift of a debt to the debtor counts as remission; the slave's sale of his own person counts as manumission; the gift of usufruct against compensation counts as lease (ijara); and the loan against compensation counts as lease.
The Shafi'is, against the most sahih opinion, and the Hanbalis according to one opinion, held that the ruling is that of the gift in consideration of the wording, without applying the rules specific to sale ("Al-Mabsout" 12/79-80, "Tabyin al-haqa'iq" 5/102, "Ach-charh al-kabir" with "Hashiyat ad-dasouqi" 5/518, "Al-Mughni" 5/399, "Al-Insaf" 7/116).
The Hanafis said: the gift with compensation is a gift at the outset and a sale at the end; for it is a transfer of wealth by a wording whose apparent differs from its meaning. The outset is considered by the wording, the rules of the gift applying before taking possession (the gift of common property is therefore not valid), and the end is considered by the meaning, the rules of sale applying afterwards, like the gift made in mortal illness, whose apparent is an immediate transfer through benevolence and whose meaning is a testamentary disposition. Words are the molds of meanings: one cannot nullify the wording when the meaning must be taken into account, except in case of impossibility of reconciling two contraries; yet there is no contradiction here: the condition of compensation is not stronger than the reality of indemnification, and that reality does not exclude the meaning of the gift.
Hence, each of the two may retract before taking possession, likewise if one of them took without the other: taker and non-taker are equal until reciprocal taking; afterwards the act counts as sale: rescission for defect, preemption and the option of inspection apply. If the item in one's hand becomes due, he returns it with its equivalent if intact, or its value if it perished. Retraction occurs only by mutual consent or by the judge's ruling, a matter of effort dividing the scholars; if the item perishes with the taker after the ruling of restitution, he bears no liability, for he holds it as a deposit without guarantee ("Al-Mabsout" 12/79-80, "Bada'i' as-sana'i'" 6/128, "Al-Ikhtiyar" 3/64, "Tabyin al-haqa'iq" 5/102, "Al-Bahr ar-ra'iq" 7/295, "Durrar al-houkkam" 2/378).