Islamic Fiqh > Endowments (waqf) and property > Hiba: the gift > Compensation due without any stipulation
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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.
Does the absolute gift, free of any mention of compensation, once possession has been taken, require a reward, allowing the donor to take back his gift as long as he has not been indemnified; or does it require none, recovery being excluded without stipulation; or does it require reward if the gift goes from the weaker to the stronger, and not from the stronger to the weaker? The jurists divide this into three cases.
First case: the gift from the superior to the inferior, such as the sultan to a subject, the rich man to the poor, the master to his pupil: it requires no reward according to the majority (Malikis, Shafi'is, Hanbalis), because the aim is nearness to Allah, not compensation. The Shafi'is and the Hanbalis specify: if he gave to a superior without a condition of reward, and the beneficiary then gives the donor a gift, this constitutes a new gift that binds through taking possession; if either gift comes out defective or becomes due, no compensatory restitution is owed.
Second case: the gift from like to like, from the sultan to his equal, from the rich man to his equal, from the poor man to his equal: it requires neither reward nor recovery according to the Malikis, the Shafi'is according to the doctrine and the Hanbalis, because the aim is connection, affection and the strengthening of friendship. According to a Shafi'i opinion, whoever aimed at the reward is entitled to it. The Malikis said: if the gift is absolute and the parties then disagree, the donor claiming he gave for a reward and the beneficiary denying it, the donor's word is credited, whether custom confirms it or contradicts it; but if custom establishes that the beneficiary, being the donor's equal, does not ask for reward, the beneficiary's word is credited. This applies after taking possession; before it, the donor is credited absolutely, even against custom.
The donor's truthfulness in claiming a reward is admitted for any gift other than minted currency (dinars and dirhams): for the latter, no reward, because people only give in view of compensation what has varying uses, which is not the case with minted currency: giving it in view of compensation contradicts usage. The donor is therefore credited only in case of stipulation at the time of the gift or an established custom, the compensation being then merchandise or food; custom equals stipulation, unlike unsmelted jewelry, minting being an easy work that does not alter the substance, unlike casting which is a valued work ("Ach-charh al-kabir" with "Hashiyat ad-dasouqi" 5/517, "Charh moukhtasar khalil" 7/117-118, "Mawahib al-jalil" 8/23-24, "At-taj wa-l-iklil" 5/26-27).
Third case: the gift from the inferior to the superior, from the subject to the sultan, from the poor man to the rich man, from the pupil to the master: the jurists differed over the requirement of reward. The Malikis and the Shafi'is, against the most apparent opinion (which is the Hanafi opinion), require it and make compensation obligatory, according to Omar's statement cited above and this account: a man sought counsel from Fadala ibn Oubayd, who told him:
I gave a falcon to a man and he did not reward me. He said: if he compensates you, otherwise return and take back your falcon.Reported by Ibn Abi Chayba in his "Moussannaf" (4/420, no. 21701); the full version there mentions two men disputing over a falcon, the ruling being: let his falcon be returned to him or let him be compensated, for only women and the worst of people take back their gifts
For usage requires that whoever gives to his superior aims only at compensation: this usage counts as a stipulation, custom being a principle to which one returns in the absence of anything else. It is established that the weak man gives to his rich neighbor seeking his kindness, and that the sultan's servant gives to him seeking his favors: denying recognition has no meaning; either he compensates or the donor takes back ("Al-ishraf ala noukt massail al-khilaf" 3/263, no. 1106, "Al-Mouhit al-bourhani" 6/200, "Al-Jawhara an-nira" 4/91, "Al-Loubab" 1/614, "Ibn Abidine" 8/497).
The scholars then differed over what is due in compensation. The Malikis said: the beneficiary has the choice between returning the gift or giving its equivalent, as long as the item has not changed by increase or diminution; if it has changed, the donor is entitled to its value on the day of taking possession ("Al-Istidhkar" 7/234, "Tadhhib al-moudawwana" 2/386-387, "Adh-dhakhira" 6/277). Al-qadi Abd al-Wahhab said: what is due as reward is the value of the gift; ash-Shafi'i held four opinions: this one, the requirement of the donor's satisfaction, the customary remuneration for such a gift, or the minimum bearing the name of reward.
The proof of the invalidity of satisfaction is that the donor may refuse a multiple of the gift's value, which cannot be required as it harms the beneficiary, unless he abandons the gift; and since the compensation has not been taken, the satisfaction of the taker is not established, unlike other exchanges where the compensation is either mentioned (like the price) or left unstated (its value then being due, as with the delegated dowry). The proof of the invalidity of custom is that there is no custom in this matter, it depending on the compensator's own consent; when all this falls away, only consideration of the value remains; and Allah knows best ("Al-ishraf" 3/363-364, no. 1107).
The Shafi'is said: if the reward is due, it is the value of the given item according to the most sahih opinion: when the contract requires a compensation without naming it, the value is due, with no increase claimable nor diminution sufficient. According to another opinion, the counterparty is what the donor accepts, the Prophet having kept rewarding the Bedouin until he was satisfied; according to another, what counts as customary reward for such a gift, satisfaction being boundless; according to yet another, what one can afford. According to the most sahih opinion, in case of disagreement over the amount, the value on the day of taking possession prevails; according to one opinion, that of the day the compensation was handed over.
If the beneficiary does not compensate, the donor takes back the gift if it exists; the beneficiary is never compelled to compensate. If he added a separate increment, the donor takes back the gift without it; if it is accessory and attached, the recovery covers the whole according to the sahih opinion; according to another opinion, the beneficiary keeps the gift and pays its value without increase. If the gift perished: two transmitted opinions, the more sahih being restitution of its value; the other likens the case to the father in the gift to his child; if the gift is diminished, recovery covers what remains, compensation for the diminution being subject to two opinions, or releasing the item against the full value.
If the beneficiary says "you gave me without reward" and the donor "with reward", the beneficiary's word is credited, for both agree on the ownership and the principle is the absence of compensation. The Shafi'is according to the most apparent opinion and the Hanbalis said that the gift from the inferior to the superior likewise requires no reward, even with intention, for the wording indicates the absence of compensation and the context cannot equal it; it is an offering of benevolence, like the gift from like to like and the bequest; the contrary has been transmitted from Ibn Abbas and Ibn Omar ("Al-Bayan" 8/131-133, "Al-Hawi al-kabir" 7/550-551, "Rawdat at-talibin" 4/196, "An-najm al-wahhaj" 5/564-565, "Al-Mughni" 5/398, "Kashshaf al-qina'" 4/362, "Ar-rawd al-mourba'" 2/180).
If the beneficiary compensates, it is a new gift, not a compensation: if either gift is defective, no restitution; if it has become due, its owner takes it without compensation. The Shafi'is said: if someone gives to another on condition that he settle a need or serve him, and the latter does not do so, restitution is due in kind if the item exists, in value if it perished.
The Hanafis said: if one gives something to a stranger and the beneficiary takes possession, the donor may take it back as long as he has not been indemnified, as a matter of ruling, though it is not recommended by piety, according to the hadith of Abu Hourayra cited above (the giver of a gift has more right to it as long as he has not been compensated for it): the right of recovery here refers to the period after delivery, the gift not being perfect before it; attributing the gift to the donor only means it was his, as one says "we ate such-and-such baker's bread" while having bought it from him.
Allah says: "When you are greeted with a greeting, greet with one better than it or return it" (Surah An-Nisa, 86): the greeting denotes peace, praise or a gift, and the verse "or return it" confirms that actual items are meant, for only they can be returned. Omar, Othman, Ali, Abdallah ibn Omar, Abu ad-Darda and Fadala ibn Oubayd said the same, with no contrary reported from anyone else: which amounts to consensus. For the aim of the gift to a stranger is the compensation, according to established usage: a man gives to one above him for his protection, to one below him for his service, to his equal in thanks for his kindness; Allah says: "Is the reward of benevolence anything but benevolence?" (Surah Ar-Rahman, 60); and the Prophet said:
Whoever does you a good turn, reward him; if you find nothing with which to reward him, pray for him until you consider that you have rewarded him.Sahih hadith: reported by Abu Dawoud (1672) and Ibn Hibban in his Sahih (3408)
It thus appears that the right of recovery is not the contract's requirement, but the consequence of the possible failure of its purpose: benevolence counts as stipulation. One cannot say that compensation is only sought in trade: the aim of the gift is also to manifest generosity and win affection, which is achieved; yet the failure of part of the aim suffices for annulment. Hence the maxim: whoever takes back his gift is not generous; the benevolent soul seeks the compensation, and affection is obtained through it, according to the Prophet's saying: "Exchange gifts, you will love one another", reciprocity requiring action from both parties. The failure of the purpose of a rescindable contract prevents its binding force, like a sale where the buyer discovers a defect; and that is why recovery requires a judgment or a consent, by analogy with restitution for defect after taking possession.
However, taking back a gift is disapproved, for it belongs to baseness. Ibn Abbas reported that the Prophet said:
The one who takes back his gift is like the dog that returns to its vomit; the doing of evil is not of us.Reported by al-Bukhari (2478, 6574) and Mouslim (1622)
The Prophet made this image because of the baseness of the act and the unworthiness of the doer. The rest of the Hanafi statements on the impediments to recovery will follow, Allah willing ("Al-Mabsout" 12/53-54, "Bada'i' as-sana'i'" 6/132, "Al-Ikhtiyar" 3/62-63, "Al-Jawhara an-nira" 4/74, 79, "Nasb ar-raya" 4/216, "Al-Bahr ar-ra'iq" 7/294, "Ibn Abidine" 8/481).
The jurists differed over the gift between spouses without a condition of reward or of its absence: does it require a reward? Firstly, the husband's gift to his wife: the jurists of the four schools agree, with a detail to follow, that if the husband gives his wife something she acquires, he cannot take it back, because its purpose is the bond of kinship.
Secondly, the wife's gift to her husband: the majority of jurists, Hanafis, Malikis, Shafi'is and Hanbalis according to one narration, said that the wife who gives her husband something cannot take it back, whether it is her dowry or otherwise. A second narration from Ahmad grants her recovery absolutely. A third narration gives details: if she gave him her dowry after he asked for it, it is returned to her, whether she consented or not, for she only gives out of fear of his wrath or the harm of his taking another wife; if he did not ask and she gave out of benevolence, the gift is lawful.
The Hanafis said: what one spouse gives the other cannot be taken back, for this gift realizes the conjugal affection: its aim is the bond, which is achieved; recovery, however, amounts to breaking the bond, breeding estrangement and repulsion. The marital relation is treated like kinship, the proof being mutual inheritance in all circumstances, whether one of the spouses is a Muslim or a disbeliever. The purpose is assessed at the time of the gift: if he gives to a stranger and then marries her, he may take back; if she gives to him and then marries him, she may take back; if the gift took place during the marriage and then divorce, no recovery for either, for the contract did not entail recovery ("Al-Hidaya" 3/228, "Al-Ikhtiyar" 3/63, "Al-Jawhara an-nira" 4/81, "Tabyin al-haqa'iq" 5/98, "Al-'Inaya" 12/301, "Al-Loubab" 1/610, "Ibn Abidine" 8/461).
Imam Abu Ja'far at-Tahawi reported the case of a woman who gave her husband a gift and then revoked it, the dispute being brought to Chourayh: he asked the husband for two witnesses of the gift given without coercion or contempt, failing which the wife's oath would stand, she swearing she gave unwillingly; which shows that the Sounna, once established before him, would have led to restitution, Chourayh admitting the donor's recovery except towards a close relative marriage with whom is forbidden, likening the wife to such a relative. He also reported from Ibrahim: "When the woman gives to her husband or the man to his wife, the gift is lawful and neither may take it back"; and according to the chain of Abu Hanifa going back to Ibrahim: husband and wife are like a close relative marriage with whom is forbidden: neither takes back. At-Tahawi concluded that following the athars and imitating the imams takes precedence over reasoning, which would have led to admitting recovery towards anyone who is not a forbidden relative; this whole chapter is the opinion of Abu Hanifa, Abu Youssouf and Mouhammad ("Charh ma'ani al-athar" 4/83-84).
The Malikis said: the gift of one spouse to the other is effective and valid even without raising the hand, out of necessity; if the donor claims a reward, he is not credited, custom establishing the absence of compensation between spouses, the aim being affection and bond; except for an explicit stipulation, an indication or an established custom, in which case he is credited and receives what he claims. This applies to what is not minted gold or silver currency: for that, he is credited only in case of stipulation or custom. "Al-Moudawwana" specifies: no judgment for compensation between spouses, nor between father and son, unless seeking compensation is apparent, as with the wife who grants her wealthy husband a pregnant slave girl to strengthen the bond: in that case the compensation is due, otherwise each takes back his gift ("Ach-charh al-kabir" with "Hashiyat ad-dasouqi" 5/519, "Charh moukhtasar khalil" 7/118, "Mawahib al-jalil" 8/24, "Manh al-jalil" 8/217).
The Hanbalis: al-Marwazi said: I asked Ahmad about the woman's gift to her husband and the man's gift to his wife: he replied that all this is identical, no recovery. Ishaq said: whenever the woman gives her husband a gift in honor, she may take it back, and he may not. Ibn Qoudama said: what the husband gives his wife is not to be taken back; as for the wife's gift to her husband, Ahmad has two narrations: the first, no recovery, the opinion of Omar ibn Abd al-Aziz, an-Nakha'i, Rabi'a, Malik, ath-Thawri, ash-Shafi'i, Abu Thawr and the partisans of reasoning, as well as of Ata' and Qatada; the second, she may take it back: al-Athram heard Ahmad distinguish women from men, citing the hadith "only women and the worst of people take back their gifts" (Ibn Abi Chayba, "Moussannaf" 4/420, no. 21701) and Omar's statement:
Women give to their husbands out of desire and out of fear; any woman who has given something to her husband and wishes to take it back has more right to it.Reported by Ibn Abi Chayba in his "Moussannaf" (4/331, no. 21731), transmitted by al-Athram; also the opinion of Chourayh and ach-Cha'bi, and reported by az-Zouhri from the judges
A third narration, transmitted by Abu Talib, gives details: if she gave him her dowry after his request, it is returned to her, whether she consented or not; for she only gives out of fear of his wrath or of his remarriage. The apparent meaning of this narration: any indication of a request, of anger or of fear opens the way to recovery, Allah having permitted the taking only with her contentment:
"...but if they give up willingly to you anything of it, then take it in satisfaction and ease."
Surah An-Nisa, 4
The apparent meaning of al-Khiraqi's text is the first narration, chosen by Abu Bakr al-Khiraqi by virtue of the verses of Al-Baqara 237 and An-Nisa 4, and of the generality of the hadiths. The Hanbalis thus count three narrations: no recovery, as with a stranger; recovery absolutely, according to Omar's hadith; or the detail described ("Al-Mughni" 5/397-398, "Ach-charh al-kabir" 6/285, "Charh az-zarkachi" 2/210, "Kashshaf al-qina'" 4/382).
Al-Bahouti said: if the husband asks his wife for the gift of her dowry, she gives it, and he then harms her, she takes it back; likewise if he says to her "you are divorced if you do not release me" and she releases him from her dowry and he then harms her by divorce or otherwise: she takes back what she gave or released, the situation proving her lack of contentment; what is not the dowry follows the same ruling, as he stated in "Charh al-mountaha"; Omar's statement cited above confirms it. Al-Harithi said: the famous doctrine from the imam is the absence of recovery between spouses, except for the woman giving her dowry following a request; without a request and out of pure benevolence, no recovery, by explicit text ("Kashshaf al-qina'" 4/382).
Al-Bukhari devoted a chapter in his Sahih to the man's gift to his wife and the woman's gift to her husband: Ibrahim said it is lawful; Omar ibn Abd al-Aziz said neither takes back; it cites the permission the Prophet sought from his wives to be nursed in Aicha's house, and the hadith likening recovery to the dog's vomit. Az-Zouhri said regarding one who says to his wife "give me part of your dowry or all of it", then divorces her shortly after and she returns it: it is returned to her if he deceived her; if she gave willingly, without trickery, it is lawful, according to the verse of An-Nisa 4 ("Sahih al-Boukhari" 2/914).
Ibn Batal said: the majority of the scholars forbid recovery between spouses, the opinion of Omar ibn Abd al-Aziz, an-Nakha'i, Ata', Rabi'a, Malik, al-Layth, ath-Thawri, the Kufans, ash-Shafi'i and Abu Thawr; another opinion grants recovery to the woman alone, transmitted from Chourayh, ach-Cha'bi and az-Zouhri, who said he never saw a judge allow a man's recovery of what he gave his wife. Abd ar-Razzaq transmitted from ath-Thawri Omar ibn al-Khattab's letter: women give out of desire and fear; any woman who has given to her husband may take it back if she wishes. The first opinion is the soundest according to the verse of An-Nisa 4; Ali ibn Abi Talib said the sick man should ask his wife for three dirhams to buy honey and treat himself with rainwater, a pleasant remedy and blessed water, which presupposes the absence of recovery; likewise the gifts of the Prophet's wives of their days and nights ("Charh sahih al-Boukhari" 7/106-107).
The scholars differed over the necessity of acquisition in the gift between spouses: Ibn Abi Layla and al-Hasan al-Basri admit the gift without taking possession; an-Nakha'i and Qatada deny any acquisition between spouses; Ibn Sirin, Chourayh, Masrouq and ach-Cha'bi require the taking, the opinion of ath-Thawri, the Kufans and ash-Shafi'i, and the narration of Ashhab from Malik: what is given between spouses while it remains with the donor is a defective acquisition. Malik has another opinion, transmitted by Ibn al-Qassim in "Al-outbiyya": the gift by the man to his wife of a servant remaining in their house, or of a dwelling they inhabit, is lawful for the woman; Isa transmitted from Ibn al-Qassim a distinction: if the husband is the donor, the gift is not complete, for it is he who must house his wife; if the woman is the donor, the gift is lawful, for he dwells in what she acquired for him.
Abu Bakr al-Jassas reported the jurists' disagreement over the woman gifting her dowry to her husband. Abu Hanifa, Abu Youssouf, Mouhammad, Zoufar, al-Hasan ibn Ziyad and ash-Shafi'i said that a woman of sound mind may dispose of her wealth by gift or otherwise, whether virgin or previously married. Malik said the virgin does not dispose of her wealth nor of what she gave up of her dowry, that waiver belonging to her father, to the exclusion of other guardians; he admitted the sale by a married woman of her house or her servant if the act is proper, excessive favor being limited to a third of her wealth; beyond that, neither little nor much. According to Malik, the widow disposes of her wealth like a man of his. Al-Awza'i said the woman's gift is only valid after a year of marriage in her husband's house. Al-Layth said the manumission and the sadaqa of a married woman are only valid for a modest item, such as for a tie of kinship.
Abu Bakr al-Jassas concluded that the verse settles the invalidity of these opinions: "but if they give up willingly to you anything of it, then take it in satisfaction and ease" distinguishes neither virgin and previously married, nor residence of a year. Malik admitted the father's gift whereas Allah commands paying the whole dowry, except for the wife's voluntary waiver: the verse therefore annuls the father's gift, which is in no way tied to the father's satisfaction. The verse of Al-Baqara 229 forbids taking back anything given, unless there is fear of transgressing Allah's bounds, the redemption (fida') then being blameless: the wife's contentment is stipulated without distinction. The hadiths of Zaynab, wife of Abdallah ibn Mas'oud ("give sadaqa, even from your ornaments") and of Ibn Abbas (the Prophet urging the women on the day of the feast to give sadaqa) confirm the absence of distinction; and such a restriction would be an interdiction (hajr) inconceivable for a person of this description; and Allah knows best ("Ahkam al-quran" of al-Jassas 2/352-353).
Imam al-Qourtoubi said: the scholars agree that a woman in charge of her affairs who gives her dowry to her husband, the gift stands without recovery, except Chourayh who allowed recovery relying on the verse of An-Nisa 4, holding that a woman who demands something from her husband is not content. Ibn al-Arabi said this opinion is invalid: she consented and he consummated; consumption is a metaphor for lawful substitution, and this is clear ("Al-jami' li-ahkam al-quran" 5/25). Ibn al-Qayyim said: the sale of the dowry before taking possession is lawful, Ahmad having explicitly admitted the woman's gift of her dowry before it was taken ("Hashiyat ibn al-qayyim ala sounan abi dawoud" 9/280, see "Al-Mughni" 7/177, "Al-Kafi" 3/94). The detail of the Hanbali doctrine has been given by Ibn Qoudama in the previous chapter.
The jurists agree: one who gives to his close relatives marriage with whom is forbidden, other than his child, cannot take back if the beneficiary has taken possession. Imam Mouhammad ibn Nasr al-Marwazi said: they agree that the gift to a forbidden relative cannot be taken back ("Ikhtilaf al-ulama" p. 277). Ibn Qoudama said: agreement has been reached on the absence of recovery of the gift to a forbidden relative other than the child ("Al-Mughni" 5/397).
If the gift is intended for a close relative marriage with whom is forbidden, there is no taking it back.Weak hadith: reported by al-Hakim in "Al-moustadrak" (2324), ad-Darqoutni (3/44) and al-Bayhaqi in "As-sounan al-koubra" (11806)
And Malik reported in the Mouwatta Omar ibn al-Khattab's statement already cited: whoever gives for the ties of kinship or as sadaqa does not take back (sahih statement attributed: "Mouwatta" 1440, al-Bayhaqi 11808). The purpose of the gift to the forbidden relative is the bond of kinship, which is achieved; recovery would sever it: no recovery, even towards a protected non-Muslim (dhimmi) or a beneficiary under guarantee, who must be maintained and is eligible for sadaqa, according to the verse: "Allah does not forbid you from being benevolent towards those who have not fought you because of religion and have not driven you out of your homes" (Surah Al-Moumtahana, 8), the acceptance of protection having sufficed for them to give up fighting ("Al-Mabsout" 12/53-54, "Bada'i' as-sana'i'" 6/132, "Al-Ikhtiyar" 3/62-63, "Al-Istidhkar" 7/235-237, "Al-Hawi al-kabir" 7/545-546, "Al-Mughni" 5/398).
The jurists differed over the father's taking back of the gift made to his son after possession has been taken. The majority of jurists, the Malikis (with a detail to follow), the Shafi'is and the Hanbalis according to the doctrine, admit the recovery, according to what Tawous reported from Ibn Omar and Ibn Abbas:
It is not lawful for a man to give a present or a gift and then take it back, except the father regarding what he gives to his child; and the example of one who gives and then takes back is that of the dog which eats, then, once full, vomits and returns to its vomit.Sahih hadith: reported by Abu Dawoud (3539), at-Tirmidhi (1298), an-Nasa'i (3960), Ibn Hibban in his Sahih (5123) and Ahmad in his Mousnad (2119)
This hadith specifies the generality of the hadith likening recovery to the dog's vomit (al-Boukhari 2478, 6574; Mouslim 1622). The Prophet also said to Bachiir, regarding his gift to an-Nouman among his children: "Then return it" (or "give it back" in one version), the command to take back implying its lawfulness, otherwise he would have forbidden it. The father was singled out for the absence of suspicion: his natural preference for his child establishes that he only takes back out of need or interest.
The Shafi'is said: recovery without excuse is disapproved; if an excuse exists, such as the child's disobedience or his spending on sin after warning, and he persists, recovery is no longer disapproved. The Prophet said: "Your children are part of your earnings; eat from the good things of your earnings" (Sa'id ibn Mansour, "As-sounan" 2288): the child was singled out and attached to his parent's earnings. Al-Mawardi proposed an analogy freed from any defect: the father gave his earnings for an uncompensated earning, hence the lawful recovery, as with his slave; what is due to the child from his father's hand (management in his minority, maintenance in his majority) is assimilated to a gift, and the recovery of the taken gift is assimilated to the untaken gift remaining in his hand; paternal tenderness excludes any suspicion, authorizes managing marriage and contracts over the child's wealth, and therefore differing from others over recovery; their answer to the argument of spiritual reward is that the donor compensated in wealth has received the counterparty, and Allah's reward is reserved to the father who does not take back ("Al-Hawi al-kabir" 7/546).
The Shafi'is, according to the famous doctrine, said: the father takes back the gift to his child in the broad sense covering present and sadaqa, according to the soundest opinion; immediacy is not required, nor the intervention of a judge, even if the child is poor and a minor, by virtue of the generality of the hadith; recovery without excuse is disapproved, the excuse (disobedience, unlawful spending after warning) legitimizing it ("Al-Hawi al-kabir" 7/546, "Al-Bayan" 8/124-125, "Rawdat at-talibin" 4/191-192, "Moughni al-mouhtaj" 3/495, "Nihayat al-mouhtaj" 5/476-477). If the donor dies and the heir alleges the gift was made in mortal illness while the beneficiary alleges good health, the latter is credited by oath; if two proofs confront each other, the heir's proof prevails, adding knowledge ("Al-Hawi al-kabir" 7/546, "Rawdat at-talibin" 4/191-192).
The Hanbalis said: no donor may take back his gift once it binds, be it sadaqa, present, favor or wedding gifts, whether he was compensated or not, for the absolute gift requires no reward; with the exception of the father, the closest, regarding what he gives his child: recovery is permitted to him by the cited hadith, with no difference between the father seeking equity among his children or not; if a disbeliever gives his disbelieving child something and the child then embraces Islam, the father may take back, contrary to Shaykh Taqi ad-din. Even if the existence of the gift prompts others' designs, such as marrying the beneficiary child, or lending to him, selling to him or renting from him because of the gift, nothing prevents the paternal recovery ("Al-Mughni" 5/389-390, "Al-Kafi" 2/469, "Ach-charh al-kabir" 6/279, "Kashshaf al-qina'" 4/377, "Ar-rawd al-mourba'" 2/187, "Manar as-sabil" 2/357-358).
The Malikis said: recovery belongs to the father alone, regarding all that he gives his child, absolutely: child young or grown, boy or girl, rich or poor, gift taken or not, according to the famous doctrine, by the cited hadith; unless the benefit of the gift appears for the child, as when people trust him for trade or marry him: recovery is then no longer possible; without apparent benefit, recovery is permitted. Imam Malik distinguished the parent's sadaqa on his child from his gift to him. Ibn Abd al-Barr reported from Malik: whoever gives sadaqa to his son, whether the child took it or it is in the father's custody with witnesses, cannot take any of it back, sadaqa never being recoverable. And Malik said: whoever grants his child a favor other than sadaqa may take it back, as long as the child has not incurred a debt with people who trust him because of that favor from his father; past that stage, no more recovery; likewise if the father gave to his son or daughter who married thanks to that wealth: the father can no longer take anything back under those conditions.
Abu Omar (Ibn Abd al-Barr) said: the i'tisar (the recovery) among the Medinans is the taking back of the gift; no disagreement among the scholars over the absence of recovery of sadaqa; every gift seeking Allah's face follows the sadaqa's regime; as for gifts without mention of Allah or intention of sadaqa, the scholars have differed greatly. Malik's doctrine, in his Mouwatta, reserves the abandonment of paternal recovery to the case of the daughter's marriage or the son's incurring debt, as described ("Al-Istidhkar" 7/235-236, "Al-ishraf" 3/261-262, no. 1104, "Ach-charh al-kabir" with "Hashiyat ad-dasouqi" 5/511, "Mawahib al-jalil" 8/20).
The Hanafis, the Shafi'is according to one opinion and the Hanbalis according to a narration said: the father who gives to his son cannot take back, by virtue of the generality of the hadith likening recovery to the dog's vomit, the hadith of Samura (the gift to a forbidden relative cannot be taken back, a weak narration) and Omar's statement in the Mouwatta (whoever gives for the ties of kinship or as sadaqa does not take back, a sahih attributed statement). The Hanafis said: it is an explicit text; the gift to the relative is a sadaqa seeking Allah's reward, not compensation: no recovery in the sadaqa any more than in the gift to the relative; moreover recovery leads to disobedience, forbidden towards the relative. As-Sarakhsi said: our proof is Omar's hadith; the gift to the forbidden relative is completed in ownership and contract, without recovery, like the son giving to his father or the brother to his brother: the aim, the bond of kinship, is achieved, and recovery is its severance; in the father's case, recovery would drive the child to disobedience, whereas the parent must invite him to piety; one cannot say the father's aim is the child's service: paternal tenderness would prevent recovery once the aim is obtained; in the child's giving to his parent, the aim is to honor him, and if he takes back it is because he did not attain it; the notion of earnings is not decisive either: he does not take back the gift to his mukatab or his freedman either, who are also of his earnings; for the child is his earnings, not his property, unlike his slave.
As for the hadith, it has been said that "except the father" means "nor the father", the word "except" being used in the sense of "nor", as in "except those who are unjust among them" and "it is not for a believer to kill a believer except by mistake" (Surah An-Nisa, 92); or else "except the father" means that he alone may take in case of need, as established ("Al-Mabsout" 12/54-55, "Bada'i' as-sana'i'" 6/132, "Al-Ikhtiyar" 3/62-63, "Nasb ar-raya" 4/216, "Al-'Inaya" 12/296, 300, "Ibn Abidine" 8/481). Ibn Surayj, among the Shafi'is, said: the father only takes back the gift made to his child if he specified that he aimed at increasing his kindness or ending his disobedience without obtaining it; if he made an absolute gift, no recovery ("Al-Bayan" 8/124, "Rawdat at-talibin" 4/192).
The jurists who admit paternal recovery differed over the mother. The Malikis said: the mother may take back what she gave her minor child, provided the father was alive at the time of the gift, even if insane, whether father and child are rich or poor, or one of them. If she gave to her minor child while the father lived, then the child became an orphan after the gift, she may take back, even after his majority; for the gift was not a sadaqa, the father existing at the time of the gift. If the father was already dead at the time of the gift, the mother cannot take back: the child is an orphan and nothing is taken back from an orphan, this gift being assimilated to a sadaqa upon him. If she gave to her grown child, she may take back, whether the father lives or not; except a gift aimed at the hereafter, which becomes an unrecoverable sadaqa, whether the donor is the father or another; likewise no recovery if both parents aimed at the bond of kinship (a needy minor child or a grown child estranged from the father), nor if the gift was established by witnesses, according to the famous doctrine ("Ach-charh al-kabir" with "Hashiyat ad-dasouqi" 5/511, "Charh moukhtasar khalil" 7/113, 115, "Mawahib al-jalil" 8/20, "At-taj wa-l-iklil" 5/20-21).
The Shafi'is according to the doctrine and the Hanbalis according to one opinion liken the mother to the father in recovery: she falls within the hadith "except the father regarding what he gives his child"; she also falls within "be equitable towards your children" (at-Tahawi, "Charh mouchkil al-athar" 13/72, no. 5073; al-Bayhaqi, "As-sounan al-koubra" 11780), which requires the possibility of equity, recovery being a way of equity, sometimes necessary if one cannot give the other the like of the first gift; she finally falls within the whole scope of Bachiir's hadith ("return it", "give it back") and, having been made equal to the father in the prohibition of favoring some children, must be made equal to him in the possibility of taking back, to free herself from sin.
The Hanbalis according to the explicit texts and the Shafi'is according to one opinion deny maternal recovery. Ibn Qoudama said: Ahmad's explicit text is the absence of recovery for the mother; al-Athram reported that Ahmad, asked about the woman's recovery of what she gave her child, said: she is not like the man in this, for the father may take from his child's wealth, and the mother may not. He cited Aicha's hadith: "The best of what a man eats is the fruit of his labor, and his child is part of his labor" (sahih hadith: Abu Dawoud 3528, at-Tirmidhi, an-Nasa'i 4449, Ibn Maja 2137, Ibn Hibban 2459, Ahmad 24087), meaning the child is like the man himself; Ahmad's companions take it as proof: the Prophet specified the parent, and the difference is that the father holds guardianship and inherits all the wealth, the mother not. Malik said: the mother takes back the gift made to her child as long as the father lived; if he was dead, no recovery: the gift to the orphan binds, like supererogatory sadaqa, whose recovery Malik's doctrine forbids ("Al-Mughni" 5/390, "Al-Bayan" 8/124-125, "Rawdat at-talibin" 4/191-192, "Nihayat al-mouhtaj" 5/476-477).
The jurists differed over the recovery of the gift made by the grandfather or the grandmother to their grandchild. Some Malikis, like Ibn Abd al-Hakam, and the Shafi'is according to the famous doctrine liken the grandfather and the grandmother, likewise all ascendants of both lines, even of different religions, to the father in recovery, as in their maintenance, their manumission and the dropping of retribution concerning them. The Malikis according to the famous doctrine, the Shafi'is against the famous doctrine and the Hanbalis say that only the father recovers (the mother remaining subject to the previous disagreement): the ancestors recover nothing, the attribution of the hadith to the parent being restrictive ("Ach-charh al-kabir" with "Hashiyat ad-dasouqi" 5/511, "Kashshaf al-qina'" 4/377, "Al-Bayan" 8/124, "Nihayat al-mouhtaj" 5/477).
I report here precious words of Ibn al-Qayyim: the twenty-fifth example is the rejection of the explicit and perfect Sounna forbidding the recovery of the gift from anyone except the parent, in favor of a corrupt ambiguous opinion requiring the contrary of the Sounna: recovery would be permitted to anyone, except towards the parent, the forbidden relative, the spouse, or if the donor was compensated. In doing so they distinguished the stranger from the relative, the gift to the relative being a bond not to be severed and that to the stranger a pure liberality. Yet this openly contradicts the Sounna and is invalid: the beneficiary, having taken possession, sees the item enter his ownership; the donor's recovery is an expropriation without consent, invalid religiously and rationally. As for the parent, his child is part of him and his wealth belongs in a sense to his father: the connection is so strong that it distinguishes the parent from the stranger.
It will be objected: we only contradicted it by an explicit sahih text, the hadith of Salim from his father: "whoever gives a gift has more right to it as long as he has not been compensated for it"; al-Bayhaqi reported that al-Hakim judged it sahih, unless it be carried to his shaykh Ahmad ibn Ishaq al-Hashimi; al-Hakim reported it from Amr ibn Dinar from Abu Hourayra ("the giver of a gift has more right to it as long as he has not been compensated"); ad-Darqoutni reports from Hammad ibn Salama, from Qatada, from al-Hasan, from Samura ("the gift to a forbidden relative cannot be taken back"); and the "Ghilaniyat" transmit from Ata', from Ibn Abbas: "whoever gives a gift and then takes it back has more right to it as long as he has not been compensated, but he is like the dog that returns to its vomit".
The answer: these hadiths are not established; and even if established, contradicting it would not be permitted: they would have to be reconciled with the hadith forbidding recovery, the donor without recovery being the one who gives out of pure liberality, and the one who recovers being the one who gave to be indemnified, all the Sounnas of the Messenger of Allah being applied without one nullifying another. As for Ibn Omar's hadith, ad-Darqoutni said it is not established as mousnad, the sahih version going from Ibn Omar back to Omar. Al-Bayhaqi reported the chain of Ali ibn Sahl ibn al-Moughira passing through Hanzala ibn Abi Soufyan up to Salim ibn Abdallah, which is not preserved thus: it is transmitted from Ibrahim ibn Isma'il ibn Moujmi', and Ibrahim is weak.
Ad-Darqoutni said Ali ibn Sahl erred in it. Abu Nou'aym said his hadith is not worth two fils; Abu Hatim ar-Razi that it carries no argument; Yahya ibn Ma'in that Ibrahim ibn Isma'il the Makki is nothing. Al-Bayhaqi said: the preserved version is that of Amr ibn Dinar from Salim from his father: "whoever gives a gift without being compensated has more right to it, except towards a close relative marriage with whom is forbidden", and al-Boukhari said: this is the soundest. The hadith of Oubaydallah ibn Moussa through Hanzala is seen only as an error; that of Hammad ibn Salama passes through Abdallah ibn Ja'far ar-reqqi, judged weak; that of Ibn Abbas passes through Mouhammad ibn Abdallah al-azram, of no probative value: al-Fallas and an-Nasa'i declared it an abandoned hadith, and Malik, Yahya ibn Sa'id and Ibn Ma'in declared him a liar; ad-Darqoutni said: abandoned hadith. If these hadiths are not established, they are not relied upon; if they are established, they are applied to whoever gave in view of compensation; and success comes from Allah ("I'lam al-mouwaqqi'in" 2/333-335).
The jurists who allow recovery, whether for the paternal gift or absolutely when the donor has not been compensated, mention impediments to recovery. Firstly, among the Hanafis:
Al-Kasani detailed in "Bada'i' as-sana'i'" (6/129-131) the three conditions of compensation deferred to the contract: the counterparty must be expressed by a formula of reciprocity, failing which two independent gifts succeed one another, each recoverable; the compensation must not be the very thing given by that contract (compensating the donor with the gifted item does not count as compensation; if part of the gift compensates the rest while the item is in its contractual state, it is not a compensation, the donor's aim being to give the whole; if the item has changed, the part may become the rest's equivalent; for two items given by two distinct contracts, Abu Hanifa and Mouhammad admit equivalence, Abu Youssouf rejects it, the right of recovery remaining over the unaltered item); and the compensation must remain secure for the donor: if it is taken back from him, the compensation falls away and the donor recovers the gift if the item is intact; if the gift perished or was consumed by the beneficiary, no guarantee, as before the compensation; if the item improved, no guarantee either. If part of the compensation is taken back, the remainder equals the whole gift, the opinion of the three companions; Zoufar said recovery over the gift applies to the extent of the compensation taken back, reciprocity operating on both sides.
The Malikis, who admit the paternal recovery as seen, exclude it when the gift to the child occurs together with one of the following impediments: