Islamic Fiqh > Endowments (waqf) and property > Conditions for the validity of a waqf > The Legitimacy of the 'Ariya in Fiqh
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Updated on 06 October 2026 at 10:50 PM
The 'ariya is a meritorious and recommended contract, because of the fulfillment of the Muslim's need that it involves. The Law recommended it in His words: "Cooperate with one another in righteousness and piety" (Surah Al-Ma'ida, 2), and the 'ariya is part of righteousness. The majority of jurists interpreted His words: "and refuse al-ma'un (small kindnesses)" (Surah Al-Ma'un, 7) as referring to what neighbors borrow from one another, such as the bucket, the axe and similar objects.
Qatada said: I heard Anas say: a panic occurred in Medina; the Prophet, peace be upon him, borrowed a horse from Abu Talha called al-Mandub and rode it; upon his return he said: we found nothing, though we found it to be like a sea.
Reported by al-Bukhari (2484) and Muslim (2307)
'Abd al-Wahid ibn Ayma said: my father told me: I entered upon 'Aisha, may Allah be pleased with her, and she was wearing a coat of mail of Qatr worth five dirhams. She said: raise your eyes to my servant girl and look at her: she prides herself on wearing it inside the house; in the time of the Messenger of Allah, peace be upon him, I had among them a coat of mail, and no woman of standing in Medina failed to send me word asking to borrow it.
Reported by al-Bukhari (2485)
The Prophet, peace be upon him, said: the 'ariya must be returned, the gift may be taken back, the debt must be settled, and the guarantor is liable for his guarantee (hasan hadith, reported by Ahmad, 22348, Abu Dawud, 3565, at-Tirmidhi, 1265, and Ibn Majah, 2398). From Umayya ibn Safwan ibn Umayya, from his father: the Messenger of Allah, peace be upon him, borrowed coats of mail from him on the day of Hunayn; he said: by force, O Muhammad? He replied: no, a guaranteed loan. Some of them were lost; the Messenger of Allah, peace be upon him, offered to guarantee them to him; he said: today, O Messenger of Allah, my heart is more inclined to Islam (reported by Abu Dawud, 3562 and 3563, an-Nasa'i in al-Kubra, 5779, ad-Daraqutni, 3/39, al-Hakim, 2/54, al-Bayhaqi in al-Kubra, 6/89, ad-Diya in al-Mukhtara, 8/23, and Imam Ahmad in his Musnad, 15337 and 27677, through Yazid ibn Harun, from 'Abd al-'Aziz ibn Rafi', from Umayya ibn Safwan ibn Umayya, from his father).
This chain is weak because of Umayya, of whom al-Hafiz said: acceptable. As for Sharik, that is, Sharik ibn 'Abdallah the judge, he had poor memorization; al-Hafiz said of him: truthful but committing many errors. Qays ibn ar-Rabi' followed his report, as recorded by al-Bayhaqi in suspended form (al-Kubra, 6/89), but he contradicted his chain by inserting the son of Abu Mulayka between 'Abd al-'Aziz and Umayya ibn Safwan. Jarir ibn 'Abdallah also followed it, as in Abu Dawud (3563) and al-Bayhaqi (6/89), but he said: from 'Abd al-'Aziz, from people of the family of Safwan: the Messenger of Allah, peace be upon him, said: O Safwan, do you have weapons?
He replied: as a loan or by force? He said: rather as a loan; end of hadith. Abu al-Ahwas also contradicted it, as in Abu Dawud (3564) and al-Bayhaqi (6/89): he reported it from 'Abd al-'Aziz ibn Rafi', from 'Ata', from people of the family of Safwan: the Prophet, peace be upon him, borrowed, and he mentions its meaning.
Al-Bayhaqi then recorded the report in al-Kubra (6/89) and at-Tabarani in al-Awsat (2/176), through Anas ibn 'Iyad al-Laythi, from Ja'far ibn Muhammad, from his father: Safwan ibn Umayya lent weapons to the Prophet, peace be upon him, and he mentions its meaning. Then al-Bayhaqi said: although some of these reports are mursal, they are strengthened by their corroborations, in addition to the connected report mentioned above; by its corroborations he means the hadith of Jabir ibn 'Abdallah and that of Ibn 'Abbas. As for the hadith of Jabir, al-Hakim reported it (3/51) and, through his chain, al-Bayhaqi in al-Kubra (6/89), via Ibn Ishaq: 'Asim ibn 'Umar ibn Qatada told me, from 'Abd ar-Rahman ibn Jabir, from his father Jabir ibn 'Abdallah: the Messenger of Allah marched toward Hunayn, he mentions the hadith, and in it: the Messenger of Allah, peace be upon him, sent to Safwan ibn Umayya asking him for a hundred coats of mail and their equipment; he said: by force, O Muhammad? He replied: rather a guaranteed loan until we return them to you.
Al-Hakim said: an authentic chain, and adh-Dhahabi concurred; shaykh al-Albani said in as-Sahihah (2/130): it is only hasan because of what is known about Ibn Ishaq, and the settled position is that he is sound when he explicitly states the hadith, as here.
As for the hadith of Ibn 'Abbas, al-Hakim reported it in al-Mustadrak (2/54), from Ishaq ibn 'Abd al-Wahid al-Qurashi, from Khalid ibn 'Abdallah, from Khalid al-Hadha', from 'Ikrima, from Ibn 'Abbas: the Messenger of Allah, peace be upon him, borrowed from Safwan ibn Umayya coats of mail and a spear during the campaign of Hunayn; he said: O Messenger of Allah, a loan to be returned? He said: a loan to be returned. I say: this is a weak chain, whose weakness stems from this Ishaq; Abu 'Ali al-Hafiz, as quoted by Ibn al-Jawzi, said of him: a transmitter whose hadith is abandoned. Al-Khatib said: there is no harm in him; adh-Dhahabi rejected al-Khatib's assessment, saying: rather he is weak.
That is why al-Hafiz wrote in Bulugh al-Maram, after the hadith of Safwan: reported by Abu Dawud, Ahmad and an-Nasa'i, authenticated by al-Hakim with a weak corroboration from Ibn 'Abbas, may Allah be pleased with them both (see Sabil as-Salam, 870). The hadith was mentioned by shaykh al-Albani, may Allah have mercy on him, in as-Silsila as-Sahihah (631).
It has also been said that the 'ariya was obligatory at the beginning of Islam, then abrogated in favor of recommendation, which is the default rule. It may nevertheless become obligatory: such as lending a garment that protects against heat or cold that permits tayammum; likewise the obligation to lend what safeguards a protected life, as with the one who fears that a protected animal will die of thirst and finds a well, while another has a bucket and a rope with which the water can be drawn; and likewise the rope lent to save a drowning person and similar cases. It may be unlawful when it assists disobedience, such as lending a slave girl to a non-related man; and it may be disliked when it assists something disliked (Mawahib al-Jalil, 7/243; Hashiyat as-Sawi 'ala ash-Sharh as-saghir, 8/182; an-Najm al-Wahhaj, 5/140; Mughni al-Muhtaj, 3/267).
Imam Ibn Qudama, may Allah have mercy on him, said: the Muslims agreed on the permissibility of the 'ariya and its merit: since the gift of the objects themselves is valid, the gift of benefits is valid as well; that is why the bequest covering both objects and benefits is valid. This being established, the 'ariya is recommended and not obligatory in the view of most people of knowledge. It has been said to be obligatory on the strength of the verse and of what Abu Hurayra reports from the Prophet, peace be upon him:
There is no owner of camels who does not pay their due. It was said: O Messenger of Allah, what is their due? He said: lending their bucket, lending their stallion and giving their milk on the day they come (to water).
Reported by Muslim (988)
By this Allah Most High blamed the one who withholds the loan, and the Messenger of Allah, peace be upon him, threatened him with what he mentioned in his report. To our opponents we answer with the words of the Prophet, peace be upon him: when you pay the zakat of your wealth, you have fulfilled what is upon you (reported by Ibn al-Mundir); it is reported from the Prophet, peace be upon him: there is no due upon wealth except zakat (weak hadith, reported by Ibn Majah, 1789). In the hadith of the Bedouin who asked the Messenger of Allah, peace be upon him: what has Allah made obligatory upon me as charity? He said: the zakat.
He said: is there anything else upon me? He said: no, unless you volunteer something of your own (al-Bukhari, 46 and 2532). The verse was interpreted as referring to zakat by Ibn 'Umar, al-Hasan al-Basri and Zayd ibn Aslam; 'Ikrima said: whoever combines the three (verses), woe be to him if he neglects the prayer to follow his desires and withholds small kindnesses (al-Mughni, 5/128). Ibn Hubayra, may Allah have mercy on him, said: they agreed that the 'ariya, which is the authorization of benefits without compensation, is permitted, that it is a recommended act of nearness, that it may count among the small kindnesses (al-ma'un), and that the lender has a reward (al-Ifsah, 2/3).
Al-'Imrani, may Allah have mercy on him, said: the Muslims agreed on the permissibility of the 'ariya (al-Bayan, 6/507). The continuation of the discussion deals with the pillars of the 'ariya.
The definitions of hiba (gift) are refined term by term: the phrase "during life" excludes the bequest (wasiyya), which involves deferred transfer of ownership; "without compensation" likewise applies to it, for with compensation it would be a sale; "by what counts as hiba" refers to word or deed, such as sending a present or giving money to a poor man; "by custom" includes hand-to-hand transfer (mu'ata), hiba, sadaqa, hadiyya and 'atiyya, whose meanings are close: all of them are transfers of ownership during one's lifetime and without compensation (Sharh Muntaha al-Iradat, 4/390; Kashshaf al-Qina', 4/359; Matalib Uli an-Nuha, 4/377). All these definitions thus revolve around a single formula: the transfer of ownership of a thing during one's lifetime, without compensation.
Ibn Qudama, may Allah have mercy on him, said: hiba, sadaqa, hadiyya and 'atiyya have closely related meanings, all of them being transfers of ownership during one's lifetime without compensation; the name 'atiyya encompasses them all, as does the name hiba. As for sadaqa and hadiyya, they differ from each other although they fall under the names hiba and 'atiyya: the Prophet, peace be upon him, would eat of the hadiyya but not of the sadaqa, and he said of the meat given as charity on behalf of Barira: it is charity for her and a gift for us. It thus appears that whoever gives something seeking nearness to Allah Most High for a person in need gives a sadaqa, and whoever hands something to a person in order to draw near to him and win his love gives a hadiyya; all of it is recommended and encouraged (al-Mughni, 5/379; ash-Sharh al-kabir, 6/246).
Al-Bahuti, may Allah have mercy on him, said: the types of hiba are sadaqa, hadiyya and nihla, that is, 'atiyya; their meanings are close, all of them being transfers of ownership during one's lifetime without compensation, to which their rulings apply, namely that the rulings of each of these categories apply to what remains. If the giver intends only the reward of the hereafter, it is a sadaqa; if he intends honoring, friendship or reward, it is a hadiyya; if he intends none of that, it is a hiba, an 'atiyya or a nihla. These categories, sadaqa, hadiyya and 'atiyya, are recommended when the Face of Allah Most High is sought, as with a gift to scholars, the poor and the righteous, or what is intended for maintaining kinship ties; they are no longer recommended if boasting, showing off or reputation is intended, and become disliked, according to the words of the Prophet, peace be upon him: whoever makes himself heard, Allah will make him heard, and whoever shows off, Allah will show him off (al-Bukhari, 6134; Muslim, 2987), agreed upon (Kashshaf al-Qina', 4/360).
Imam an-Nawawi, may Allah have mercy on him, said: hiba, hadiyya and voluntary charity are kinds of righteousness with closely related meanings, joined by the transfer of ownership of a thing without compensation. If one purely intends nearness to Allah Most High by giving to a person in need, it is a sadaqa; if the gift is carried to the place of the recipient in honor, veneration and friendship, it is a hadiyya; otherwise, it is a hiba. Every hadiyya and every voluntary charity is a hiba, but not the reverse: hence whoever swears not to make a hiba and gives a sadaqa owes an expiation, while the reverse entails no expiation (Tahrir alfaz at-Tanbih, 240; Rawdat at-Talibin, 4/179-180).
Shaykh al-Islam Ibn Taymiyya, may Allah have mercy on him, was asked about sadaqa and hadiyya: which of the two is superior? He replied: praise be to Allah. Sadaqa is what is given for the Face of Allah as pure worship, without intending any specific person or seeking anything from him, but placed in the places of charity, such as people in need. As for the hadiyya, it is intended to honor a specific person, whether out of love, friendship or the seeking of a need; that is why the Prophet, peace be upon him, accepted gifts and rewarded them, so that no one could claim a favor over him, and so that he would not eat the filth of people with which they purify themselves of their sins, namely the charities; his not eating of the sadaqa was for this reason among others.
This being established, sadaqa is superior, unless the hadiyya carries a meaning that makes it better than sadaqa, such as a gift given to the Messenger of Allah, peace be upon him, in his lifetime out of love for him, or a gift to a relative for maintaining kinship ties, or to a brother in Allah: that may be better than sadaqa (Majmu' al-Fatawa, 31, p. 269). Ibn Abidin, may Allah have mercy on him, said: the difference between sadaqa and hiba is that sadaqa intends the Face of Allah Most High, while hiba intends the face of the rich man, that is, the countenance of the recipient (Hashiyat Ibn Abidin, 8/440).
The Shafi'is said: whoever transfers ownership without compensation to a person in need for the reward of the hereafter gives a sadaqa, that is, both conditions must be combined.
The verification, as as-Subki said drawing on the words of al-Majmu' and other works, is that need is not a criterion. As-Subki said: one should then restrict oneself to one of the two criteria, need or the seeking of the reward of the hereafter; for sadaqa given to a rich person is permissible, and one is rewarded for it if nearness is intended, which excludes reserving sadaqa for the case of transferring ownership to a rich person without seeking the reward of the hereafter. If the thing is carried, by the giver himself or by another, with the intention of reward, to the place of the one to whom it is given, as an act of honoring, it is also a hadiyya; without the intention of reward, it is only a hadiyya. When the transfer of ownership to a person in need for the reward of the hereafter is joined by carrying it to his place, it is both hadiyya and sadaqa; the three types may even combine when one transfers ownership to a person in need for the reward of the hereafter, without compensation, and carries it to him as an act of honoring, with offer and acceptance.
As-Subki, may Allah have mercy on him, said: it appears that honoring is not a condition, and that the condition is the carrying (Mughni al-Muhtaj, 3/486-487; Kanz ar-Raghibin, 3/270-271; an-Najm al-Wahhaj, 5/537; Tuhfat al-Muhtaj, 7/560-561; Nihayat al-Muhtaj, 5/464; ad-Dibaj, 2/537).
Al-Qarafi, may Allah have mercy on him, said: hiba and 'atiyya are one single meaning: the transfer of ownership (al-Furuq, 1/183). Ad-Dardir, may Allah have mercy on him, said: transfer of ownership for the reward of the hereafter is a sadaqa, whether the giver, mu'ti with kasra, also intends something else or not; but if he intends by the 'atiyya only the reward of the hereafter, it is a sadaqa by consensus; if he intends the reward of the hereafter along with the face of the recipient, mu'ta with fatha, it is a sadaqa according to the majority, while according to the minority, what is given to both is a hiba (Hashiyat ad-Dusuqi with ash-Sharh al-kabir, 5/490). Ibn 'Arafa, may Allah have mercy on him, said: hiba without seeking reward is the transfer of ownership of a beneficial thing for the face of the recipient, without compensation; sadaqa is the same for the Face of Allah, in place of the face of the recipient. The majority said: hiba is likewise with the intention of reward from Allah: it is a sadaqa (al-Mukhtasar al-fiqhi, 13/108; at-Taj wa-l-Iklil, 5/5).
Al-Qarafi, may Allah have mercy on him, said: the author of al-Muqaddimat declared: sadaqa and hiba differ only in two rulings: the 'itisar, that is, the physical taking back of the thing, and the permissibility of taking back by sale and hiba. Such taking back is not valid in sadaqa unless it was given to a young child; three versions are reported: prohibition except out of necessity, as when the thing given is a slave woman followed by his mother, or when he is in need and takes it for his need, which is the apparent position of the Mudawwana; the second version: taking back by sale and hiba is permitted without necessity and without the 'itisar; the third version: taking back by sale, hiba and 'itisar, by analogy with hiba. The difference between their realities is that hiba is for maintaining relations and affection, whereas sadaqa is for seeking reward from Allah Most High; once it is established that sadaqa and hiba share everything else, the discussion of the two is one and the same (adh-Dhakhira, 6/223).
The wasiyya (bequest) and the hiba are both contracts of liberality: they agree in being contracts of liberality and differ on several points.
The difference between the hadiyya (present) and the rishwa (bribe), and gifts made to officials, judges and rulers: rishwa is pronounced with kasra and damma on the ra; such is the case in al-Binaya, whereas al-Qamus vocalizes it with a third vowel (fatha), giving the meaning of ju'l (remuneration); irtasha means he took it, istarsha he sought it, rashahu he honored someone and treated him kindly, and tarashahu he flattered him and gave him the bribe (al-Qamus al-Muhit, 1662; Taj al-'Arus, 38 and 135). In al-Misbah: rishwa, with kasra, is what a person gives to a judge or another so that he may rule in his favor or incline him to what he wants; its plural is rishan, like sidra (a jujube tree) and sidaran; the plural with damma (rushan) is also attested; rashawtuhu rashwan follows the pattern of qatala: I gave him a bribe and he took it (irtasha); its root is the rush' of the chick when it stretches its head toward its mother to be fed (al-Misbah al-Munir, 1/228).
The difference between hadiyya and rishwa: rishwa is any wealth given to buy from a person of influence support for what is not permitted; hadiyya is everything given out of love or affection that one establishes or perpetuates (Matali' at-Tamam, 225). Ibn al-Qayyim, may Allah have mercy on him, said: the difference between hadiyya and rishwa, although they resemble each other in form, lies in the intention: the briber intends by the bribe to obtain the annulment of a right or the establishment of falsehood; he is then the accursed briber on the tongue of the Messenger of Allah; if he bribes to repel injustice from himself, the curse applies only to the one who accepts the bribe. As for the giver of a gift, he intends by it to attract affection, recognition and kindness; if he intends a counterpart, he is one who pays for it; if he intends profit, he is a hoarder (ar-Ruh, p. 240).
An-Nawawi, may Allah have mercy on him, said: rishwa is forbidden to the judge and to other holders of authority absolutely, for it is given so that he may rule by the truth or refrain from injustice, both of which are obligatory upon him; he is therefore not permitted to take a counterpart for it. As for the one who gives the bribe: if he thereby obtains falsehood, it is unlawful for him, and that is the accursed briber; if he thereby obtains a right and repels an injustice, it is not unlawful, and the situation varies in its permissibility and obligation according to the circumstances (Tahdhib al-Asma', 3/115). An-Nawawi also says in Tahrir alfaz at-Tanbih: the judge Abu al-Qasim Ibn Kajj declared: the difference between the two is that rishwa is a gift on condition that he rule for him without right or refrain from ruling against him with right, whereas hadiyya is an unconditional gift.
Al-Ghazali said in al-Ihya: if wealth is spent for a deferred aim, it is an act of nearness and a sadaqa; if for the immediate: if for a monetary aim in return, it is a hiba with a conditioned or expected reward; if for a forbidden act or a specific obligation, it is a bribe; if for something permitted, it is a hire or a ju'ala; if for drawing close to the recipient: if for his own person, it is a hadiyya; if for using his influence toward aims: if his influence lies in knowledge, lineage or righteousness, it is a hadiyya; if it lies in judgment (the office of judge) or in the exercise of a governor's post, it is a bribe (Tahrir alfaz at-Tanbih, p. 333).
Ibn Nujaym, may Allah have mercy on him, said: al-Aqta' mentioned that the difference between hadiyya and rishwa is that rishwa is what is given on condition of being helped, whereas hadiyya involves no condition. In al-Khaniya, the bribe has four categories. One of them is unlawful on both sides, in two cases: first, when the office of judge is obtained by bribery: unlawful for the judge and for the one who takes; in Sulh al-Mi'raj, leniency (mu'anasa) shown to executors in the management of orphans' wealth is permitted, and fatwa is given on that basis. Second, when the bribe is given out of fear for oneself or one's property: unlawful for the one who takes, but not for the one who gives; likewise if the other covets his property and he bribes him with part of his money.
Another category: when the bribe is given to have one's affair settled with the ruler: giving is permitted and the one who takes may not take it; if one wants it to be permitted to the taker, the taker is hired from day to night for what one wishes to give him: this hire is valid, and the hirer may then employ him for this task or for another; this is when the bribe is given first so that his affair may be settled; if he asks him to settle his affair without mentioning the bribe and gives it after the affair is settled, they differed: some said he may not take it, others said he may, and the correct view is the latter, for he intends to reward the kindness, which is permitted. I have not seen any category in which taking is permitted without giving. As for what is lawful on both sides, it is the gift of friendship and affection, as they have explicitly stated; it does not fall under bribery.
In al-Quniya, shortly before at-Tahri: oppressors prevent people from cutting wood from the pastures unless they give them something: the giving and the taking are unlawful, for it is a bribe. It also states: what the two parties in dealings give as a bribe must be returned and does not pass into their ownership; this shows that the taker does not become its owner, as is stated explicitly in the chapter on hiba in al-Quniya. It is said in as-Siyar al-kabir: the bribe does not become property; and: if someone releases him from a debt so that he may settle his affair with the ruler, he is not released, and it is a bribe.
If a man refuses to lie with his wife and says: release me from the mahr and I will lie with you, and she releases him: it is said he is released, for the release aims at the affection that invites intimacy, and the Prophet, peace be upon him, said: exchange gifts, you will love one another; unlike the release in the first case, for it is intended to settle a matter, and settling one's matter is owed by him as a duty of integrity (diyana), and spending money on what is owed by him constitutes the very definition of bribery.
It also states: one who gives the judge or another unlawful money (suht) to have his matter settled, and it is settled, then regrets it and wishes to return what he gave: it appears that repentance from bribery consists in returning the wealth to its owner, even if the need has been met. In Sulh al-Mi'raj, leniency shown to executors in the wealth of orphans is permitted, and fatwa is given on it; then he says: among the bribery that is unlawful for the one who takes but not for the one who gives is what the tax collector (sha'ir) takes. In Wasaya al-Khaniya they said: spending money to extract a right one holds over another is a rishwa; not included in it is what the woman takes for her reconciliation with her husband. It is stated in al-Khulasa and al-Bazzaziyya, at the end of the chapter on settlement (sulh): a dispute arose between the two spouses, and she said: I will not reconcile with him until he gives me such and such, for she holds a right over him such as the mahr and maintenance.
In the chapter on mahr of al-Bazzaziyya: the brother refused to give his sister in marriage unless the suitor paid him such and such; the suitor paid it to him; he may take it whether he was solvent or insolvent, for it is a bribe; by analogy, a gift is likewise taken back in the preceding case if it is known from his state that he would not marry her off except with a gift, otherwise not. Another case: if someone maintained the wife of another in the hope of marrying her and she refused to marry him: if he stipulated restitution, he takes back his property whether he marries her or not; otherwise, if he spent in the hope of marrying her, the scholars differ over restitution and its absence (al-Bahr ar-Ra'iq, 6/285-286; see Sharh Fath al-Qadir, 7/272, and Ibn Abidin, 5/362).
Al-Mawardi and Abu Ya'la, may Allah have mercy on them both, said: the difference between rishwa and hadiyya is that rishwa is what is taken while seeking something, whereas hadiyya is what is given freely (al-Ahkam as-Sultaniyya of al-Mawardi, p. 141; al-Ahkam as-Sultaniyya of Abu Ya'la, p. 134). Shaykh al-Islam Ibn Taymiyya, may Allah have mercy on him, said: the scholars declared that whoever gives a gift to a holder of authority so that he does for him what is not permitted commits an unlawful act, both for the giver and for the recipient; this falls under the bribery of which the Prophet, peace be upon him, said:
Allah has cursed the one who gives the bribe and the one who accepts it.
Sahih hadith, reported by Ahmad (6778), Abu Dawud (3580), at-Tirmidhi (1337), and Ibn Majah (2313) with the wording: the Messenger of Allah, peace be upon him, cursed the one who gives the bribe and the one who accepts it
The rishwa is called al-bartil, and al-bartil in language designates the oblong stone. As for the one who gives a present so that the injustice he suffers may cease or so that he may obtain the right due to him, that gift is unlawful for the one who takes it, and it is permitted for the one who gives it to give it: the Prophet, peace be upon him, would indeed say: I give one of them a gift and he goes out carrying it under his arm, and it will be a fire for him; it was said: O Messenger of Allah, why do you give them, then? He said: they refuse anything else, and Allah forbids me stinginess (sahih hadith, reported by Ahmad, 11017 and 11139, Ibn Hibban in his Sahih, 3414, and al-Hakim in al-Mustadrak, 134) (Majmu' al-Fatawa, 31/286).
Imam al-Mawardi, may Allah have mercy on him, said: chapter on the ruling of the gift in general: this being so, exchanging gifts with anyone other than rulers is recommended in giving and permitted in accepting, according to the words of the Prophet, peace be upon him:
Exchange gifts, you will love one another.
Hasan hadith, mentioned previously
The ruling on gifts made to governors: governors fall into three categories: governors of the sultanate, governors of delegated administration ('amala), and governors of judgments. The first category, the governors of the sultanate, includes the supreme imam and whoever holds his position: all people are under his authority and count among his subjects. Gifts made to him come either from the people of the abode of Islam or from the people of the abode of war.
Gifts from the people of the abode of war to the governors of the sultanate: if the people of war give him gifts, he may accept them, just as he may treat their property as lawful spoils; the cause of the gift is then examined: if it is given on account of his authority over the Muslims, the gift belongs to them rather than to him, and their public treasury has the greater right to it; if they give him a gift for a reason unrelated to his authority, such as pre-existing affection, he may take ownership of it; if they give him a gift on account of a need that has arisen: if he can meet that need only through his authority, the public treasury has more right to it than he does; if he can meet it without his authority, he has more right to it than the treasury. The ruling on their gifts thus divides into these three cases.
Gifts from the people of the abode of Islam to the governors of the sultanate divide into three categories. The first: one who gives him a gift while seeking his help, either for a right to be upheld, or to repel an injustice he suffers, or for a falsehood he wishes him to support: this is the forbidden bribe. Anas ibn Malik reports that the Prophet, peace be upon him, said: cursed are the one who gives the bribe, the one who accepts it and the go-between: the giver is the briber, the taker is the bribed, and the go-between is the mediator between the two; moreover, if the gift is meant for a right he must uphold, upholding rights is among the obligations inherent in his office, and one who is bound to uphold a right may not be pressed to hasten it, just as one may not press anyone regarding his prayer and fasting; if the gift is meant for a falsehood he is to support, the pressing is a greater prohibition and a graver sin.
As for the one who gives the bribe: if he does so to uphold a right or repel an injustice, giving it is not unlawful for him, any more than ransoming a captive with it would be; if he does so for a falsehood in which he seeks the governor's participation, giving it is unlawful for him just as taking it is unlawful for the recipient, and the bribe must be returned to the one who gave it, nor may it be placed in the public treasury.
The second category: one who gives him a gift when he used to give him gifts before he took office, out of kinship or affection: this is a gift, not a bribe, and it has three types. The first: a gift of the same kind as before the office, with no need having arisen: he may accept it, suspicion being absent and custom established in maintaining relations. The second type: the gift combined with a need that has arisen: he must refrain from accepting it during the need, and he may accept it afterward. It is reported that Zayd ibn Thabit used to give gifts of milk to 'Umar ibn al-Khattab, who accepted them; when Zayd borrowed money from the public treasury and gave a gift of milk, 'Umar returned it.
Zayd said: why did you return it? He replied: because you borrowed money from the public treasury. Zayd said: I have no need of wealth that cuts the bond between you and me. He therefore returned the money and again gave the milk as a gift, which 'Umar accepted from him.
The third type: increasing the gift beyond the customary amount without any need: it is examined; if the increase is of the same kind as the gift, acceptance is permitted, for it falls within habit; if it is of another kind, he is prevented from accepting it, for it departs from the customary. The third category: one who gives him a gift when he did not give him gifts before he took office; it has three types. The first: one who seeks from him the office of governor over a post: this is a bribe excluded from the ruling of gifts; it is unlawful for him to take it, whether the seeker deserves the office or not; he must return it; and it is unlawful for the one who gives it if he does not deserve the office; if he does deserve it: if he can dispense with the office, giving it is unlawful for him; if he is in need of it, giving it is not unlawful.
The second type: one who thanks him for a fine deed he has done: this falls outside bribery and is attached to gifts, for the bribe precedes and the gift follows; he must return it and may not accept it, for he becomes a gainer through his complaisance and remunerated for his position, whether his fine deed was obligatory or supererogatory; and the giving of it is not unlawful for the giver.
Al-Bahuti states in Matalib Uli an-Nuha: the preferred position is that the guarding of deposited property may be undertaken for compensation, even with payment, and a hired worker may be engaged to guard the property, contrary to the position of al-Muntaha; he says: the wadi'a is property handed over to one who guards it without compensation. In al-Insaf, citing al-Fa'iq, it is said: wadi'a designates the entrusting of another's property for safekeeping; he also cites ar-Ri'aya as-Sughra, which defines it as a contract of liberality consisting in the safekeeping of another's property; I have seen this position in no other author, nor anything conveying its meaning.
Al-i'da' (depositing) is the delegation given by the owner of the property for its safekeeping, when the safekeeping is a liberality on the part of the guardian; al-isti'da' (entrusting) is the act by which a person entrusts property for its safekeeping, that is, the safekeeping of another's property, likewise as a liberality, without any disposition over the guarded property, since there is no permission to dispose of it other than by keeping it (Matalib Uli an-Nuha, 4/147-148). The disagreement among the Hanbalis is this: is taking compensation for guarding the deposit permitted or not?
The difference between the wadi'a and the amana: the wadi'a is a specific notion and the amana a general one: every deposit is a trust, but not every trust is a deposit. The wadi'a is deliberate safekeeping (istihfaz by intention), whereas the amana is the thing present with the person appointed as trustee, whether it was made a trust by the contract of safekeeping, like the wadi'a, or is a trust within a contract, like the hired item or the borrowed item, or becomes a trust in someone's hands without any contract or intention: as when the wind throws a neighbor's property into someone's house; no contract having occurred, that property is not a deposit with the owner of the house, but only a trust. Amana in language is the verbal noun meaning the fact that a person is trustworthy. In the jurists' terminology: the amana is the thing present with the one appointed as trustee, namely the property (al-Jawhara an-Nira, 4/149; al-Bahr ar-Ra'iq, 7/274; Durrar al-Hukkam, Sharh Majallat al-Ahkam, 2/194; Anis al-Fuqaha', p. 248; Hashiyat as-Sawi 'ala ash-Sharh as-saghir, 8/141; Hashiyat I'anat at-Talibin, 3/499; Kashshaf al-Qina', 4/203).
Ibn Nujaym the Hanafi said: the difference between the wadi'a and the amana is twofold. First: the wadi'a is specific as we have described, while the amana is also specific to the case where something comes into someone's hand without his intention, as when the wind carries off a man's garment and casts it into another's keeping. Its ruling differs in some cases: in the wadi'a, the custodian is released from liability when things return to safety, whereas in the amana he is not released from liability after a dispute. Second: the amana is a term for what is not guaranteed, so that it encompasses all cases without liability, such as the 'ariya, the hired item and the slave recommended by bequest in the hands of the one to whom he is bequeathed; the wadi'a is what is placed in safekeeping by offer and acceptance: the two notions thus differ (al-Bahr ar-Ra'iq, 7/274; Ibn Abidin, 8/329).