Islamic Fiqh > Endowments (waqf) and property > Hiba: the gift > The obstacles to return among the Shafi'is
Contents
Updated on 06 October 2026 at 10:50 PM
This third part of the chapter on hiba (the gift) completes the survey of the obstacles to return (ruju') among the Shafi'is and the Hanbalis, then addresses the valid formulas of return, the ruling on charity (sadaqa) given and then regretted, and the rules of fairness between children, wives and other relatives. It then covers the gift of the discerning boy, the gift with counter-value, and the donor's capacity of disposition. The positions of the four schools are reported with their Quranic and prophetic evidences, their takhrij numbers and classical references.
Or the illness of the one given the option subsides: when the illness of the father, the mother or the child ceases, acting on what al-Lakhmi retained becomes possible, whereas with marriage and indebtedness, once they cease, there is agreement that return is no longer possible. The difference is that illness is not something people deal in: it comes from Allah, and when it ceases, return comes back; marriage and debt are acts people undertook, and once gone, return does not come back. Al-Lakhmi reported no disagreement on this, and the difference is transmitted in al-Tawdih from Ibn al-Qasim (al-Istidhkar 7/235-236; al-Ishraf ila nukt masail al-khilaf 3/261-262, no. 1104; al-Sharh al-kabir with al-Dasuqi's hashiya 5/512-514; Sharh Mukhtasar Khalil 7/114-115; Mawahib al-Jalil 8/22; al-Taj wa-l-iklil 5/22-24; Tathbir al-Mukhtasar 5/21-24; al-Fawakih al-Dawani 2/158; al-Sawi's hashiya on al-Sharh al-saghir 9/222-230; Manh al-Jalil 8/207-208).
Third: the obstacles to return in the gift according to the Shafi'is. The Shafi'is mention several obstacles preventing the father, likewise the other original donors, from returning in a gift made to his child:
The opposite view in the madhhab is the Imam's: if we authenticate the lessor's sale, he returns; otherwise not.
Warning: excluded from return, even with control remaining, is what a preventer of return accompanies; this occurs in several situations:
If he gave something to his son and the son gave it to his own son, the first has no return in the soundest view, for ownership is not derived from him; if the son sold it to his father or it reached him by death, the father never returns, for there is no return for the latter (the son), so the father has more right; if the son gave it to his father's brother (his paternal uncle), the father has no return, for the donor does not own the return; if the son gave it to his grandfather and the grandfather to his own grandson, the return belongs to the grandfather only.
If the child's ownership of the gifted thing ceased then returned to him by inheritance or otherwise, by mutual rescission (iqala) or restitution for defect, he has no return in the soundest view, ownership not being derived from the origin; the second view, countering the soundest, allows the return, considering his prior ownership and his finding his own property with one over whose gift he holds a right of return.
If he gave grape juice that became wine then vinegar, return is possible in the madhhab: the ownership existing in the vinegar is caused by the ownership of the juice. If the child sowed the grain or the egg hatched, the origin is not returned, as Ibn al-Muqri held decisively, contrary to al-Bulqini who held so as firmly: the gifted thing has become consumed. If it increased, the origin returns with the connected increase, like fatness or plowing land for cultivation, for it follows the origin.
Two situations are excepted from this. First: if he gave a slave girl or a beast while pregnant then returned while she carries: return is only in the mother, not the fetus, on the basis that the fetus is known (the soundest view); return in the mother is possible even before delivery, in one of two ways. Second: what he gave as a date palm that produced dates not yet ripened: no return in it in the madhhab, there being neither exchange nor consent, like the dower.
The separated increase, like the newborn of the beast or earnings, does not bring back the origin: it remains with the recipient, having occurred in his ownership, unlike the pregnancy accompanying the gift, which returns even after separation, being part of the gifted thing; if the pregnancy accompanied the gift and he returned only in the mother, his return includes the fetus too. If the child dyed the cloth, trimmed it, ground the wheat or spun the yarn, he shares with his father, after the return, in the cloth in what exceeds its value; without increase, no share.
If the origin returns in land the child planted or built on, the donor, after his return, chooses between tearing it out with compensation for the diminution, acquiring it at its value, or leaving it in place for the child against rent, like the loaned object (ariya); if the gifted thing diminished, he returns in it without compensation. If the child was interdicted for debt, there is no return in the soundest view, like the pledge: interdiction attached the creditors' rights to it.
It is also said: he returns, for his right is prior: it is established from the moment of the gift. If he was interdicted for prodigality, the return stands categorically, no right of another having attached to it. If witnesses testified for the remaining heirs that the father returned without specifying in what, their testimony is not heard and the thing is not removed from the child, as it may not have been among what was returned (al-Muhadhdhab 1/447; al-Bayan 8/126-129; Rawdat al-talibin 4/192-193; al-Najm al-wahhaj 5/558-561; Kanz al-raghibin 3/277-278; Asna al-matalib 2/484; al-Iqna 2/368; Mughni al-muhtaj 3/496-497; Tuhfat al-muhtaj 7/586-591; Nihayat al-muhtaj 5/478-482; al-Dibaj 2/545-546).
Fourth: the obstacles to return in the gift according to the Hanbalis. The Hanbalis mention conditions for the father's return in a gift to his child:
Every disposition that does not prevent the son from disposing of the person does not prevent return: bequest, gift before possession (in what needs it), consummation, marriage, lease, the manumission contract (kitaba), manumission on death (tadbir) if we hold it does not prevent sale, sharecropping (muzara'a), making it a mudaraba or part of a partnership: none of this prevents return, likewise manumission conditioned on a quality. Upon return, binding dispositions (lease, marriage, kitaba) remain as they are, the son being unable to annul them; revocable ones (bequest, gift before possession) lapse.
A sale carrying an option for the son, whether by stipulation, defect in the price or otherwise, prevents return: return implies rescinding the son's ownership of the counter-value, which is not established for him. If the son gifted it to his own son, the father cannot return: it would nullify the ownership of other than his son; if the son returned his own gift, two readings: the father may then return (he rescinded his gift and ownership reverted to its first cause), or not (he returned after another's ownership settled upon him, like the grandson gifting to his father).
Third condition: that no interest of another attaches to it, such as people, seeing him give, coming to deal with him, lending to him, or seeking marriage with him (or marrying him off). Ahmad has two narrations. The first: he has no return; Ahmad said in Abu al-Harith's narration of the man giving money to his son: the return is his unless he thereby misled people (into dealing with him): then he has no right of return: this is Malik's madhhab, a right of another having attached, which return would nullify, per the hadith: no harm shall be inflicted nor reciprocated; return involves harm; it is also a circumvention to harm the Muslims, which is not allowed. The second, the sahih of the madhhab: he may return, by the generality of the report, the spouse's or creditor's right not having attached to the object itself.
Fourth: that it not increase by a connected increase, like fatness, growth, or learning a craft. If it increases, Ahmad has two narrations: one: the increase does not prevent return, being an increase within the gifted thing itself, like increase before possession or the separated increase; the other: it prevents return, the increase belonging to the recipient as the growth of his ownership, not transferred from the father; return being prevented there, it is prevented in the origin too, to avoid the poor partnership and the harm of dissolution; returning is also recovering wealth by rescinding a contract without defect in its counter-value, like recovering the dower by dissolving the marriage or half of it by divorce, or the seller's return for the buyer's insolvency. No difference between increase of the object (fatness, height) and abstract increase (learning a craft, writing, the Quran, knowledge, Islam, the discharge of a debt).
If the increase or the instruction adds nothing to its value, or diminishes it, return is not prevented: that is no increase in value. The separated increase (the beast's offspring, the tree's fruit, the slave's earnings) does not prevent return; Ibn Qudama said: without any disagreement we know of; the increase belongs to the child, having occurred in his ownership, and as it is not followed in rescissions, it is not followed here; the qadi mentions another view making it the father's, which is far-fetched. If the object was trimmed or shortened without gain in value, no prevention; if its value increased, it is a connected increase: one builds on the two narrations about fatness; it may prevent return in every case, resulting from the son's act like the object resulting from his act, unlike fatness which may belong to the father as growth of the object and so follows it.
If he gave her pregnant and she gave birth in the son's hand, that is a connected increase in the child; it may be a separated increase if we hold the fetus has no ruling. If he gave her pregnant then returned while she was pregnant, it is allowed if the value did not increase; if it increased, it is a separated increase. If he gave her not pregnant and she became pregnant, it is a separated increase: return is in the mother, not the fetus; if we hold the fetus has no ruling and the value increased by it, it is a connected increase; if not, return is allowed. If he gave a date palm that carried, it is before the ripening stage a connected increase, after it a separated one.
If part of the object perished or lost value, return is not prevented, nor is the son liable for what perished, for it perishes in his ownership, whether by his act or otherwise.
Our statement, except by their mutual consent, means: even if the father stealthily took back the gifted cloth and consumed it, he guarantees its value to the recipient, for return is valid only by their mutual consent or the judge's ruling, neither of which occurred (al-Hidaya 3/229; al-Ikhtiyar 3/64; Mukhtasar al-wiqaya 2/106; al-Jawhara al-nira 4/84-85; al-Lubab 1/611; Ibn Abidin 8/484). The majority of jurists, the Malikis, Shafi'is and Hanbalis, hold that the judge's ruling is not required for return in the gift: it is an option to rescind a contract, needing no judicial ruling, like rescission under a stipulated option (al-Sharh al-kabir 5/511; al-Bayan 8/131; Rawdat al-talibin 4/195; al-Mughni 5/393; Kashshaf al-qina 4/381; Matalib uli al-nuha 4/409).
The Hanafis said: the formulas of return are: I return in my gift, I restore it to my ownership, I annul it, I revoke it. If he did not utter this but sold, pledged, freed the gifted slave or ordered his tadbir, that is not a return; likewise dyeing the cloth or mixing the food with his own food. If he says, when the new month comes I shall have returned it, it is not valid: rescissions do not accept suspension when they carry a transfer of ownership. If they agree on return where it is invalid, like the gift to uterine kin and the like, it is allowed; then when the gift is rescinded by the judge or by consent, it reverts to the donor's ownership, possession not being considered in the transfer of ownership, as in sale (al-Jawhara al-nira 4/84-85; Ibn Abidin 8/461; al-Hindiyya 4/386).
The Malikis said: return is valid with any wording indicating taking back the gift given to one's child, whether by the word of enforcement (i'tisar) or otherwise; the technical term is not required on the apparent, the common people mostly not knowing it, and the hadith contains nothing indicating its requirement. The Prophet (peace and blessings of Allah be upon him) said:
It is not lawful for a man to give a gift or make a donation and then return to it, except the father regarding what he gives his child.
Sahih hadith narrated by Abu Dawud (3539), al-Tirmidhi (1298), al-Nasa'i (3960), Ibn Hibban in his Sahih (5123), and Imam Ahmad in his Musnad (2119)
(al-Sharh al-kabir 5/511; al-Sawi's hashiya 9/225).
The Shafi'is said: return is achieved by: I return in what I gave, I take it back, I restore it to my ownership, I revoke the gift, or the like, such as: I annul it, I rescind it, all of these explicit; it is also achieved by allusion with intention, like: I took it, I seized it, and whatever achieves the seller's return after the buyer's insolvency achieves return here. The gifted thing, after return without its being recovered, remains a deposit in the child's hand.
Return is valid only immediately: when the new month comes I shall have returned is invalid, for rescissions do not accept suspension, like contracts. Return is not achieved by selling what he gifted his child, nor by its waqf, gift, manumission, nor by consummating the marriage with her in the soundest view: the child's ownership is complete and his disposition effective; the second view: return is achieved by each of these as it is achieved by the seller during the option period.
Branches. The first: if the child sold the gifted object and the father claims he returned before the sale, the claim is accepted only with evidence. The second: whoever equips his daughter with furnishings owns them to her only by offer and acceptance if she is an adult; his oath that he did not transfer ownership is accepted; likewise if he buys her house furnishings, she does not own them by that, unlike the young girl for whom he buys building materials, which she owns by that; then if he pays back the price intending return, he returns, otherwise not. The third: if an object is in the father's hand, acknowledged as a deposit and his child's property, and he later claims the acknowledgment was a gift of his from which he returned, and the child denies it, the majority side with the child: no return for the father; the relied-upon view: the father is the one made to swear.
The fourth: whoever gives in charity a cloth believing he deposited or lent it: the recipient owns it in consideration of the giver's intention; if the recipient returns it to him, the giver may not take it, his ownership having ceased (al-Hawi al-kabir 7/549; al-Bayan 8/130-131; Rawdat al-talibin 4/195; al-Najm al-wahhaj 5/562-563; Kanz al-raghibin 3/278; Asna al-matalib 2/484; Mughni al-muhtaj 3/498; Tuhfat al-muhtaj 7/592; Nihayat al-muhtaj 5/482-483; al-Dibaj 2/547).
The Hanbalis said: the father's wording of return in what he gifted his son is: I return in my gift, I restore it, I give it back, and the like, such as: I went back into it, I returned it to my ownership, and all that indicates return; the most complete is: I return in what I gave you of such and such, whether the child knew of his father's return or not.
Return is not established by the father's disposing, by sale or gift, of what he gifted his son after the son's possession, even intending return: the recipient's ownership is established with certainty and is removed only by certainty: this is the explicit position. If he takes what he gave his son: intending return, it is a return, his own word on his intention being accepted; if it is unknown whether he intended return, as after the father's death, with no indication of return, it is not ruled a return, for taking admits return and other than it, and a certain ruling is not removed by a doubtful matter.
If indications of return accompany it, there are two views: the first: it is a return, Ibn Aqil's choice: in the contract we suffice with the indication of the situation, more so in rescission; the word of return is a return only because it indicates it, likewise everything indicating it. The second:
The second view: it is not a return, ownership being certain for the recipient and removed only by the explicit. Ibn Qudama (may Allah have mercy on him) adds that this can be built on the contract itself: whoever required offer and acceptance in the contract accepts here only wording requiring its removal; whoever sufficed in the contract with the hand-to-hand transfer indicating consent, here more so. Intention alone, without act or word, does not effect return in any view: it establishes ownership over property owned by another, which mere intention does not effect, like the other contracts; and conditioned return (when the new month comes I return in the gift) is invalid: rescinding the contract is not suspended by a condition, like the contract itself (al-Mughni 5/393; Kashshaf al-qina 4/381; Sharh muntaha al-iradat 4/413; Matalib uli al-nuha 4/409; Munar al-sabil 2/357).
The overwhelming majority of scholars, some even reporting consensus, hold that charity given for the sake of Allah, to other than one's child, admits no return: the reward from Allah in it is complete. Imam Ibn Rushd said: they agreed that the gift intended as charity, that is for the sake of Allah, admits no return from anyone (Bidayat al-mujtahid 2/249). Imam Ibn Abd al-Barr: as for charity, there is no return in it for the father or anyone else, in every case: charity is intended only for the sake of Allah the Exalted, and in what is intended for His face neither enforcement nor return is allowed (al-Istidhkar 7/229). Ibn Qudama: the giver of charity cannot return in it in the view of them all, for Umar said in his hadith: whoever gives a gift intending it as charity does not return in it, alongside the generality of our hadiths: their evidence and ours coincide, and therefore their statement and ours coincide (al-Mughni 5/398).
The scholars argued the impossibility of return in charity with what Muslim narrated from Ibn Abbas, that the Prophet (peace and blessings of Allah be upon him) said:
The likeness of the one who returns to his charity is the likeness of the dog that vomits, then returns to its vomit and eats it.
Narrated by Muslim (1622)
Imam al-Nawawi (may Allah have mercy on him): this is apparent in the prohibition of return in gift and charity after their possession (Sharh sahih Muslim 11/64). And the Prophet said to Umar:
Do not return to your charity.
Narrated by al-Bukhari (1418) and Muslim (1621)
The jurists differ when the parent gives charity to his son: may he return in what he gave him?
The Hanafis, the Malikis, the Shafi'is in one view and the Hanbalis in one view hold there is no difference between the father and the stranger: return in charity is not valid, the purpose of charity being nearness to Allah; he cannot return once it becomes binding, like manumission; the gift, for its part, aims at kinship ties and improving the child's condition.
The Shafi'is, on the soundest expressly reported view, and the Hanbalis, on the sahih of the madhhab, hold that the father may return in charity as he may return in the gift: charity needs what the gift needs, offer, acceptance and permission to take possession, so its ruling equals the gift's in return, unlike manumission; and by the generality of the Prophet's saying: It is not lawful for a man to give a gift or make a donation and then return to it, except the father regarding what he gives his child.
Ibn Taymiyya (may Allah have mercy on him) reports from Imam Ahmad: whoever gives charity to his child may return in it; there are two narrations, charity being a kind of gift or an independent kind; upon that is built the case of one who swears not to give then gives charity: whether expiation is due has two views (al-Fatawa al-kubra 4/517; for the hadith, see the references given above).
The famous position among the Malikis is that he may: if the giver stipulates that he will return in his charity to his son, or in what he gave him for maintaining kinship ties, the return is his, acting on his stipulation, like the one who stipulates within the confinement (habas) its sale, as the one who confines may stipulate. Likewise one who gives charity or a gift to a stranger stipulating he will return in it whenever he wishes. The view countering the famous one: the stipulation is not acted upon (al-Sharh al-kabir 5/513; Sharh Mukhtasar Khalil 7/114; al-Bahja fi sharh al-tuhfa 2/406; Tathbir al-Mukhtasar 5/21-22; al-Taj wa-l-iklil 5/22; see al-Jawhara al-nira 4/91; al-Lubab 1/614; Ibn Abidin's hashiya 8/497; al-Bayan 8/126; Rawdat al-talibin 4/192; Mughni al-muhtaj 3/495; al-Mughni 5/390; al-Insaf 7/149; Kashshaf al-qina 4/377).
Return in charity given to a rich man: the Hanafis said return in charity after possession is not valid: the reward from Allah in it is complete. They then differ over return in charity given to a rich man: some said there is no return in charity when the recipient is poor; as for a poor man giving charity to a rich one, see the next section.
If a poor man gives charity to a rich one, the giver holds the right of return by analogy: charity to a rich man is a gift, as a gift to a poor man is charity. Others equalize poor and rich: no return in charity, whether given to a poor man or a rich one, for he expressed it with the word charity and would have used the word gift had he so intended; and reward may be sought through charity given to the rich: consider one who possesses the nisab yet whose dependents are not sufficient: charity on him carries reward, which is why he does not return: this is istihsan, and the first view (analogy) is the primary one (al-Muhit al-burhani 6/200; Tabyin al-haqaiq 5/105; al-Jawhara al-nira 4/91; al-Lubab 614).
The jurists agreed it is disliked for one who gave charity then finds it for sale to buy it, based on what the two shaykhs (al-Bukhari and Muslim) narrated from Salim: Abdallah ibn Umar reported that Umar ibn al-Khattab gave a horse as charity in the path of Allah; he found it for sale and wished to buy it; he came to the Prophet (peace and blessings of Allah be upon him) and consulted him, and he said:
Do not return to your charity.
Narrated by al-Bukhari (1418) and Muslim (1621)
On that basis Ibn Umar never failed to buy what he had given away unless he made it charity. Nafi' reported from Ibn Umar that Umar ibn al-Khattab dedicated a horse in the path of Allah and found it for sale; he wished to buy it and asked the Messenger of Allah, who said: Do not buy it and do not return to your charity (Muslim 1621).
Umar dedicated a horse in the path of Allah and found it with its owner, who had let it waste away and was of little wealth; he wished to buy it and came to the Messenger of Allah and told him; he said: Do not buy it, even if it is offered to you for a dirham: the likeness of the one returning to his charity is the likeness of the dog returning to its vomit.
Narrated by Muslim (1621)
Abdallah ibn Amir reported from al-Zubayr ibn al-Awwam (may Allah be pleased with him) that he dedicated a horse called Ghamr, or Ghamra; he saw a mare of its offspring being sold and ascribed to his horse, and he forbade it (a weak hadith: Ibn Majah 2393).
The reason for the Prophet's forbidding Umar to return to his charity: the giver wishing to buy it back would be lenient on his right, or seek such leniency, annulling the charity to that extent; the spirit of charity is cleansing the heart of attachment to wealth, and the inclination to recover it at a discount betrays incomplete cleansing; preserving the form of the act is required, and its recovery contradicts it: this is the secret of the dislike of dying in a land one migrated from, and Allah knows best (Hujjat Allah al-baligha, p. 517).
They then differ: is it forbidden or merely disliked? Is the sale rescinded or not? The majority hold the prohibition in Umar's hadith to be a prohibition of tanzih (discouragement), not of prohibition: Imam al-Nawawi said his saying, do not buy it and do not return to your charity, is a tanzih prohibition: it is disliked for whoever gave something in charity, or paid it out as zakat, expiation, vow or the like acts of drawing near, to buy it from the one he gave it to, to gift it to him, or to acquire it by his choice; if he inherited it from him, there is no dislike; likewise if it passed to a third party whom the giver then buys from: this is our madhhab and that of the majority (Sharh sahih Muslim 11/62; Tarh al-tathrib 4/86; Umdat al-qari 6/294). A group of scholars hold the prohibition of buying one's charity to be a prohibition (of haram), and Allah knows best.
Imam Abu Ja'far al-Tahawi (may Allah have mercy on him), on recovering one's charity by purchase, reports: our companions say there is no objection to one who paid his zakat or the expiation of his oath buying it from the one he gave it to: this is al-Awza'i's view. Malik and al-Hasan ibn Hayy dislike it, likewise al-Layth; al-Hasan adds that if one inherits it, it is directed to the purpose intended the first time, and he does not dislike this in a gift. Al-Shafi'i said: I dislike a man buying his charity but I do not rescind the sale; regarding the expiation of an oath: if he refrains from buying it, that is dearer to me.
Abu Ja'far relates the story of the horse Umar gave away and wished to buy: the Prophet said: Do not return to your charity and do not buy it: this is preferable to the saying of whoever permitted it. As for inheritance, whoever inherits it may buy it, per the hadith of Amr ibn Shu'ayb from his father from his grandfather: a man said: Messenger of Allah, I gave my mother a garden in her lifetime; she died leaving no heir but me; the Messenger of Allah said: Your charity has been accepted and your garden returned to you (a sahih hadith: Ahmad 6731; Ibn Majah 2395): this implies that inheritance does not bar him from giving it in charity again (Mukhtasar ikhtilaf al-ulama 1/439-440).
Imam al-Kasani (may Allah have mercy on him), after Umar's hadith, says it is a prohibition of encouragement: the recipient, out of shame, would be lenient on the price and become like one returning in part, and return is disliked (Bada'i al-sana'i 6/132). Al-Sarakhsi, after the saying, do not return to your charity, says that buying is not a return in charity in legal ruling: the meaning is that return is not permitted by the way of piety and honor, as in the Prophet's saying: It is not lawful for a man who believes in Allah and the Last Day to lie satiated while his neighbor beside him is hungry: such does not befit piety and honor, even if permissible in legal ruling where no obligatory right exists (al-Mabsut 12/54).
Ibn Abd al-Barr: the jurists differ over the dislike of a man buying his charity, obligatory or voluntary, which he paid out for its purpose and then wishes to buy back from whoever holds it. Malik says in the Muwatta, of a man who gave charity then found it with someone other than its recipient, for sale: leaving it is dearer to me; it is also reported from him that he said: he should not buy it. Ibn Abd al-Hakam reports from Malik: whoever dedicated a horse, which its buyer then sold: if the dedicator finds it in the buyer's hand he never buys it; the same applies to dirhams and cloth; and elsewhere in his book: leaving its purchase is better.
Abu Umar said Malik, al-Layth, al-Hasan ibn Hayy and al-Shafi'i disliked the giver's buying his charity, and none of them reported from anyone that he buy his charity; if one bought his charity, they neither rescinded the contract nor rejected the sale, and they recommended abstention; the same applies to buying what one paid as expiation of an oath, like charity. They disliked its sale because of this hadith without rescinding it, for it returns to the giver anyway without that meaning; and we explained this hadith in the story of Barira's gift, with what he gave her in charity; the hadith admits tanzih and blocking the means of selling charity before paying it out, or is restricted to voluntary tanzih.
Abu Hanifa and his companions, and al-Awza'i, said there is no objection to one who paid his zakat or the expiation of his oath buying it at a price paid to him. Qatada said: the sale in this is corrupt and rejected, for I know nothing of the fay' but the forbidden. The Zahiris said the sale is rescinded in such a case, for he matched the prohibition, interpreted on its apparent: do not buy it and do not return to your charity; they do not differ that whoever gave charity then receives it back: it is lawful for him. Abdallah ibn Burayda reported from his father that a woman came to the Prophet and said: Messenger of Allah, I gave charity to my mother with a slave girl, and she died; he said: May Allah reward you and return the inheritance to you (Muslim 1149; Ibn Majah 2394); the hadith of this chapter admits tanzih, per the narration on selling charity before paying it out, or is restricted to voluntary tanzih regarding its purchase.
Al-Tahawi said resorting to Umar's horse hadith is preferable to the saying of whoever permitted buying one's charity. Abu Umar reports that those who permitted the giver after the recipient's possession argued that his prohibition of buying it is tanzih, not prohibition, by his saying of the five categories to whom charity is lawful: or a man who bought it with his wealth, without specifying the giver; and in this hadith: or a man who had a poor neighbor, gave charity to the poor one, and the poor one gifted it to the rich man: this is the meaning of Barira's story (a sahih hadith: Abu Dawud 1635-1636; Ibn Majah 1841; Ahmad 11555; Ibn Khuzayma 2368; al-Hakim in al-Mustadrak 1840; in its wording: Charity is not lawful to a rich man except in five cases: the fighter in the path of Allah, the administrator over it, the debtor, the man who bought it with his wealth, or the man who had a poor neighbor, gave charity to the poor one, and the poor one gifted it to the rich man).
What Tahdhib al-athar (of Ibn Abd al-Barr) reports on this supports, in my view, the view that buying what one gave in charity is not permitted: the specific prevails over the general, being later than it and prevailing over it; consider: in one hadith, except one who bought it with his wealth, without the giver's proviso: this is neither contradictory nor opposing: both hadiths are employed without either being rejected; thereby the giver is prevented from buying his charity (al-Istidhkar 3/257-258; al-Tamhid 3/260-262).
Al-Zurqani (may Allah have mercy on him), in his commentary on Imam Malik's Muwatta: Yahya said Malik was asked about a man who gave charity then found it with someone other than its recipient, for sale: may he buy it?
He said: leaving it is dearer to me; for there is no difference in meaning between buying it from the recipient or from another: he returns to what he left for Allah the Exalted, as Allah forbade the Emigrants residence in Mecca after emigrating for His sake; the sale, if it occurs, is not rescinded, the prohibition implying corruption by the consensus on the sale's validity, as Ibn al-Mundhir said, reporting from Ibn Abd al-Barr: given the possibility that the hadith concerns tanzih and blocking the means; supported by his saying of the five categories: or a man who bought it with his wealth, without specifying the giver; yet in my view the specific prevails over the general, being excepted from it; were it said: charity is not lawful to a rich man except one who bought it with his wealth, provided he is not the giver, there would be no contradiction: both hadiths are employed without either rejecting the other, and the giver is prevented from buying his charity.
You may also say: yes, the specific prevails over the general, but we do not concede that it derives the prohibition: our utmost is that, if he is the giver, charity is not lawful for him; and non-lawfulness is true through dislike even if it admits prohibition: admitting the prohibition, the argument falls (al-Zurqani's sharh 2/194).
Imam al-Mawardi (may Allah have mercy on him) reports that al-Shafi'i said: I dislike a man buying his charity once it has reached its recipients, but I do not rescind the sale. Al-Mawardi explains: for that reason I disliked his buying what he gave in charity, obligatory and voluntary, based on what is reported: Umar ibn al-Khattab dedicated a horse in the path of Allah called al-Ward; he saw it sold in the market and wished to buy it; the Messenger (peace and blessings of Allah be upon him) said to him: Do not return to your charity, even if offered half of it; leave it, so that it and its offspring be yours on the Day of Resurrection (a sahih hadith, close wording already given); for he would not be lenient on its price, which would diminish his reward, and he would not follow it with regret; if he bought it, the sale is permitted though disliked.
Malik said: the sale is invalid, arguing by Umar's hadith and the Prophet's forbidding him to return to his charity. The proof of its permissibility: what is reported from the Prophet: Charity is not lawful to a rich man except in five cases, among them the man who bought it with his wealth, on its generality; and its return to the giver without the meaning by which the recipient acquires it is not forbidden: if it returns to him by inheritance, it is permitted, per what is reported: a man gave charity to his father, a garden; the father died and the garden returned to him; the Prophet said: Your charity has been accepted, it has reached its place, and it has become an inheritance; if its return by inheritance is permitted, its return by purchase is permitted: whatever may be owned by inheritance may be owned by purchase, like other properties.
Two answers to Umar's hadith: the first: Umar had made his horse a waqf (habas), and buying a waqf is invalid by agreement. The second: the hadith is carried on dislike and recommendation: the prohibition implies dislike of the contract, not its corruption, like the prohibition of selling the impure, or of a man selling over his brother's sale (al-Hawi al-kabir 3/331-332).
Ibn Qudama: the payer of zakat may not buy it back from whoever holds it; this is reported from al-Hasan: it is the view of Qatada and Malik; Malik's companions add: if he bought it, the sale is not annulled. Al-Shafi'i and others permit it, by the Prophet's saying: Charity is not lawful to a rich man except in five cases... a man who bought it with his wealth. Sa'id narrated in his Sunan: a man gave charity to his mother; she died; he asked the Prophet, who said: Allah has accepted your charity and returned it to you as inheritance: this bears on buying it, for whatever may validly be owned by inheritance may be owned by purchase, like other properties.
Our argument: what Umar reported: I dedicated a horse in the path of Allah and found it with its owner, who had let it waste away and was of little wealth; I wished to buy it and came to the Messenger of Allah and told him; he said: Do not buy it, even if offered for a dirham: the likeness of the one returning to his charity is the likeness of the dog returning to its vomit (Muslim 1621, agreed upon). If it is objected that the horse may have been a confinement (habas) in the path of Allah and he was prevented for that reason, we answer: had it been a confinement, its seller would not have sold it to its holder, nor would Umar have cared to buy it: he would have objected to the seller and prevented him, for he does not consent to what he disapproves. The Prophet did not disapprove of the horse's sale: he disapproved of Umar's buying it, citing his return to the charity.
Second: we argue by the generality of the wording without regard to the specificity of the cause: the Prophet said, do not return to your charity, meaning by buying; and holding the generality of the wording is preferable to clinging to the specificity of the cause. If it is objected that the wording does not cover buying: return in charity is recovery without compensation and rescission of the contract, like return in the gift, the proof being the Prophet's saying: the one returning in his gift is like the one returning to his vomit; and if someone gifted a thing then bought it from his recipient, it is permitted. We answer: the Prophet mentioned it answering Umar, who asked him about buying the horse: had the wording not covered the buying asked about, it would not be an answer; and extracting the specific cause from the general wording is not permitted, lest the question go unanswered. Jabir is reported to have said: when the truthful collector comes, hand him your charity and do not buy it; they used to say: buy it, and I say: it is only for Allah.
And from Ibn Umar: Do not buy the purity of your wealth. Buying it is a means of recovering part of it: the poor man, ashamed, does not haggle over its price, or lowers it hoping for another charity, or fears the giver will recover it if he does not sell: such a path must be avoided, as if conditioning him to resell it. It is also a means of extracting its value, though he is forbidden it; as for their hadith, we act on it, and its return by inheritance is not disputed.
Ibn Abd al-Barr: all the scholars say that if it returns to him by inheritance it is good for him, except Ibn Umar and al-Hasan ibn Hayy; yet sale is not the meaning of inheritance: ownership by inheritance is established by legal ruling, without choice, and is not a means to what we mentioned; the other hadith is mursal and general, ours specific and authentic: acting on it is preferable in every respect. Dissection: if necessity requires buying one's charity, as when the obligatory share is a share of an animal the poor man cannot use and finds no buyer but the owner of the rest (to avoid the poor partnership), or when the obligatory is in palm or vine fruit, grapes and fresh dates, requiring sale before the harvest: al-Qadi mentions that sale by the owner of the wealth is permitted in this case; likewise in the first situation and every case of necessity: the prohibition of buying aimed only at sparing the poor man harm, and the harm is greater in forbidding the sale: permitting it is preferable (al-Mughni 2/271-272).
Ibn al-Qayyim (may Allah have mercy on him): the ninety-second aspect is that he forbade the giver to buy his charity even if he found it sold in the market, blocking the means of returning to what left him even with compensation: one prevented from owning his charity with compensation, a fortiori cannot own it without compensation, which more firmly weans souls from attaching to what they spent for Allah; the correct is what the Prophet ruled: the absolute prevention of buying it.
Without doubt permitting it opens a way to deceive the poor man: paying him the charity of his wealth then buying it back below its value; the poor man, in need, believes he has gained something and consents to the sale; Allah knows the secrets: among the merits of this perfect sharia is blocking the means and preventing the giver from buying his charity; may Allah grant success (I'lam al-muwaqqi'in 3/156).