بَابُ الْعَطَايَاGifts

¹ The statement: It should not be sold, gifted, or inherited, etc., The majority, along with Abu Yusuf and Muhammad, used this as evidence for the permissibility of endowment (waqf). There is no dispute among them regarding the obligation to give in charity the proceeds of the endowment as long as the endower is alive, such that if someone endows a house or land, they must give its yield in charity, akin to a vow to give its yield. There is also no dispute about its permissibility in terms of transferring ownership of the principal if it is accompanied by a judge’s ruling or designated for after death, such as saying: “When I die, my house or land is an endowment for such-and-such,” or “It is an endowment in my lifetime and a charity after my death.” They differed, however, on its permissibility to transfer ownership of the principal without designation for after death or a judge’s ruling. Abu Hanifah said it is not permissible, and the endower retains the right to sell or gift the endowed property, and upon their death, it becomes an inheritance for their heirs. Abu Yusuf, Muhammad, and the majority said it is permissible, so it cannot be sold, gifted, or inherited. They also differed on whether it enters the ownership of the beneficiary. Our scholars said it does not, but the beneficiary benefits from its yield through charity, as endowment is the retention of the principal and giving its proceeds in charity, and retention does not entail ownership of the retained property. Shafi’i, Malik, and Ahmad said it transfers to the ownership of the beneficiary if they are eligible, and Shafi’i also said in one opinion that it transfers to Allah, which is a narration from our scholars. As stated in Umdat Al-Qari. In Ad-Durr Al-Mukhtar: Endowment is the retention of the asset under the endower’s ownership rule and giving its benefit in charity, even partially. The sounder view according to Abu Hanifah is that it is permissible but not binding, like a loan. According to Abu Yusuf and Muhammad, it is the retention of the asset under Allah’s ownership rule, and its benefit is directed to whomever the endower wishes, even if wealthy, making it binding, so it cannot be revoked or inherited, and the fatwa is based on their view of its binding nature.

¹ The statement: The lifelong gift is permissible, In Ad-Durr Al-Mukhtar: The lifelong gift is valid for the recipient and their heirs after them due to the invalidity of the condition. In Al-Marqah: An-Nawawi said: Our scholars stated that the lifelong gift has three scenarios. First: If someone says, “I grant you this house for your lifetime, and after your death, it goes to your heirs or descendants,” it is valid without dispute, and the recipient owns the house’s title, as it is a gift. After their death, it goes to their heirs, or else to the public treasury, and it never reverts to the giver. Second: If they say only, “I grant it to you for your lifetime,” without mentioning anything else, Shafi’i has two opinions. The sounder and newer opinion is that it is valid, with the same ruling as the first scenario. Third: If they say, “I grant it to you for your lifetime, and after your death, it reverts to me or my heirs,” its validity is disputed. The sounder view among us is that it is valid, with the same ruling as the first scenario, relying on the unrestricted narrations and deviating from the analogy of conditions. Ahmad said: The unrestricted lifelong gift is valid, but not the time-bound one. Malik said: In all cases, the lifelong gift grants ownership of the house’s benefits, not its title. Abu Hanifah’s view aligns with ours. As stated in Umdat Al-Qari.

¹ The statement: Subject to inheritance, It means it becomes the property of the recipient and, after their death, their heir, like other properties, and does not revert to the giver, just as one cannot revoke a gift. This is the view of Abu Hanifah and Shafi’i, whether descendants are mentioned or not. As stated in Al-Marqah.

¹ The statement: Hold onto, etc., It means he informed them that the lifelong gift is a valid, complete gift, owned fully by the recipient and does not revert to the giver. If they act on this, whoever wishes may grant it knowingly, and whoever wishes may refrain, as they used to think it was like a loan that could be revoked. This is evidence for Abu Hanifah, Shafi’i, and their followers. As stated in Al-Marqah.

¹ The statement: Do not grant conditional gifts or lifelong gifts, etc., Some of our scholars said this is a prohibition for guidance, meaning do not give your wealth temporarily and then take it back. Rather, if you give something, it leaves your ownership and does not revert, whether termed a gift, lifelong gift, or conditional gift. It means do not grant conditional or lifelong gifts thinking they do not entail ownership for the recipient and will revert to you after their death. This is not so, as whoever grants a conditional or lifelong gift, it belongs to the recipient’s heirs. The prohibition was before permissibility, or it means it is not ideal for the benefit, but if done, it is valid and belongs to the recipient’s heirs, so there is no need to claim abrogation. Understand. In An-Nihayah: They used to do this in the pre-Islamic era, but the Lawgiver annulled it and informed them that whoever grants a lifelong or conditional gift, it belongs to their heirs after them. As stated in Al-Marqah and Al-Luma’at, summarized from them. ² The statement: It belongs to their heirs, At-Tayyibi said: The pronoun refers to the recipient, as does “its people.” The “fa” in “whoever is granted” indicates causation and explanation for the prohibition. As stated in Al-Marqah.

¹ The statement: The conditional gift is permissible, etc., In Al-Hidayah: The conditional gift is invalid according to Abu Hanifah and Muhammad, but Abu Yusuf said it is permissible. The disagreement stems from interpreting the conditional gift, though they agree it involves waiting. Abu Yusuf interpreted this term as immediate ownership with the giver expecting reversion, so the ownership is valid, but the expectation of reversion is invalid, as in the lifelong gift. They said: The waiting is in the ownership itself, as the meaning of a conditional gift is, “This house belongs to the one who outlives the other,” as if saying, “I await your death, and you await mine. If you die first, it is yours; if I die first, it is mine.” This makes ownership contingent on the risk of the owner’s death before the other, which is invalid. As stated in Nata’ij Al-Afkar. In Al-Kawkab Ad-Durri: Know that the conditional gift is explained in two ways. First: It is given as a gift with the condition that it belongs to the giver if they die first. This is permissible, but the corrupt condition does not invalidate the gift, as gifts are not nullified by invalid conditions. Second: It is not given as a gift but said, “If you die first, this thing is yours; if I die first, it is mine,” or “Live in this house or use this thing on the condition that it is yours if I die first, and if you die first, it is mine.” This conditional gift is invalid, meaning it does not become the recipient’s property or their heirs’ after them, as it is a loan presently or a conditional bequest ultimately. The invalidity is due to the gambling element of tying ownership to a risky condition. This resolves the disagreement between the narrations that the conditional gift is invalid and permissible, as permissible refers to one meaning and invalid to another, which is the Imam’s view.

¹ The statement: A man has the right, etc., If someone gives a gift to a non-relative, according to us, they may revoke it after acceptance. Before acceptance, the gift is not complete without a preventing factor, though revoking is disliked, either prohibitively or preferably. Shafi’i said there is no revocation, and this narration supports us. As stated in Al-Hidayah and Ad-Durr Al-Mukhtar.

¹ The statement: If a gift is given, etc., Its details, highlighting the benefits of its conditions, are as in Al-Hidayah and its commentaries: A gift is either accepted or not. If not accepted, the giver may retract it, and their retraction is effective, as an unaccepted gift does not confer ownership, as An-Nakha’i said: A gift is not valid until accepted, while charity is valid before acceptance. The condition of acceptance is evidenced by the narration of Abu Bakr’s gift. If accepted, it is either to a close relative (e.g., parents or children) or to someone else, whether a complete stranger, a distant relative like cousins, or a non-blood relative like a foster sibling. If to a close relative, retraction is invalid, as the purpose is maintaining family ties, which is achieved, as is the case with gifts between spouses. This is supported by Samurah’s narration. If to someone else, if given as charity to a poor person solely for Allah’s sake, retraction is also invalid. Otherwise, retraction is permissible unless prevented, such as if the recipient compensates for it, making the gift binding, or if the recipient enhances the gift with planting or building, or if it leaves their ownership through sale or gift, or if the gift perishes or one of them dies. As stated in At-Ta’liq Al-Mumajjad. In Rahmat Al-Ummah: If a parent gives a gift to their child, Abu Hanifah said they cannot retract it under any circumstances, while Shafi’i said they can always retract.

¹ The statement: Treat your children equally, etc., At-Tahawi said in Sharh Ma’ani Al-Athar: Our scholars differed on equality. Abu Yusuf said: Equalize between males and females. Muhammad ibn Al-Hasan said: Distribute according to inheritance shares, with males receiving twice the share of females [An-Nisa: 11]. He favored Abu Yusuf’s view, citing the statement: Treat your children equally in giving gifts as you would like them to treat you equally in kindness as evidence for equalizing males and females. As stated in At-Ta’liq Al-Mumajjad. In Rahmat Al-Ummah: Favoring some children with gifts is unanimously disliked, as is preferring some over others. If one favors, must they retract? The three [Hanafi scholars] said it is not obligatory, but Ahmad said it is. This is obligatory according to Tawus, Ath-Thawri, Ahmad in one narration, Ishaq, and Bukhari, who said equalizing gifts among children is obligatory, and if given unequally, it is invalid. The majority said it is recommended, and unequal giving is disliked but does not invalidate the gift, indicating the desirability of equalizing males and females in gifts. Summarized from At-Ta’liq Al-Mumajjad and Al-Marqah.

¹ The statement: Could you not have treated them equally?, At-Tahawi said: Does this not show that the Messenger of Allah (ﷺ) wanted him to treat his son and daughter equally and not favor one over the other? This is evidence for what we mentioned regarding gifts.

¹ The statement: Have someone else witness this, An-Nawawi said: It indicates that one should equalize among children in gifts. If some are favored or given to some and not others, Shafi’i, Malik, and Abu Hanifah said it is disliked but not prohibited, and the gift is valid. Tawus, Urwah, Mujahid, Ath-Thawri, Ahmad, Ishaq, and Dawud said it is prohibited. They cited the narration, “I do not witness injustice,” and other wordings of the narration. Shafi’i and his supporters cited, Have someone else witness this, saying: If it were prohibited or invalid, he would not have said this.

¹ The statement: Rewarded for them, Meaning he reciprocated by giving the giver compensation. Rewarding for a gift is voluntarily desirable according to us, following the Lawgiver’s example. The author of At-Tawdih said: According to us, rewarding is not obligatory in any case, whether the gift is from a superior to an inferior, vice versa, or between equals. They differed on one who gives a gift and then seeks reward, saying, “I only intended the reward.” Malik said: It depends. If the giver is someone who typically seeks reward from the recipient, like a poor person giving to a rich one, they are entitled to it, as Shafi’i said in his old opinion. Abu Hanifah said, and Shafi’i in his newer opinion: They are not entitled unless stipulated, as the essence of a gift is voluntary giving, and requiring reward contradicts its essence. Malik cited the narration of the Bedouin for the obligation of reward, saying: If it were not obligatory, he would not have rewarded or increased it, and if rewarding were voluntary, the increase would not be obligatory, and he would have disapproved of the Bedouin’s request. I say: He hoped for his noble character and habit of rewarding. As stated in Umdat Al-Qari.