Is the bestowal (hibah) or charity (sadaqah) of measured or weighed items valid without physical possession (qabd)?

General Chapter

Al-Mughni

Book of Gifts and Donations

Book 28 · Issue 1 · Bab 1

Open in Qurani

Primary text

The bestowal (hibah), charity (sadaqah), gift (hadiyyah), and grant (atiyyah) are all defined as transferring ownership during life without compensation, though sadaqah and hadiyyah differ based on intent (charity towards God versus affection). The validity of bestowing measured (makil) or weighed (mawzun) items requires physical possession. This is the view held by the majority of jurists, including Al-Nakha'i, Ath-Thawri, Al-Hasan ibn Salih, Abu Hanifa, and Ash-Shafi'i. The evidence for this position rests on the consensus of the Companions (Sahaba). Narrations from Aisha regarding Abu Bakr indicate that a grant (nahlah) was not considered fully his until taken possession of, and 'Umar ibn Al-Khattab declared that a grant ('nahlah') is only valid if the child takes possession of it, otherwise it reverts to inheritance upon the giver's death. Al-Hasan ibn Thabit confirmed the consensus of Abu Bakr, 'Umar, 'Uthman, and 'Ali that a gift is only effective when possessed.

Supporting text

Malik and Abu Thawr hold that the obligation for measured or weighed items arises immediately upon the contract (aqd), citing the general statement of the Prophet, peace be upon him, "The one who revokes his gift is like the one who revokes his vomit." They argue that as it is the removal of ownership without compensation, it must be binding upon contract, similar to endowment (waqf) and manumission ('itq). They further compare it to bequests (wasiyyah) and endowments as a binding gratuity not requiring possession.