Is the gift (*Hiba*) of an undivided share (*Musha'*) valid?
General Chapter
Al-Mughni
Book of Gifts and Donations
Primary text
The gift of an undivided share is valid. This position is held by Malik and Al-Shafi'i. Al-Shafi'i holds that this validity applies whether the share is divisible or not. The evidence for this validity includes the Prophet Muhammad's (peace be upon him) statement to the delegation of Hawazin concerning the spoils: "What was for me and for the Banu Abd al-Muttalib is for you." This constituted a gift of an undivided share. Further evidence is the Hadith where the Prophet (peace be upon him) stated regarding property taken from spoils: "What was for me and for the Banu Abd al-Muttalib is for you." Additionally, when a wild donkey captured and injured by an individual was claimed by its owner, the Prophet (peace be upon him) commanded Abu Bakr to divide it among the people. The juristic reasoning is that since the sale of an undivided share is permissible, its gift is also permissible, similar to an indivisible item. Furthermore, an undivided share resembles something indivisible.
Supporting text
The Hanafi scholars state that the gift of an indivisible share that is divisible is invalid because possession (*Qabd*) is a condition for the validity of a gift, and the obligation to divide prevents the validity and completion of possession. However, if the item is inherently indivisible, its gift is valid due to the absence of the obligation to divide. Abu Hanifa further ruled that if one person gifts an item that is divisible to two recipients, the gift is invalid, although his two companions permit it. Likewise, if two people gift an item to two recipients, it is invalid based on the standard analogical reasoning of the Hanafis because each recipient is gifted an undivided portion.