Is the gift (Hiba) of an unknown or unspecified item valid?
General Chapter
Al-Mughni
Book of Gifts and Donations
Primary text
The gift of an unknown item is invalid. This view is held by Ahmad, as narrated by Abu Dawud and Harb. Furthermore, if one says, 'A sheep from my flock, I have gifted it to you,' it is not valid, which is the position of Al-Shafi'i. The reasoning for invalidity, according to one interpretation, is that if the uncertainty (Jahl) pertains to the giver, it invalidates the gift due to potential risk (Gharar) on the giver's right. If the uncertainty pertains only to the recipient, it does not invalidate the gift because there is no risk to the recipient's right, similar to the legatee in a bequest (Wasiyyah), where knowledge of the bequeathed item is not required for the recipient.
Supporting text
Malik holds that the gift of an unknown item is valid because it is a voluntary donation (Tabarru'), and thus valid in the unknown, similar to a vow (Nathr) or a bequest. The counter-argument to Malik is that Hiba is a contract of ownership transfer (Tamlik) that cannot be suspended by conditions, thus invalidating it when unspecified, like a sale (Bay'), distinguishing it from a vow or bequest.