Must a guardian, other than the father, appoint an agent for a minor when making a gift to the minor?
General Chapter
Al-Mughni
Book of Gifts and Donations
Primary text
The companions of our school hold that when a guardian other than the father grants a gift to a minor, it is necessary to appoint an agent to accept the gift and take possession on behalf of the minor, similar to the ruling in a sale contract. This is because the declaration originates from the guardian, while acceptance and possession must come from another party. The father is exempt from this requirement because he is permitted to undertake both declaration and acceptance/possession, as he is permitted to sell to himself.
Supporting text
The correct view holds that the father and other guardians are equal in this matter. Since the contract of gift is one that can legitimately be concluded by him or his agent, he is permitted to undertake both sides of the transaction, unlike in a sale. A sale involves mutual exchange and profit motive, leading to suspicion regarding contracting for oneself. A gift, however, is purely for the benefit of the minor without any self-interest or suspicion. Furthermore, the prohibition in sale is due to receiving consideration from the minor's wealth, whereas in a gift, the giver gives and does not take. Finally, since acceptance and possession can be waived by declaration and witnessing, there is no need to appoint an agent for them.