What is the ruling on a gift (Hiba) if the donor or the donee dies before the donee takes possession?
General Chapter
Al-Mughni
Book of Gifts and Donations
Primary text
The gift is nullified if the donor or the donee dies before possession is taken, whether this occurs before or after permission to take possession was granted. This is because the gift is a revocable contract, which is voided by the death of one of the contracting parties, similar to agency (Wikalah) or partnership (Shirka). Ahmad, according to one narration, holds that if a gift does not reach the donee before the donor's death, it returns to the donor unless it has been possessed. Evidence supporting the return of the gift is found in the narration concerning the Prophet (peace be upon him) whose gifts to the Negus returned to him upon the Negus's death, and the Prophet then distributed them, giving the remainder and a fine garment to Umm Salamah.
Supporting text
Conversely, it is argued that the gift is not voided by the donor's death, and the heir of the donor takes the place of the donor regarding granting permission for possession or revocation. This view is held by Abu al-Khattab and is similar to the position of most scholars of the Shafi'i school, reasoning that the gift contract tends toward finality and thus is not voided by death, analogous to a sale conditioned on an option to withdraw.