Is a verbal offer and acceptance required for the validity of a gift (Hiba) or a grant (Atiyyah)?
General Chapter
Al-Mughni
Book of Gifts and Donations
Primary text
The necessity of formal verbal offer (Ijab) and acceptance (Qabul) is questioned. Some scholars, including Al-Qadi and Abu Al-Khattab, maintain that a gift or grant is invalid unless both Ijab and Qabul are present, regardless of whether physical possession (Qabd) has occurred. This view aligns with the opinion of most Shafi'i scholars because a gift contract involves the transfer of ownership, thus necessitating both elements, similar to marriage. The preferred view is that mutual conduct (Mu'atah) and actions demonstrating intent to offer and accept are sufficient, rendering explicit verbalization unnecessary. This is the selection of Ibn Aqil. The evidence rests upon the practice of the Prophet Muhammad (peace be upon him), who gifted and was gifted, gave charity, and commanded his collectors to distribute and receive it, as did his Companions, without any recorded formal offer or acceptance language. A specific narration involves the Prophet Muhammad (peace be upon him) telling Umar to sell him his camel; Umar responded, "It is for you, O Messenger of Allah," and the Prophet then stated it was for Ibn Umar to do with as he pleased, without recording a formal acceptance from either party. Furthermore, when food was brought to the Prophet (peace be upon him) and identified as a gift (Hadiyyah), he would eat with his Companions after striking his hand down, indicating permission to eat was established by context, not explicit verbal acceptance.
Supporting text
The necessity of formal verbal Ijab and Qabul is only stipulated when the transaction occurs without established custom (Urf) or specific circumstantial evidence (Qara'in al-Ahwal) indicating mutual consent for the transfer of ownership. Since mere conduct is accepted in sales contracts (Bay')—which are definitive reciprocal transactions—it should be prioritized in gifts, which also involve the transfer of ownership.