Does a person break an oath not to gift or lend if they issue the proposal (Ijab) but the recipient does not accept?
General Chapter
Al-Mughni
Book of Oaths
Primary text
If one swears not to gift or lend, and issues the proposal, but the other party does not accept, the oath is broken according to Al-Qadi. This is also the view of Abu Hanifa and Ibn Surayj. They argue that since gifting and lending have no consideration (Aiwad), the designation of the act (Ism) is achieved solely by the proposal, and acceptance is merely a condition for the transfer of ownership, not part of the efficient cause. Therefore, the oath is broken by the proposal alone, similar to a bequest (Wasiyyah).
Supporting text
Al-Shafi'i holds that the oath is not broken by the proposal alone because gifting and lending, like marriage and sale, are contracts that are not complete without acceptance. Abu Al-Khattab maintains that the oath is broken by the proposal alone in bequests, gifts, and charity. The apparent view is that Al-Shafi'i does not dissent regarding bequests and gifts because the term is applied to them even without acceptance, as evidenced by the verse regarding bequests: {It is prescribed for you, when death approaches one of you, if he leaves behind good, that he make a bequest for the parents and close relatives} (Quran 2:180), which refers only to the proposal (Ijab) and not acceptance, especially since a bequest is valid before the testator's death without immediate acceptance.