Thus, the remission or gift must come from someone whose voluntary disposition is valid. If it comes from someone whose voluntary disposition is not valid, then neither the remission nor the gift is valid, because the condition is absent.

So, if the guardian of an orphan remits part of a debt owed to the orphan and collects the remainder, that remission is not valid, because the orphan’s guardian is not permitted to make voluntary gifts. It may, however, be said that if he cannot recover the orphan’s right except by remitting part of it, then such remission is permissible because of the benefit involved. For example, a man delays payment, and I sold to him assuming that he would pay his debts and was financially solvent, but it later becomes clear that the opposite is the case. I then settle with him by remitting part of the amount. In this case, recovering something is better than losing everything. This falls under the general import of Allah’s saying:

“Do not approach the property of the orphan except in the best manner.” [al-An‘am: 152]

Is the guardian liable in this case?

The answer is: it must be considered. If he was negligent, he is liable; but if he was not negligent, he is not liable.

Another condition is that it not be concluded using the wording of settlement, because one cannot settle over one’s own property by giving up some of it.

For example, he says, “I lent you one hundred dirhams, so settle with me for part of it.” The other then says, “I have settled with you.” This is not valid. This is what they have said.

However, it should be said that if it is understood from this settlement that it is a remission in the case of a debt, or a gift in the case of a specific asset, then it ought to be accepted, because what matters is the meaning, not the wording. Thus, once we know that what they intend by settlement is a gift in the case of a specific asset and a remission in the case of a debt, then there is no objection.