Chapter: The Subject of a Bequest

A bequest is valid with respect to something that one is unable to deliver, such as a runaway slave or a bird in the air; and with respect to something nonexistent, such as whatever his animals or trees produce, indefinitely or for a specified period …

His statement, “It is valid with respect to something that one is unable to deliver, such as a runaway slave”: “It is valid,” that is, the bequest. A runaway slave is one who has fled from his master, and his fleeing from his master means that he will not return to him. Thus, if he bequeaths his runaway slave to Zayd, the bequest is valid, because there is no harm to him: if he finds him, he is his; and if he does not find him, he has lost nothing. Any expense he incurs in searching for him is his own responsibility.

His statement, “and a bird in the air”: that is, a bequest of a bird in the air is likewise valid. For example, a person has pigeons flying in the air and says, “I bequeath my flying pigeons to Zayd.” The reason is that he either remains unharmed or gains something. The same applies to bequeathing a stray camel or a lost sheep.

Based on this, we say that the validity of gifting something which one is unable to deliver may be derived from this ruling. If a bequest is valid with respect to something one is unable to deliver, then a gift is likewise valid, since both are acts of voluntary beneficence. This is the correct view: it is permissible to gift something one is unable to deliver, such as a runaway slave or a bird in the air. If it is obtained, the recipient gains; and if it is not obtained, he incurs no loss, but remains unharmed. As for selling a runaway slave or a bird in the air, this is not permissible, due to the hadith of Abu Hurayrah: “The Prophet ﷺ prohibited sales involving excessive uncertainty.” (1)