Those jurists then allow gestures to take the place of verbal expression when a person is unable to speak, as in the case of someone who is mute.

They likewise allow writing to take the place of verbal expression when needed. They may also make exceptions for cases whose permissibility when the need arises is established by scriptural texts. One example is a pilgrimage sacrificial animal that becomes incapacitated before reaching its appointed place of sacrifice: it is slaughtered, and the sandal suspended from its neck is stained with its blood as a sign to people; whoever takes it acquires ownership of it. The same applies to gifts and similar matters. Their fundamental rule, however, is reliance on verbal expression, because the basis of contracts is the mutual consent mentioned in the words of Allah Most High: “Unless it is trade conducted by mutual consent among you” [al-Nisāʾ: 29] [al-Nisāʾ: 29], and in His words: “But if they willingly give up any of it to you” [al-Nisāʾ: 4] [al-Nisāʾ: 4]. What lies within a person cannot be reliably ascertained except through words, which have been established to disclose what is in the heart, since actions involving exchange by conduct and the like may bear many interpretations. Moreover, contracts belong to the category of verbal declarations; in financial dealings, they are analogous to remembrance and supplication in acts of worship.

The second opinion is that contracts may validly be concluded through actions [in cases] where they are commonly concluded in that manner, such as sales of [inexpensive goods]; charitable endowments, as when someone builds a mosque and permits people to pray in it, dedicates land for burial, or builds an ablution facility and makes it freely available to the public; certain forms of hire, as when someone gives his garment to a launderer or a tailor who works for payment, or boards a boatman’s vessel; gifts; and similar matters. If these contracts were not concluded through actions that indicate them, most people’s affairs would fall into disorder. Furthermore, from the time of the Prophet—may Allah bless him and grant him peace—until our own day, people have continued to enter into contracts concerning such matters without any verbal formula, solely through an action indicating the intended purpose.

This is the position generally indicated by Abū Hanīfa’s legal principles, and it is one position in the school of