becomes insolvent—contrary to al-Shāfiʿī and Abū Hanīfah, who hold that gifts and charity do not become binding through a verbal declaration and become obligatory only when possession is taken, and that the giver may revoke them so long as they have not been received from him and taken into possession.
The evidence for Mālik and those who share his view that charity and gifts become obligatory through a verbal declaration is the saying of Allah, Mighty and Majestic:
“O you who believe, fulfil your contracts.” [al-Māʾidah: 1]
A contract consists of offer and acceptance, both of which are present in the case under discussion. There is also the saying of the Messenger of Allah (peace and blessings be upon him): “It is not lawful for a giver to take back his gift, except a father concerning what he gives his child.”
The rational argument is that, if charity and gifts were not contracted through a verbal declaration, they would not become binding through the taking of possession. For taking possession alone, if the declaration were disregarded and given no legal effect, would not establish either charity or a gift. Our agreement that charity and gifts become binding when possession is taken therefore proves that they are contracted through a verbal declaration, since taking possession must follow a prior contract. If it does not follow a prior contract, it produces no legal effect on its own.
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Contracts through which ownership is transferred fall into two categories: those involving consideration and those without consideration.
Those involving consideration do not require possession to be taken, since no suspicion arises in such cases. As for those without consideration, such as gifts and charity, Mālik and all his companions hold that taking possession is a condition of their full completion.
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There has been disagreement concerning an addition to the price of merchandise or to a woman’s bridal dower. Such an addition has been treated as a gift, requiring possession to be taken, in some cases but not others. Mālik and his companions did not follow a consistent analogical rule in this matter. A group of jurists from the major centres disagreed with them, treating the addition as part of the price wherever the sale had been concluded on that basis. They supported this with “the report of Jābir ibn ʿAbd Allāh that the Messenger of Allah (peace and blessings be upon him) bought his camel from him and, when settling payment, gave him an additional