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The caliphs’ agreement that taking possession is necessary constitutes authoritative evidence, for the Messenger of Allah ﷺ said: “Adhere to my Sunnah and the Sunnah of the rightly guided caliphs after me; hold fast to it with your molar teeth.” Our scholars have maintained that this represents a consensus of the Companions, since the same position is also reported from Anas ibn Mālik and others, with no Companion holding a contrary view. This is clearly established by the report from ʿUmar ibn al-Khattāb (may Allah be pleased with him), who said in the presence of the Companions: “What is the matter with men who give their children gifts…”—to the end of the report. None of them objected to his statement or disagreed with him. Rather, they all remained silent and acquiesced, indicating their agreement with his position.
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According to Mālik’s school, gifts and charitable donations are valid even when the property given is not fully known or consists of an undivided share, whether it is capable of division or not. This differs from the position of the Iraqi scholars, who maintain that gifts and charitable donations do not become binding through a verbal declaration, but only upon receipt, and that the property must be divided, separately identified, and known rather than unknown. They also hold that the giver or donor may revoke his gift or charitable donation until the recipient takes possession of it. Some of them distinguish between gifts and charitable donations, holding that a charitable donation is binding even before receipt, because it is intended for Allah’s sake. This is also one of the two opinions held by al-Shāfiʿī.
The correct position is that of Mālik (may Allah have mercy on him): gifts involving uncertainty or property whose particulars are unknown are valid. Examples include an inheritance of unknown amount, a runaway slave, a stray camel, and fruit that has not yet begun to ripen. We have only been forbidden to sell what involves uncertainty, whereas gifts are acts of kindness and generosity, intended neither as gambling nor as a means of gaining an unfair advantage.
The scholars unanimously agree that if someone bequeaths a portion of his wealth—a third or less—without knowing its weight or amount, the bequest is valid and effective. This refutes the position of those who reject a free person’s charitable disposition of a third of his property, despite the Prophet’s words—