Fourth: It is the gift’s becoming wholly unavailable for return, whether through death, consumption, or disposal by manumission or otherwise. If only part of it, or even most of it, is lost, however, the giver may reclaim what remains unless he is satisfied with the recompense for his gift. There is no disagreement that, if the gift perishes while in the recipient’s possession, or he makes its return impossible through consumption or manumission, he must pay its value. One view assesses this as of the day the gift was made; another, as of the day possession was taken.

Section

There are two views on whether someone who gives a gift in expectation of recompense must hand it over before receiving that recompense, or need not surrender it until he receives it:

First: This is like a sale, and the giver may withhold his gift until he receives his recompense. This is the explicit position in the Book of Gifts in al-Mudawwanah.

Second: He has no such right, because this is an exchange of generosity and differs from a sale in this respect.

Section

If we hold that the giver must hand over the gift before receiving recompense, the recipient bears the risk of its loss in all cases from the conclusion of the gift contract. The disagreement concerning property withheld pending payment of its price does not apply here. If the gift becomes unavailable for return, the recipient must pay its value as of the day the gift was made, not the day possession was taken; this is agreed upon.

If, however, we hold that the giver need not hand over the gift and may withhold it pending recompense, the disagreement over who bears its loss before possession is taken is the same as that concerning property withheld pending payment of its price. One view is that the seller bears the loss in all cases and remains obliged to deliver the property in full. Another is that the buyer bears the loss if the property’s destruction is established by evidence; if it is not established and the seller merely claims that it has perished, his claim is not accepted, as with pledged property. This is Ibn al-Qāsim’s position. A further view is that the buyer bears the risk in all cases from the conclusion of the contract; even if the property’s destruction is not established, the seller’s claim that it has perished is accepted. This is one of Mālik’s two views in the Book of Defects