Book of Gifts
The discussion of a gift revolves around four matters: its essential elements, its conditions, its varieties, and its legal rulings. From each of these categories we shall mention only the well-known issues.
We say, then:
Essential elements
The pillars of a valid gift are three: 1) the donor, 2) the beneficiary, and 3) the donated item.
- The donor
All jurists agree that a gift is valid when the donor owns the item with a sound, uncontested title and is in good health, enjoying full control of his property. They differed, however, concerning his gift while ill, prodigal, or bankrupt.
a. The sick person
The majority hold that he may dispose of no more than one third of his estate, likening the matter to a bequest—that is, to a gift whose transfer has been completed under the usual conditions. A group of the early scholars and the Ẓāhirī school contend that, should he die, the whole amount given is to be taken from his total capital, and they agree that if he recovers the gift stands in full.
The majority rely on the ḥadīth of ʿImrān ibn Ḥuṣayn: when a man emancipated six slaves while on his deathbed, the Messenger of Allah, peace and blessings be upon him, ordered that one-third of them be set free and the remainder kept in servitude.
The Ẓāhirīs base their view on the presumption of continuity—namely, the rule already established by consensus. Since all agreed that a gift made in sound health is valid, that ruling must continue through illness unless clear evidence from the Qur’an or an unequivocal Sunnah dictates otherwise; in their reading the ḥadīth just cited concerns a bequest, not a gift.
According to the majority, the illnesses that restrict a person’s disposal are those feared to be fatal. Mālik applies the same ruling to other perilous situations as well—standing between two battle lines, a pregnant woman about to deliver, or a sailor on a storm-tossed sea—though there is some disagreement on these cases. Chronic ailments, however, do not call for such restriction, as was noted earlier in the Book of Interdiction. As for prodigals and the insolvent, all who recognize their interdiction concur that any gift they make is invalid.
- The donated item
Everything that can be lawfully owned may be the object of a gift, and there is unanimous agreement that a person may donate all his wealth to an unrelated party.
The jurists disagreed, however, about favouring some children over others with gifts or bestowing one’s entire estate on certain children while excluding the rest. The majority of scholars in the various regions deem such preference reprehensible, yet if it occurs they still validate it. The Ẓāhirīs rule that any preference is impermissible, much less giving away one’s entire wealth. Mālik allows preference but forbids granting all one’s wealth to some children while depriving the others.
The Ẓāhirīs’ proof is the ḥadīth of al-Nuʿmān ibn Bashīr, which is agreed upon as authentic, although it has