The scholars have differed over the precise wording of this report. Its substance, however, is that al-Nuʿmān’s father, Bashīr, brought him to the Messenger of Allah—may Allah bless him and grant him peace—and said, “I have given this son of mine a slave boy that belonged to me.” The Messenger of Allah, peace and blessings be upon him, asked, “Have you given every one of your children something like this?” He replied, “No.” The Messenger of Allah, peace and blessings be upon him, said, “Then take it back.”
Mālik, al-Bukhārī, and Muslim all transmit this wording, and they conclude that the order to “take it back” renders the gift void. In some versions of the narration he—upon him be peace—added, “This is injustice.”
The majority argue that there is unanimous agreement that a man, while in sound health, may give his entire estate to outsiders rather than to his own children; if such a grant is permissible for a stranger, it is even more so for a child. Their evidence is the well-known report that Abū Bakr gave ʿĀʾishah the harvest of twenty wasqs from his property at al-Ghābah. When death approached him he said, “By Allah, my daughter, there is no one whose prosperity after me I would love more than yours, nor anyone whose poverty after me would pain me more than yours. I had given you the harvest of twenty wasqs; had you gathered it and taken possession of it, it would have been yours, but today it is the property of the heir.”
They maintain that this ḥadīth is intended as a recommendation. The proof is found in a version that reads:
“Do you not wish that they should all be equal toward you in dutifulness and kindness?”
He answered, “Yes.”
The Prophet said, “Then have someone other than me bear witness to this.”
Mālik, however, held that the prohibition against a man’s giving all his wealth to one of his children should be taken as obligatory; for him, the purport of the ḥadīth forbids a father to single out some of his children with his entire estate.
The crux of the disagreement lies in the clash between analogy (qiyās) and the literal wording of the prophetic prohibition. For most scholars, a prohibition in its form signifies unlawfulness just as a command signifies obligation. Hence those who combine textual evidence with analogy interpreted the ḥadīth as a mere recommendation or restricted it to specific cases, as Mālik did. Among those who accept analogy there is no dispute that analogy may particularise a general Sunnah and divert its apparent sense—namely, to shift the wording of prohibition from outright illegality to mere reprehensibility. As for the Ẓāhirīs, who do not permit analogy in matters of the Sacred Law, they adhered to the literal text of the ḥadīth and ruled that preferential gifting is unlawful.