The jurists also disagreed, under this heading, about the permissibility of gifting an undivided share of property that has not yet been apportioned.

Mālik, al-Shāfiʿī, Aḥmad, and Abū Thawr held that such a gift is valid, whereas Abū Ḥanīfah maintained that it is not.

The majority’s proof is that possession in this case can be effected just as possession is effected in a sale. Abū Ḥanīfah’s proof is that possession is impossible unless the object is singled out, like a pledged item.

Within the madhhab there is no dispute over the permissibility of gifting an unknown object or something non-existent that is expected to come into existence; in general, anything whose sale is invalid in the Sacred Law because of uncertainty (gharar) may likewise not be gifted. Al-Shāfiʿī said: “Whatever may lawfully be sold may be lawfully gifted—such as a debt—and whatever may not lawfully be sold may not lawfully be gifted. Moreover, anything that, in the Shāfiʿī school, cannot validly be taken into one’s possession—such as a debt or a pledged article—cannot be the subject of a valid gift.”

All scholars agree that a gift requires an offer and an acceptance, and that the beneficiary must be someone capable of valid acceptance and possession.

The best-known condition attached to a gift is possession—that is, the scholars differed over whether taking possession is a condition for the validity of the contract. Al-Thawrī, al-Shāfiʿī, and Abū Ḥanīfah agree that possession is required for the validity of a gift, and that if possession is not taken the donor is not bound.

Mālik, however, holds that the contract is concluded by mere acceptance, after which the beneficiary is compelled to take possession just as in a sale. If the beneficiary delays taking possession until the donor becomes insolvent or falls ill, the gift is annulled. When the donor sells the item, the ruling is nuanced: if the beneficiary knew of the sale and procrastinated, he is entitled only to the price; but if he acts immediately, he is entitled to the gifted property itself.

Thus, for Mālik, possession in a gift is a condition for completion, not for validity, whereas for al-Shāfiʿī and Abū Ḥanīfah it is a condition for validity. Aḥmad and Abū Thawr hold that the gift is valid by the mere exchange of the contract; possession is not a condition at all—neither for completion nor for validity—and this is also the view of the Ẓāhirīs. A second report from Aḥmad ibn Ḥanbal, however, stipulates possession in the case of items measured or weighed.

Those who do not stipulate possession liken a gift to a sale, arguing that the default in contracts is that no possession is required for validity unless decisive evidence establishes the requirement. Those who insist on possession cite the narration from Abū Bakr—Allah be pleased with him—about his gift to ʿĀʾishah mentioned earlier, which is an explicit proof that possession is required for a valid gift.

They also rely on what Mālik transmitted from ʿUmar, who said: “What is the matter with men who bestow gifts upon their sons and then keep them in their hands? If one of their sons dies they say, ‘The property is still in my hand; I have not given it to anyone.’ Yet if the father dies he claims, ‘It belongs to my son; I had already given it to him.’ Whoever grants a donation but the recipient does not cause it to pass into his possession and the donor keeps it until, if he dies, it returns to his heirs, that gift is void.” ʿAlī held the same view. They add that this represents a consensus of the Companions, for no disagreement from them has been reported.

Mālik, for his part, relied on both considerations—analogy and what is transmitted from the Companions—and sought to reconcile the two.