From Mālik’s perspective, insofar as a gift is simply one contract among others, taking possession is not a condition for its validity. Yet because the Companions required possession in order to block the stratagem that ʿUmar pointed out, possession was deemed a condition for completion and a right that belongs to the beneficiary; should the latter delay until possession becomes impossible through the donor’s illness or insolvency, his right is extinguished.

The majority of jurists in the provincial centers hold that the father may take possession on behalf of his minor son who is under his guardianship, as well as for an adult son who is legally incompetent, with respect to what he himself has gifted them, just as he may do so for anything gifted to them by others. For such possession it suffices that he publicize the gift and summon witnesses—this applies to everything except gold and silver and to fungible items that cannot be individually specified.

Their textual foundation is the report Mālik transmitted from Ibn Shihāb, from Saʿīd ibn al-Musayyab, that ʿUthmān ibn ʿAffān said: “Whoever bestows a gift upon a minor son who has not yet reached the age to take possession, and then publicizes that fact and calls witnesses to it, that is valid possession, even though he continues to manage the property.”

Mālik and his companions added that real possession is indispensable in the case of inhabited dwellings and worn garments: if the gift is a house in which the donor lives, he must vacate it; likewise, if it is clothing, the gift is void should he wear it. Concerning the rest of movable goods they side with the other jurists, i.e., proclamation and testimony suffice.

With respect to gold and coined silver the reports from Mālik diverge. One states that the gift is not valid unless the father removes it from his own hand and places it in someone else’s hand; another allows it if he puts it in a pouch or vessel, seals it, and calls witnesses to the act.

Mālik’s followers unanimously agree that the executor appointed in a will stands in the place of the father in this regard.

They differed, however, about the mother. Ibn al-Qāsim—relaying Mālik’s view—said that she does not take the father’s place; other Mālikīs said that she does, and this is also the position of Abū Ḥanīfah. Al-Shāfiʿī held that the grandfather is equivalent to the father; Ibn Wahb reported that the maternal grandmother stands in the mother’s stead, and that the mother, according to him, stands in the father’s stead.

Discussion of the Kinds of Gifts

A gift may pertain either to the corpus of property or to its usufruct. A gift of the corpus is sometimes made with the expectation of recompense and sometimes without. Of the gifts made in expectation of recompense, some are offered seeking the Face of God, and others seeking the favor of a fellow human.

As for a gift not intended for recompense, there is no dispute over its permissibility; the disagreement concerns only its subsidiary rulings.

With respect to the gift made in expectation of recompense (hiba al-thawāb) the scholars differed: Mālik and Abū Ḥanīfah deemed it permissible, whereas al-Shāfiʿī, Dāwūd, and Abū Thawr forbade it.

The root of the disagreement is whether such a gift amounts to a sale with an unknown price. Those who view it as a sale with an unknown price say that it belongs to the category of sales tainted by uncertainty (gharar) and is therefore invalid, whereas those who do not see it as such a sale say: