al-Shāfiʿī. This is clear to anyone with even a slight acquaintance with Islamic jurisprudence, provided he understands the jurists’ reasoning. But someone who fails to distinguish between these matters, and imagines that the rulings they mention concerning the donated property apply both to it and to the other share, shows a profound lack of discernment in legal rulings and questions of jurisprudence. This issue admits of no dispute or disagreement whatsoever.

It is astonishing that they seek a transmitted ruling on this issue in the “Book of Gifts and Charity” and similar sections. That is not where it belongs; rather, it belongs in the “Book of Co-ownership and Partition” and similar sections. The question concerns dealings with the remaining share, not with the donated share.

If someone imagines that their tacit acquiescence establishes each party’s possession of the whole, the answer is: in that case, each co-owner would possess the entirety of the jointly owned property. If this argument were sound, a co-owner’s possession could never be valid under any circumstances. Abū Hanīfah stated this only concerning property capable of division.

Moreover, even supposing that a co-owner’s possession extends to the whole, this does not preclude the taking of possession required for an undivided share. When someone gives away a share in a particular property, he need only deliver possession of what he has given, while retaining possession of what he has not given. This holds whether his continued possession of his own share is said to extend to the whole or not. Thus, by the consensus of the Muslims, the donor’s control over his own share and his dealings with it neither prevent possession from being taken initially nor invalidate its continuation.

He was asked:

“Someone gave away a quarter of a property, but it turned out to be less than that. Is the gift invalid?”

He answered:

“It is not invalid.”