Part 14

However, Imam Ahmad, as well as Abu Hanifah, and others are not as strict as Imam Al-Shafi'i as regards making an undefined thing the subject of a settlement contract or absolution of it, should a person had already taken upon himself to give such undefined thing as a grant.

The Shafi'i necessitates that the subject of all contracts should be well defined, even in the case of Khul', dower, and the Jiziah. Most of scholars resort to a rather elastic approach regarding this respect. However, the preferred view is that of Imam Malik.

This question is related to another argument also, that is the exchange contracts, such as sale and marriage, which are binding, even before receiving the return. Receiving the return, which is the cause of the contract, is nota condition for making the contract binding.

Donations are like gifts and borrowed items.

Imam Abu Hanifah and Imam Al-Shafi'i viewed that the contract is not binding unless the return is received. As for Imam Malik, he was of the opinion that the contract becomes binding upon its conclusion.

Two narrations were related concerning Imam Ahmad's opinion of this. There is a disagreement in his school over this issue, similar to that raised in the case of a defined grant, whether the contract is binding upon its conclusion, or it is necessary to receive the return. Likewise, similar difference occurred concerning some instances of the borrowed items.

The Salaf Salih [the Righteous Ancestors] kept on lending the fruits of trees which were not ripe yet, offering the milk which was not milked yet and deemed that necessary.

Thus this kind of gift resembles the borrowed items, as the intent of the contract is to attain benefit. Therefore, this is the right of the person donated to, just like usufructs. It is valid to deal with a part of this contract such as the case with Musagah.

As_ for the validity of such contract, it is unanimously agreed upon by scholars, whether it is existent or nonexistent, defined or undefined.

But a grant will not be considered a binding contract by those who deem the lending as a binding contract, such as Imam Abu Hanifah and Imam Al-Shafi'i. As for Imam Malik, he held that such contract is binding if it happens to include a condition or a prevailing custom. Imam Ahmad's opinion is marked by much disagreements and more elaboration.

A Woman Giving a Book to Her Husband as a Gift

Q: Can the brothers of a woman whose father is dead prevent her from giving a book to her husband as a gift?

A: Her brothers do not have a legal claim over her. If she is eligible to dispose of her property, her gift is valid, no matter her brothers consented or not.

Privileging one of her children from a different husband with a charity

Q: Is it permissible to a woman to privilege one of her children with a piece of land asa charity from her own possessions to the exclusion of the rest of her children, knowing that the stated mother died in the place that she gave to her child as a charity?

A: If the gift is not received until the death of the mother, it turns null and void. If received before that, it should be distributed among all her children.

The charity of a grandmother

Q: A woman, being of sound health and mind, gave a portion as a charity to her son out of her possessions that could be divided among the rest of the heirs. Ten years later she died. The son, in his turn, gave all that he received from his mother as a charity to his son (i.e. the grandchild of the first donor). The event of charity was legally proved in the court. Do the rest of the heirs have the right to initiate a legal action in order to invalidate such charity?

A: If the item of charity remains in the possession of the donor until he/she dies, the charity turns void according to the famous opinions of the scholars. Confirming such contract of charity in a court, however, cannot turn it valid.

If the donor delivers the charity before his death, it will be valid, provided that he gives equal portions to the rest of the heirs. Otherwise, the charity should be returned back to him. This is confirmed by the hadith narrated in the Two Sahihs by Al-Nu’man bin Bashir, who said: “My father decided to give me a slave boy as a gift. My mother, ‘Umrah bint Rawahah said: I will not approve such gift unless after the Prophet (peace be upon him) witnesses it. The father then went to the Messenger of Allah (peace be upon him) and told him the story.

The Prophet (peace be upon him) said: Do you have other children? The father replied: Yes. The Prophet (peace be upon him) asked: Have you given similar gifts to them?

The father replied: No. The Prophet (peace be upon him) said: Then go and seek another witness.” In another narration, the Prophet (peace be upon him) said: “Do not expect that I will witness this. ] do not witness unfairness. Fear Allah and be just towards your children!”

The distribution of the estate

Q: A man assigned three quarters of his accommodation to his full-son as a charity, and the remaining quarter to his full-sister, Then, as the son died, the father assigned the whole accommodation to his daughter as a charity. What is the judgment of the first and the second charity?

A: If the charity of one-quarter is delivered to his fullsister, this charity then becomes the possession of her heirs after her death, not the daughter’s. Thus, the donor is not entitled to transfer the property to his daughter.

A father seizing the possession of his married daughter after her death

Q: A married woman, who was of the age of majority, died leaving behind a father, mother and a husband. Her father then seized all her possessions that were found in her husband’s house and did not give anything of it to other legal heirs. What is the judgment of this case?

A: The act of the father is not lawful. All the possessions of the deceased daughter are the right of all the legal heirs, despite the fact the such possessions were first purchased by the father. Thus, he cannot retain such possessions after her daughter’s death.

Returning in a gift

Q: What is the judgment of giving a gift, then returning in it?

A: It was narrated after the Prophet (peace be upon him) that he said: “A donor cannot return in his donation except in the case of a father who gives a gift to his child.” This is the opinion of Al-Shafi’i, Malik, Ahmad, and others. However, ifa gift is given in return for a similar gift, or in order to fulfil an interest, then the receiver of the gift will be obliged to return it back in value or in similar property, should he cannot compensate for it.

A divorcee returning in her gift

Q: A man divorced his wife, then asked her for reconciliation. Thus her reconciled her and gave her two dinars and asked her to given him one dinar as a gift. He then divorced her. Can the divorcee return in her gift?

A: Yes, she can. In such case the gift is not given willingly as the husband divorced her afterwards. ***

A man returning in his gift which he made to his wife after her death

Q: A man made a grant of 1000 dirhams to his wife and made a document to this effect, but did not pay her in cash. The wife then died and the heirs demanded him to pay the grant. Can the husband return in his gift in such case?

A: If the man mentioned above owed no sum to the deceased wife, neither equal to this sum or what this sum can be a compensation for it, such as the case when the husband takes anything of her possessions and promises to give her this sum in return, in this case the heirs are not entitled to the gift.

Remitting a husband from the dower at the wife’s death

Q: A married woman brought a just male witness and a group of women and testified that she absolves her husband from the dower he owes her. Is this absolution valid?

A: If the dower is confirmed until the death illness of the wife, absolution of it is not valid, except after the consent of the remaining heirs. If the absolution of the dower was made while she was quire healthy, it is then valid. The confirmation of the absolution of the dower while the wife is healthy is to be made by a witness and an oath on the part of the husband, according to the opinion of the Hanbali Juristic School. If the wife acknowledges in her illness that she absolved her husband of the dower when she was sound health, such acknowledgment will not be regarded as valid, according to Imam Abu Hanifah, Ahmad and others. Al-Shafi’i, however, regarded it as valid. The Prophet (peace be upon him) said: “Allah has assigned a portion of inheritance for each heir entitled to it. Thus, a legal heir is not entitled to a bequest.” An ill person should not give an heir more than what he is entitled to.

A gift given to the wife and children

Q: A woman, whose husband paid her all her dues in his lifetime, and who.has children from him, was given a sum of money by her husband in return for her dower in order to spend it for the benefit of herself and her children. Ifa person claims that the husband owed him a sum of money equal to or more than that given to her, can she make an oath to avert injustice from her?

A: If the husband gives a gift to one of her children and the child received it, and this gift resulted in no injustice to

anyone, such gift will be considered valid. No one is entitled to seize it from her. If the husband appointed his wife as a guardian of his children’s share of inheritance whether he is alive or dead, while the wife is eligible to such guardianship, no one has the right to seize this from her. If she is going to take an oath, she should say that she owes nothing to the deceased.

A father returning in his gift to his bad son

Q: A man gave a charity to his son and made this charity in the dower of his son’s wife. Later on, the father became too feeble to earn living, and his son deserted him. Can this father return in his gift?