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Al-Majallah al-Ahkam al-‘Adaliyyah
Book 7: Gift
Introduction
Terms of Islamic Jurisprudence Relating to Gift.
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A gift consists of bestowing the ownership of property upon some
other person without receiving anything in return. The person giving is
called the property bestowed by way of gift; and the person who receives
such property is called the recipient.
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A present is property brought or sent to someone by way of gratification.
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Alms consists of property given for some charitable object.
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Allowing another person to eat and drink without receiving anything in
exchange is called gratuitous feeding.
Chapter 1: Matters Relating to the Contract of Gift.
Section 1: Fundamental Basis and Receipt of a Gift.
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A contract of gift is concluded by offer and acceptance. Upon taking delivery
the contract becomes complete.
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Offer, as regards donation, consists of the employment of words importing
the gratuitous transfer of ownership in property, such as " I have given
for nothing": "I have given by way of gift": "I have given as a present".
An offer of a gift is also made by the use of expressions importing the
intention of transferring ownership in property gratuitously, as where
a husband hands a pair of earrings or some other jewel to his wife, telling
her to take such thing and wear it.
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A contract of gift may also be concluded by conduct.
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The dispatch and receipt of a gift and of alms are tantamount to verbal
offer and acceptance.
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Receipt in the case of gift is like acceptance in the case of sale. Consequently,
if the donor makes his offer by stating that he has given the given by
way of gift or by using some similar expression, and the recipient, without
signifying his acceptance, merely takes delivery of the thing given, at
the time it was offered, the gift thereupon becomes complete.
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The recipient may not take delivery of the thing given by way of if it,
unless he has received the permission, express or implied, of the donor.
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The donor, by his offer, is considered by implication to have authorised
the recipient to take delivery of the thing given. There is an express
authority, however, when the donor makes use of formal words, as when he
states that he has given something to someone and invites that person to
take it, in the event of the gift being present when the parties meet,
or that he has given something to someone and invites him to go and get
it, should the gift itself not be there when the parties meet.
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When the donor has given his express authority, the recipient may take
delivery of the property bestowed by way of gift either at the meeting
place of the parties, or after they have separated. If the authority is
merely implied, however, it is only valid so long as the parties are present
together. After they have separated, the recipient may not validly take
delivery of such property. Example: The donor states that he has bestowed
a certain by way of gift. The recipient may validly take delivery of the
thing given so long as the parties remain present together, but he may
not do so once they have separated. If the donor states that he has made
a gift of something belonging to him which is in a certain place, without
requesting the recipient to go and get it, the recipient may not validly
go to the place where such thing is and take delivery thereof.
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A purchaser may make a valid gift to a third party of a thing he has purchased,
even before having taken delivery thereof from the vendor.
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A gift made by the owner of a thing to a person who is already in possession
thereof is complete by reason of the mere acceptance of the recipient,
without the necessity of any further delivery.
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If a person to whom money is due makes a gift of such money to the person
from whom the money is due, or releases the debtor from payment thereof,
such gift or release is valid, and the debt is forthwith extinguished,
provided that the debtor does not decline to agree thereto.
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Should a person to whom money is due make a gift of the sum due to him
to some person other than the person who owes him such money, expressly
authorising the recipient to take payment from the latter, the gift is
complete as soon as the recipient has received payment.
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The death of the donor or the recipient before the transfer of the gift
makes such gift null and void.
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In the case of gift made by a father to a son who is of age, that is, who
is of sound mind and who has arrived at the age of puberty, the thing bestowed
by way of gift must be delivered by the donor, and delivery must be taken
thereof by the recipient.
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A gift made to a minor by his tutor or by the person in charge of his upbringing
and education, of such person's property is complete by reason only of
the offer of the donor, and the minor becomes absolute owner thereof without
any need for taking delivery, whether the thing given is in the possession
of the donor, or in the safe keeping of some third person.
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A gift made by a person to a child is complete when the tutor or person
in charge of the upbringing or education of the child takes delivery of
such gift.
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If the recipient is a minor who is of perfect understanding, the gift becomes
complete when the minor himself takes delivery thereof, even though he
has a tutor.
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A gift which is to take effect in the future is invalid. Example: A donor
states that he has made a gift of a certain thing with effect as from the
first of next month. The gift is invalid.
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The donor may validly demand some compensation in return for his gift.
In such a case the contract is valid and the condition binding upon the
recipient.
Examples: (1). The donor makes a condition that the recipient shall give
him some particular thing in return, or that he shall pay his debt amounting
to a certain sum. If the recipient fulfils the condition the gift becomes
irrevocable; if not, the donor has the right of revoking it.
(2). A person makes a gift of his real property held in absolute ownership
upon condition that the recipient shall make provision for his maintenance
for the whole of his life time. If such person changes his mind, he cannot
revoke his gift and claim the return of such property so long as the recipient
continues to comply with the condition.
Section 2: Conditions Attaching to a Gift.
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The thing bestowed by way of gift must be in existence at the time the
gift is made. Consequently, if a gift is made of grapes to be produced
in a vineyard, or the foal of amre not yet born, such gift is invalid.
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The thing bestowed by way of gift must be the property of the donor. Consequently,
if a person makes a gift to some other person of property which is not
his own, such gift is invalid. If the owner, however, thereafter ratifies
the gift, such gift is valid.
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The thing bestowed by way of gift must be clearly ascertained and defined.
Consequently, if the donor makes a gift of a certain portion of his property
without specifying which, or if he makes a gift of a horse by telling the
recipient that he may take whichever he likes of two horses, and the recipient
at the time the gift is made states which one of the two he selects, such
gift is valid. If the recipient selects the one he wants after the meeting
at which the gift has been made, however, such selection is invalid.
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The donor must be of sound mind and must have arrived at the age of puberty.
Consequently, a gift made by a minor, or a madman, or an imbecile is invalid.
A gift however, may validly be bestowed upon such person.
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The donor must assent to the gift. Consequently, a gift made as a result
of force or constraint in invalid.
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