The Undefined Gift

Q: Is it permissible to assign an undefined thing as a gift, such as the case when a person offers the next year's fruits of a tree to a person as a gift? Can the former return in his gift?

A: The scholars differed over the undefined gift. Imam Malik claimed that it is permissible. He even made it permissible that one may grant something that he will inherit later on to another, without knowing its amount. He further claimed that it is permissible that one grants a portion of a house to another without telling him the area of such portion. According to Imam Malik, it is also permissible to grant something not found yet at the time of giving the grant, such as granting fruits that will grow later on at the current year or during the coming ten years.

Al-Shafi'i, on the other hand, did not approve of this, nor did Abu Hanifah and Ahmad, according to the famous opinions of their schools.

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 not a 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 Musaqah.

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.