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Al-Mughni by Ibn Qudama - Edited by Al-Turki
Volume 8 · Page 475

Translation · EN

O Messenger of Allah: Which charity is best? [He said: "That you give charity while you are healthy and keen"] (7). Fourth, that it competes with bequests for the one-third. Fifth, that its exclusion from the one-third is reckoned at the time of death, not before it or after it. It differs from a bequest in six matters: First, that it is binding upon the giver; he has no right to retract it, even if it is substantial, because the prohibition [against exceeding the one-third] (8) was only for the sake of the heirs, not for his own sake. Thus, he does not have the right to authorize it or reject it. However, he does have the right to retract a bequest because the donation therein is conditional upon death (9); therefore, before death, neither the donation nor the gift existed, unlike a gift during illness, for the gift from him, the acceptance by the recipient, and the possession have all taken place; thus, it became binding, just like a bequest if it is accepted after death and taken into possession. Second, that its acceptance must be immediate during the life of the giver, as is its rejection, whereas bequests have no ruling regarding acceptance or rejection until after death. This is because, as we have mentioned, a gift is a disposition in the present, so its conditions are reckoned at the time of its existence, while a bequest is a donation after death, so its conditions are reckoned after death. Third, that a gift requires the conditions stipulated for it during good health, such as knowledge, and that it is not valid if suspended upon a condition or involving gharar (uncertainty) except in the case of manumission, whereas a bequest is the opposite. Fourth, that it is given priority over a bequest, and this is the opinion of al-Shafi'i and the majority of scholars. Abu Hanifah also held this opinion,

Notes

the healthy and stingy, from the Book of Zakat. Sahih Muslim 2/716. It was also reported by Abu Dawud in: the chapter on what has been said regarding the dislike of causing harm in bequests, from the Book of Bequests. Sunan Abi Dawud 2/102. Al-Nasa'i in: the chapter on which charity is best, from the Book of Zakat. Al-Mujtaba 5/51. Ibn Majah in: the chapter on the prohibition of hoarding during life and squandering at death, from the Book of Bequests. Sunan Ibn Majah 2/903. And Imam Ahmad in: Al-Musnad 2/231, 250, 415, 447. (7) Omitted from [manuscript] M. (8) In [manuscript] M: "against the increase from the one-third". (9) The phrase "he does not have the right to authorize it or reject it, however he does have the right to retract a bequest because the donation is conditional upon death" is repeated in [manuscript] M. (10) Omitted from the original [manuscript] and [manuscript] A.

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