Question : A question was asked regarding whether or not a Muslim should be permitted to retrieve a present from the person s/he wishes to give this present to.

Fatwa in Brief: This is illegal. It is prohibited on the basis of the hadith in which the person who reclaims his sadaqa is described as acting as if s/he has swallowed their own vomit.

The Permanent Committee, 16/172

Response:

According to the majority of the scholars, if a father gives all of his properties, or [merely] some of them, to his son as a gift (hiba) free of charge, he [the father] is still free to take back this gift at a later date. While Abu Hanifa disagrees with this, the opinion of the majority is stronger.

Commentary:

To take back one’s gift [from its recipient] is prohibited by the majority of scholars, unless the one reclaiming the present is a father from his son. Only in this instance can the present be taken back [without a sin being committed]. The most important of the hadith collectors [bar Muslim and al-Bukhari], al-Tirmidhi, Abu Dawud, al-Nisa’i and Ibn Majah, include a hadith attributed to Ibn ‘Abbas and Ibn ‘Umar. In this the Prophet (upon him be peace) remarks: “It is not permitted to give a gift, and to reclaim it, except when a father reclaims a gift from his son. The same logic also applies to the mother, and children of all ages.

This is the opinion of the majority. Malik argues that it is permitted to take back the present if it has remained in its original condition; however, if it has changed in any way [through wear and tear], it may not be reclaimed. In contrast, Abu Hanifa claims that it is never allowed to reclaim a gift, even when this gift is given by a parent to his/her child. In this view, however, it is allowed to reclaim a gift given to a stranger. On this matter, however, Abu Hanifa’s opinion is not strong, as it contradicts the meaning of the above mentioned hadith.

The [above mentioned] hadith, considered sound by al-Tirmidhi, is also relevant. Here, it is said that the “one who takes back a gift is like a dog that swallows its vomit”.According to the logic of Abu Hanifa one may buy a gift [from someone that you wish to give this gift to]. What is prohibited is reclaiming, rather than buying a gift.[1]

Dr. Anas Abu Shadi