2406. A gratuitous loan is a non-binding contract, and therefore the lender and the one acquiring the loan may cancel the loan at any time they wish to do so. Hence, the lender may reclaim that loaned property, except in the case of a land which was loaned out for the purpose of burying a dead body. In this case, once a body has been buried there, he is not permitted to reclaim the land by exhuming the grave.
2407. Loaning out an item which serves no legally permissible use, such as the instruments of vanity and gambling, is not valid. The same applies to loaning out gold or silver dishes for the purpose of consuming food or drinks from them. In fact, based on obligatory precaution the same applies to the rest of its uses, even if it be for decorative purposes.
2408. Loaning a sheep for the use of its milk or wool, or loaning a male animal to impregnate a female animal, is valid.
2409. If a person returns the loaned item to its owner, or the deputy or guardian of the owner, and then the item perishes, the one who acquired the loan will not be responsible for it. However, if he transfers the property to another location without the permission of its owner, or the deputy or guardian of the owner, he will be responsible for it, even if the owner would usually take the loaned item to that location, such as tying a horse in a stable where the owner would usually hold it. In the event that it perishes, he will have to replace it.
2410. If a person loans out an impure (najis) item for a use in which its §ah¡rah is a condition, such as loaning out a najis dish for the purpose of consuming food from it, he must inform the loaner of it being najis. However, if he lends out a najis garment for the purpose of offering prayers in it, he does not have to inform the loaner of it being najis, unless the loaner wishes to offer his prayer in a genuinely §¡hir garment. In this case, the obligatory precaution is that he should inform the loaner of it being najis.
2411. A person may not loan or rent out a loaned item without the consent of its owner.
2412. If a person loans out a loaned item with the consent of its owner, then if the original loaner passes away or turns insane, the second act of loaning will not be invalidated.
2413. If a person knows that the loaned item is usurped, he must return it to its owner, and he may not return it to the lender.
2414. If a person accepts the loan of a property that he knows to be usurped, and makes use of it, and it perishes in his possession, the owner may demand restitution for the item and its use from the one who accepted the loan, or from the usurper. If the owner acquires it from the one who accepted the loan, the latter may not demand any compensation from the lender.
2415. If the person who accepts the loan does not know that the property is usurped, and it perishes in his possession, then if the owner acquires its restitution from him, he too may demand compensation from the lender. However, if the loaned item is gold or silver, or if the lender stipulates that in the event that the item perishes, the one accepting the loan will replace it, then the latter may not demand any compensation from the lender for the restitution that he pays to the owner.
Gifting is the act of transferring the ownership of a property (itself) for free, meaning that no payment in acquired in return for the property. The item gifted must be the property itself—even if it be as an abstractly defined fraction of it—and not its usufruct. It may also be corporeal, or be abstractly owed in the event that it is gifted to someone other than the one who owes it. If however it is gifted to the one who owes the property (itself), he will be freed from the debt, and the one who gifts it will not be able to reclaim it.
2416. In the act of gifting, an offer and an acceptance is consequential, be it verbal, such as stating, “I have gifted this book to you,” and in return the person who has been gifted with the book, states, “I have accepted,” or be it by the act itself, such as the act of giving the book to another party with the intention of gifting it, and the other party also takes it with the intention of accepting it.
2417. The conditions that the giver be sane, b¡ligh and intending (the act of gifting), are consequential. The giver should also not be compelled to the act of gifting, and should not be interdicted from disposing of his property owing to feeble-mindedness or bankruptcy. He should also be the owner of the property that he is gifting, or have authority over it. Otherwise, the act of gifting will be uncommissioned, and its validity will be contingent on the permission of a person whose permission is consequential.
2418. In the act of gifting, taking possession of the property is consequential. Therefore, if a person gifts a property to another, the act of gifting will not be realized until he places it in his possession. The recipient should also take possession of the property with the permission of the giver. However, if the gifted item is in the possession of the recipient, it will suffice.
The condition of granting possession in non-transportable items, such as land and houses, is realized by the act of removing any obstructions from its use, and placing it in the possession of the recipient. In transportable items, it is realized by giving it to the other party, and the latter accepting it from him.
2419. If a property is gifted to a person who is not b¡ligh or is insane, the acceptance of their guardians, and their (the guardians) acquiring possession over it, is consequential.
If the guardian gifts it to them, but it continues to remain in his possession, the presence of the property in the possession of the guardian will suffice in lieu of granting possession.
2420. If a person gifts a property to one of his own relatives, upon granting him possession of it, he cannot return to him and seek to reclaim it. The same will apply in the event that the giver makes a condition on the recipient, and the condition is fulfilled, or the recipient gives something to the giver in return for the gift.
In cases other than the ones listed above, as long as the gifted property itself remains, the giver may reclaim the gifted property. However, if it has perished, or has been transferred to someone else, or a transformation has occurred in the property itself—for example, if the gift was a piece of cloth, and the recipient dyes it—he cannot reclaim it.
2421. A husband and wife are not subject to the rulings of relatives with respect to the binding nature of gifts.
2422. If a person gifts a property to someone, and simultaneously stipulates that the recipient give him something, or perform a task—which is legal—for him, then the person who is subject to fulfill the condition, must fulfill it. The giver may also reclaim the gift before the condition is fulfilled. Similarly if the person who is subject to fulfill the condition fails to do so, or is unable to fulfill it, the giver may reclaim the gift.
2423. If the giver or the recipient of the gift passes away prior to the acquisition of the gift, the act of gifting will be invalidated.
2424. If the giver of the gift passes away after its acquisition, his heirs may not reclaim the gift. Similarly, if the recipient passes away, the giver cannot reclaim it.
2425. Just as the gift may be reclaimed by a verbal utterance—for example the giver may state, “I withdraw my offer to gift you,”—it may also be reclaimed by an act, such as acquiring possession of it from the recipient with the intention of reclaiming it, or placing it at the disposal of a third party with the intention of reclaiming the gift. For a reclamation to be realized, the knowledge of the recipient is not consequential.
2426. If the gifted property generates a detached or a detachable increase in the property of the recipient, such as a sheep giving birth to a lamb, or a tree bearing fruits, it will belong to the recipient. If the giver reclaims gifts such as sheep or trees, he cannot take back the lamb or the fruits from the recipient.
By means of a marriage contract, a man and woman become legal for each other. Such contracts are of two types: temporary and permanent.
A permanent contract is one wherein no specific period is stipulated for the marriage. A woman who is married in such a contract is known as a d¡’imah (permanent wife).
A temporary contract is one wherein a specific period is stipulated for the marriage, such as forming a contract with a woman for a period of one hour, one day, one month, one year or more. The obligatory precaution is that the period of such a marriage should not exceed the lifespan of the husband and wife, or one of them. A woman who is married in such a contract is known as a mut‘ah (temporary wife).
2427. In a marriage, be it temporary or permanent, a formal expression must be pronounced. The mere consent of the man and the woman will not suffice. The formal expression may be pronounced by the man and the woman themselves, or they may deputize a third party to pronounce it on their behalf.
2428. The deputy does not have to be a man. A woman may also be a deputy on behalf of a party to pronounce the formal expression of the marriage.
2249. As long as the man and woman are not certain or confident that their deputy has pronounced the formal expression, they may not sanction the consequences and precepts of the marriage. Merely speculating that the deputy has pronounced the formal expression will not suffice. If the deputy states that he has pronounced it, then in the event that he is trustworthy and one does not entertain a doubt that is contrary to his claims, it will suffice. The same applies if one acquires confidence in his statement. In other than the two aforementioned cases, it is problematic to rely solely on the statement of the deputy.
2430. If a woman deputizes someone to marry her to a man for ten days, but does not specify a start date for the ten day period, the deputy can marry her to the man for ten days commencing from whenever he wishes. However if it is known that the woman has intended a particular date or time, the deputy must pronounce the formal expression according to her intention.
2431. A (single) person may be deputized on behalf of both parties to pronounce the formal expression of the marriage contract, be it a temporary one or a permanent one. In fact, a man may be deputized by a woman to marry her to himself, both in a temporary marriage or a permanent one.
The recommended precaution however is that the formal expression should be pronounced by two individuals, especially in the event that a person is deputized to marry someone to himself.
2432. If the man and the woman pronounce the formal expressions themselves, and the woman commences by saying:
زَوَّجْتُكَ نَفْسِي عَلىَ الصِّداقِ الْمَعْلُومِ
I wed myself to thee on the known mahr
and thereafter, without disturbing the consecutiveness of the offer and the acceptance in the common sense, the man responds by stating:
قَبِلْتُ التَزْوِيْجَ عَلىَ الصِّداقِ المَعْلُوْمِ
I have accepted the marriage on the known mahr
or simply states:
قَبِلْتُ التَّزْوِيْجَ
I have accepted the marriage
and intends to accept the same marriage according to the known mahr, the contract will be valid.
If they deputize someone else to pronounce the formal expressions on their behalf, and if—for example—the name of the man is Ahmad and the name of woman is Fatimah, then if the woman’s deputy states:
زَوَّجْتُ مُوَكِّلَتِي فاطِمَةَ مُوَكِّلَكَ أَحْمَدَ عَلىَ الصَّداقِ الْمَعْلُومِ
and thereafter, without disturbing the consecutiveness in the common sense, the deputy of the man states:
قَبِلْتُ التَزْوِيْجَ لِمُوَكِّلِي أَحْمَدَ عَلَى الصِّداقِ المَعْلُومِ
the marriage will be in order. It is better for the woman’s deputy to state:
زَوَّجْتُ مُوَكِّلَكَ أَحْمَدَ مُوَكِّلَتِي فاطِمَةَ عَلَى الصِّداقِ المَعْلُومِ
The recommended precaution is that the words pronounced by the man should be consistent with the words pronounced by the woman. For example, if the woman employs the term زَوَّجْتُ, the man should respond with قَبِلْتُ التَزْوِيْجَ, even though there is no objection to saying قَبِلْتُ النِّكاحَ.
Instructions for Pronouncing a Temporary Marriage
2433. If the man and woman themselves wish to pronounce the formal expression of a temporary marriage, then having specified the period and the mahr, if the woman states:
زَوَّجْتُكَ نَفْسِي فِي الْمُدَّةِ الْمَعْلُومَةِ عَلَى الْمَهْرِ الْمَعْلُومِ
and thereafter, without disturbing the consecutiveness in the common sense, the man responds by saying قَبِلْتُ هكَذا, the marriage will be in order.
If however, they deputize another person, and the woman’s deputy commences by addressing the man’s deputy, stating:
زَوَّجْتُ مُوَكِّلَتِي مُوَكِّلَكَ فِي المُدَّةِ المَعْلُومَةِ عَلَى المَهْرِ المَعْلُومِ
and thereafter, without disturbing the consecutiveness in the common sense, the man’s deputy states, قَبِلْتُ لِمُوَكِّلِي هَكَذا, the marriage will be in order.
