Question:
What is the ruling in the following scenario:
Zayd tells ‘Amr: “In this certain shop on Saturdays, I sell fresh cakes. If you want, you can take one cake and I will not charge. If you do not take anything, I will still not take the money from the shopkeeper as I will consider it as though you had taken it. If you don’t take, the money will be considered to be given in Sadaqah even though it will be in the possession of the shopkeeper.” If it so happens now that ‘Amr didn’t take any cakes on a particular week,
1. Will it be permissible for him to take two cakes instead of his standard amount of one the next week to cover up what he did not take the previous week?
2. Will he be allowed to take something else from the shop besides the cakes if he did not take the previous week? He will take an item only to the value of the cake he was allowed to take for free?
For example, if the cake value is R10. Someone else bought “his share” the previous week, so will the R10 be considered to be his, which is now in the possession of the shopkeeper, thus allowing him to take another item in replacement of his share of the cake, or once the Niyyah of Sadaqah is made, that money cannot be retrieved, thus not allowing him to take something else in its place?
Answer:
In the queried scenario, Zaid made it permissible for Amr to take one cake every Saturday. The shopkeeper has been appointed as Zaid’s Wakeel to hand over the cake to Amr. If Amr goes to the shop and takes the cake then he will become the owner of the cake, and if he doesn’t go to the shop then the opportunity will be considered to be lost.
مادة 836 الاباحة هي عبارة عن إعطاء الرخصة والإذن و لشخص أن يأكل أو يتناول شيئا بلا عوض (المجلة ص161)
أسباب التملك ثلاثة الأول الناقل من مالك إلى مالك آخر كالبيع والهبة (المجلة ص240)
The money in the shopkeeper’s possession (from the proceeds of the cakes) will belong to Zaid. Zaid is at liberty to either give it to the shopkeeper as Sadqah or keep the money for himself (as long as he hasn’t instructed the shopkeeper to take the funds as Sadaqah when Amr didn’t take his cake for the week and he accepted the offer).
Now coming to your questions, if Amr didn’t take his cake in a particular week, he will not be allowed to take two cakes the following week; neither will he be permitted to take an item from the shopkeeper equivalent to the value of the cake in the subsequent week.