بِسۡمِ اللهِ الرَّحۡمٰنِ الرَّحِيۡمِ
Introduction
The Islamic law of gifts, known as hibāt (hiba), is a complex system that governs the transfer of property and wealth during a person's lifetime. This article provides a concise overview of the key aspects of Islamic law regarding wills and gifts.
Types of Hiba
In Islamic law there are several types of hiba:
- Hiba (هبة): A simple gift, a voluntary transfer of property without consideration from one person to another.
- Sadaqah (صدقة): A gift made with a religious motive to acquire merit in the eyes of God.
- Hiba-bil-iwaz (هبة بالعوض): A gift for consideration, resembling a sale.
- Hiba-ba-shart-ul-iwaz (هبة بشرط العوض): A gift made with a stipulation for a return.
- Ariyat (عارية): A temporary transfer of usufruct rights, similar to a license.
- Hiba-bil-musha (هبة المشاع): A gift of an undivided share in property.
- Hiba al-umra (هبة العمرى): The donor gives the property to the recipient for the recipient's lifetime.
- Hiba al-ruqba (هبة الرقبى): The ownership transfer is contingent on who survives the other (donor or recipient).
Forms of Gift
Several forms of hiba exist, including:
- Direct hiba
- Trust hiba
- Provisional Hibah (hiba al-ruqba)
- Temporal Hibah (hiba al-'umra)
- Unrestricted hiba
Essential Elements of a Valid Hiba
For a hiba to be valid, it must include:
1. Parties to the gift (donor and donee)
2. Subject of the gift
3. Extent of the donor's right to gift
4. Formalities and mode of gift
Key Requirements for a Valid Hiba
- Donor (wāhib): Must be a Muslim, of sound mind, and the sole owner of the gifted property
- Donee (mauhūb lahū): Must be in existence at the time of the gift
- Subject Matter (mauhūb): Must be in existence and valuable
- Declaration (ījāb): Clear expression of the donor's intention
- Acceptance (qubūl): By or on behalf of the donee
- Possession (qabzah): Transfer of possession to the donee
Valid and Invalid Gifts in Islamic Law: Key Formalities and Conditions
I. Essential Formalities for Gift Validity
A. Declaration by Donor
• Must be clear and unambiguous
• Can be oral or written
• May use the term "tamlik" (ownership)
• Can be made by donor or their agent
B. Acceptance by Donee
• Can be express or implied
• Exceptions to acceptance requirement:
1. Gifts from guardian to ward
2. Gifts of debt to debtor
C. Delivery of Possession
• Crucial for gift validity, with few exceptions
• Absence of possession renders gift void ab initio
• Types of delivery:
1. Actual or physical
2. Constructive or symbolic
• Donor must completely divest ownership and dominion
• Constructive delivery suffices if donee reaps benefit
II. Valid Gifts
• Gifts to minors, lunatics, and insane persons (with conditions)
• Gifts of usufruct
• Gifts of mortgaged property (with conditions)
III. Invalid Gifts
• Gifts by infants or insane persons
• Gifts of non-existing property
• Gifts intended to defraud creditors
• Gifts of undivided shares in joint property
Revocation of Hiba
• General Principle
- Revocation of gifts (hiba) is generally discouraged in Islamic law
- Permissible under specific circumstances
• Pre-Possession Revocation
- All gifts are revocable before delivery of possession
- Mere declaration by the donor suffices for revocation
• Post-Possession Revocation
- Delivery of possession completes the gift
- Two methods for revocation after possession:
1. Mutual consent of parties
2. Court decree
• Temporal Limitations
- Donor can revoke after possession transfer via aforementioned methods
- Revocation prohibited after donor's death
- Heirs cannot revoke the gift
- Revocation impossible after donee's death
• Property Rights During Revocation Process
- Donee retains use and profit of property until court decree
• Hanafi School Exceptions for Irrevocable Gifts
1. Marital Gifts
- Irrevocable during marriage, including irregular unions
- Contrasts with Shia law permitting spousal gift revocation
2. Consanguineous Relationships
- Irrevocable for relatives within prohibited degrees
- Revocable for non-blood relations
- Joint gifts to strangers and prohibited-degree relatives:
* Revocable for stranger's portion
* Irrevocable for relative's portion
3. Termination by Death
- Revocation right is personal
- Irrevocable upon death of donor or donee
- Heirs lack revocation rights
4. Debt Forgiveness
- Gift of debt to debtor, discharging liability, is irrevocable
5. Value Appreciation
- Significant increase in gift value renders it irrevocable
6. Transformation of Gift
- Loss of original identity makes gift irrevocable
- Example: Gifted wheat converted to flour
7. Consideration Received
- Receipt of consideration (iwaz) by donor makes gift irrevocable
- Includes hiba-bil-iwaz and hiba-ba-sharat-ul-iwaz categories
8. Religious Endowments:
- Gifts as sadaqa for religious/spiritual merit are irrevocable
• General Rule
- Gifts may be revoked after possession delivery in circumstances not covered by exceptions
- Revocation possible through mutual consent or court decree
Impediments to revocation
- Death of either party after delivery of possession
- Loss of ownership by the donee
- Substantial change in the gifted property's character
Effect of Gifts Made During Mard-ul-Maut (Death-Sickness)
• Limitations on Gift Extent
- Gifts made during mard-ul-maut are restricted to one-third of the donors net estate
- This limitation applies after deducting funeral expenses and debts
- Exceeding the one-third limit requires consent from heirs after the door's death
• Gifts to Heirs
- Gifts to legal heirs during mard-ul-maut are invalid without consent
- Other heirs must provide approval after the donor's death for such gifts to take effect
• Timing of Gift Effectuation
- Gifts made during mard-ul-maut only become effective upon the donor's death
- The gift does not take immediate effect at the time of declaration
• Validity Requirements
- Gifts during mard-ul-maut must fulfill all conditions of a simple gift
- Delivery of possession from donor to donee remains a crucial requirement
- All other standard conditions for gift validity apply
• Legal Status
- These gifts are considered a special category under Islamic law
- They combine elements of both inter vivos gifts and testamentary dispositions