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The Islāmic Law of Gifts, A Concise Overview

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:

  1. Hiba (هبة): A simple gift, a voluntary transfer of property without consideration from one person to another.
  2. Sadaqah (صدقة): A gift made with a religious motive to acquire merit in the eyes of God.
  3. Hiba-bil-iwaz (هبة بالعوض): A gift for consideration, resembling a sale.
  4. Hiba-ba-shart-ul-iwaz (هبة بشرط العوض): A gift made with a stipulation for a return.
  5. Ariyat (عارية): A temporary transfer of usufruct rights, similar to a license. 
  6. Hiba-bil-musha (هبة المشاع): A gift of an undivided share in property. 
  7. Hiba al-umra (هبة العمرى): The donor gives the property to the recipient for the recipient's lifetime. 
  8. 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