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

Distributing Wealth as Gifts During One's Lifetime to One's Own Children

Islam allows a person to make gifts to one's own children. This is not inheritance in advance but gifts, and governed by the law of gifts. The distribution must be fair and just.
According to the majority opinion (including Hanafi and most scholars), it is recommended and some say obligatory to treat children equally when gifting during life with no preference for sons over daughters. 
A parent can give different gifts for genuine reasons (special needs, dependency etc.), but must have valid justification.
Some Muslim jurists opine that that justice in gift-giving is established by giving the male double the share of the female, as in inheritance shares. “The majority of jurists held that the meaning of equality among sons and daughters in gift-giving is to give them equal gifts without favoring some over the others, because the reported Ahaadeeth in this regard did not distinguish between male and female children. The opinion of the Hanbali scholars and the Hanafi scholar Imaam Muhammad ibn Hasan, which is also an outweighed opinion held by the Shaafi‘i scholars, is that the prescribed division among children in gift-giving is the same as that of the inheritance; i.e. the male gets double the share of the female, because Allah, The Exalted, divided the inheritance in this manner, and He is the best of Judges, and that this is the required justice among children in gift-giving.” (Al-Mawsoo‘ah Al-Fiqhiyyah)