Hibah is a practice that is highly encouraged in Islam. It is the act of disposing of or giving property or assets to whoever is desired during the lifetime of the donor without any compensation.
It is the act of giving away or transferring of ownership of an asset without consideration during the lifetime of the donor voluntarily.
Hibah is different from ‘ariyah (lending the benefit or usufruct) because in ‘ariyah, the owner of the asset retains the ownership of it but allows the recipient to enjoy and derive benefit or usufruct from the asset. Hibah on the other hand is different from wasiat (will) because in wasiat, the transfer of ownership of the asset occurs after the death the donor. Hibah is different from bay’ (buying and selling) because hibah does not require consideration for the transfer of ownership of the asset given by the donor to the donee.
Hibah is a gift during life and is effective after ijab and qabul and is accompanied by the delivery (qabd) of the gifted item. For immovable property such as land or houses, the execution of hibah must be completed by transferring ownership in accordance with the provisions under the National Land Code.
Issues related to Hibah in Malaysia
There are three issues related to the transfer of property through hibah, namely:
- the issue of revocable hibah from parents to children;
- the position of acceptance (qabd) in hibah; and
- the granting of conditional hibah (hibah mu’alaqqah).
1.Hibah from parents to children
The jurists agree that giving more to some children with the consent of the other children is permissible. However, the jurists disagree on giving more to some children without the consent of the other children.
The Perlis State Mufti Department ruled that it is haram to give more to some children without the consent of the other children (e-fatwa, 2015).
This fatwa is in line with the opinion of the Hanbali jurists. Giving more to some children than to others will lead to hostility and severance of ties and disobedience to parents and should be avoided as per the principle of sadd ad-dhara’i (prevention of harm), which is to avoid or prevent harm from occurring.
Hanafi, Syafie and Maliki jurists opined that it is makruh to give more to some children, however if there is a justified reason then it is harus or permissible.
2.The position of acceptance (Qabd) in hibah
Qabd can be defined as the action of the hibah recipient to accept the delivery, hold, and/control over the asset received from the donor and make the item his property.
The majority of Hanafi, Syafie and Hanbali jurists are of the opinion that qabd is a condition for enforcing the hibah contract. Therefore, if a hibah consists only an ijab (offer) and qabul (acceptance) from the hibah donor and the recipient of the hibah, such hibah is not valid and becomes unenforceable.
Why qabd is required? This is because of the fact that if the hibah property (mawhub) remains owned by the hibah donor and he is free to transact business with the item, such hibah may be revoked before the qabd is completed. This opinion is based on a narration which states that Abu Bakr RA had gifted part of his property to his daughter Aisyah RA. However, according to the narration, Abu Bakr RA, while dying, told Aisha RA that the property needed to be distributed to other heirs according to the law of faraid on the grounds that Aisha RA had never received and possessed (qabd) the property.
3.Conditional hibah ( Hibah mu’alaqqah).
The main principle of hibah is a gift that is made voluntarily without placing any conditions on it. Hibah Mu’laqqah refers to a kind of hibah with an attached condition. Among the types of conditional hibah that trigger issues are hibah umra and hibah ruqba .
(i) Hibah umra
A temporary gift referring to the life of either the donor or the recipient of the hibah. If the recipient of the hibah dies, the hibah property shall be returned to the hibah donor. Conversely, if the hibah donor dies, hibah property shall be returned to the next-of-kin of the hibah donor.
(ii) Hibah ruqba
It is a conditional gift determined by the hibah donor whereby the hibah property will be owned by the hibah recipient in case the hibah donor dies. But if the hibah recipient dies before the hibah donor, the hibah shall be returned to the hibah donor.
A minority of Muslim jurists believe that hibah with the condition of ‘umra and ruqba is void. Such a hibah contract is invalid based on the principle that a hibah contract cannot be accompanied by a condition that can negate the muqtada (the intended purpose) of the hibah itself.
The majority of jurists, namely Hanafiyyah, Syafi’iyyah and Hanabilah, believe that hibah is valid based on nas (quranic and hadith texts) even though, at the outset hibah contract is considered void for non-fulfillment of the requirements of the hibah contract itself.
Therefore, umra and ruqba are a perfect gift (physical and beneficial) to the recipient of the hibah and not just a benefit. Although in principle, hibah contract with the condition of umra and ruqba is valid, but the status of the condition is still debatable and dependent on the provisions of state enactments.
4.Hibah in a state of death (maradhul maut)
The law of hibah is different when it is made in a state of death or terminal illness. Therefore, this death consists of two things, which is usually it brings destruction and the illness ends with death.
The position of hibah property at the time of death is subject to two types of law, namely the law of wills (wasiat) and the law of hibah.
Therefore, if the hibah donor is in a state of death, then it is subject to the law of wills (wasiat), namely the hibah must not exceed 1/3 of the total property of the hibah donor and if the hibah is made to the heirs, it requires the consent of the rightful heirs. However, if the hibah donor is safe and alive, then the law of hibah will be effective on the property given.
