In this article we will discuss the Hibah and the Muslim law rules which apply to it.
Hibah can be translated simply as ‘gift’.
If a Muslim wishes to give away something they own, or any amount of money, to someone else (a person or organisation such as a charity) then they may do so by immediately transferring the legal title and possession of the gift itself to the recipient of the gift (known as the ‘donee’).
The other way to make a gift is for the person making the gift (the ‘donor’) to execute a document known as a Deed of Gift, declaring the gift to the donee. In this scenario, however, the legal title and possession of the gift may not pass to the donee immediately.
Rules Which Apply to Hibah
- For a Hibah to be valid, clearly the donor has to have legal title to the subject of the gift, and must also have legal capacity to give that property away to the donee.
- A minor or person who lacks mental capacity cannot make a Hibah, and neither can someone who is under undue pressure, or is forced to do so.
- The offer of the gift to the donee must be clearly expressed in the Hibah, as well as an accurate description of the subject of the gift and the terms (if any) on which it is given. In addition, it should state that the gift is made without any consideration (the legal term for reward, payment or expectation of payment) from the donee.
- The Hibah may be revoked at any point providing the subject of the gift has not been handed over to the donee, according to scholars from the Hanbali, Maliki and Shafie schools of Muslim law.
- In order to revoke a Hibah, the donor must carry out one of the following tasks as a Kaffarah (type of religious penalty):
- Give food to 10 poor people of a type that the donor usually consumes;
- Give clothing to 10 poor people;
- Perform a 3-day fast.
Hibah v Faraid
Assets belonging to a deceased Muslim which had been given away during their lifetime fall outside of the scope of Faraid. This means that these assets will remain as the donee’s property, and should not be distributed to the heirs (known as Waris) of the deceased.
Hibah v Wasiat (Will)
In a Wasiat, it is not permitted for a Muslim to give away any of their assets to someone who is already their heir under Faraid. Also, a Muslim isn’t permitted in a Wasiat to give away more than one third of their assets. However, these restrictions do not apply to a Hibah.
This is a type of conditional gift, whereby a donor says “This property is yours as ruqba; if you die before me, the property becomes mine, but if I die before you, the property will become yours.” The term ruqba in Arabic means waiting for the other party to die.
Sadly, there is disagreement amongst Muslim scholars as to the validity of such a gift under Muslim law. Such a gift may be seen as intending to take effect following the donor’s death, in which case it might be subject to the restrictions applying to the Wasiat, described above.