This article discusses the Hibah and the rules of Muslim law which apply to it.
Hibah simply means “gift”.
A Muslim may immediately give away anything that he owns (or any amount thereof) to another person or to another party (for example a charitable organisation) by immediately transferring both the legal title to and possession of the subject of the gift to the receiver of the gift (called the “donee”).
Alternatively, the person making the gift (called “the donor”) can execute a document (usually a “Deed of Gift”) to declare the gift to donee. In this situation, the legal title to and possession of the subject of the gift may not immediately pass to the donee.
Rules Which Apply To Hibah
- Needless to say, for a Hibah to be valid, the donor must at least have legal title to the subject of the gift and must have legal capacity to give away the same to the donor.
- A Hibah made by a minor or a person who lacks mental capacity or by a person under undue pressure or by force is invalid.
- A Hibah must clearly express the offer of the gift to the donor, an accurate description of the subject of the gift and the terms of the gift (if any) as well as the fact the gift is being made without any consideration (payment of money or other forms of reward or expectation of such payment or reward) from the donee.
- Islamic scholars from the Shafie, Hanbali and Maliki schools of Muslim law are of the view that a Hibah may be revoked at any time as long as the subject of the gift has not been handed over to the donee. Once the donee has taken possession of the subject of the gift, the Hibah may not be revoked by the donor, unless the gift is from a parent or grandparent to his/her child or grandchild.
- If the donor chooses to revoke a Hibah, he must perform one of the following tasks as Kaffarah (a form religious penalty):
- provide food for 10 poor people with the type of food that the donor usually consumes; or
- provide clothing for 10 poor people; or
- fast for 3 days.
Hibah v Faraid
The assets of a deceased Muslim which had been given away during his/her lifetime fall outside the ambit of Faraid. In other words, these assets will remain the property of the donor(s) and are not to be distributed to the heirs (Waris) of the deceased.
Hibah v Wasiat (Will)
In a Wasiat, a Muslim is not permitted to give away any of his assets to persons who are already his/her heirs under Faraid. Further, in a Wasiat, a Muslim is not permitted to give away more than a-third (1/3) of his assets. These restrictions do not apply to the Hibah.
The Hibah Ruqbah is a form of a conditional gift by which the donor says: “This property is yours as ruqba; if you should die before me, the property becomes mine and if I die before you, the property becomes yours.” The Arabic term “ruqba” means waiting for the other to die.
Unfortunately, Muslim scholars differ in the views on the validity of such a gift under Muslim law. It may well be that such a gift is seen as intended to take effect after the death of the donor in which case it may be subject to the restrictions which apply to the Wasiat as described above.