hibah.pdf

Islamic Law of Islamic Law of

PropertyPropertyPropertyProperty

LAB2033LAB2033

DR. ZULKIFLI HASANDR. ZULKIFLI HASAN

Content Content

HibahHibah

Conceptual FrameworkConceptual Framework

The Practice of HibahThe Practice of Hibah

IntroductionIntroduction

Hibah is the grant of property that occurs during the life of a hibah provider.

Hibah is encouraged in Islam and in fact it can prevent and resolve property disputes.prevent and resolve property disputes.

In Malaysia, there is no specific law on hibah.

Hibah, gift and AlmsHibah, gift and Alms

as a form of a grant either in its physical form (ain) or otherwise. It covers gifts and alms..

Alms are grants intended for reward in the hereafter, and usually given by the rich to the hereafter, and usually given by the rich to the poor.

Gift is a contribution to honour someone and is usually related to a specific matter.

All alms and gifts are hibah but not all hibahs are alms and gifts.

DefinitionDefinition

a contract (akad) that entails granting ownership of a

property to someone else during his lifetime without

any reprisal (iwad).

a contract of granting the physical form (ain) of owned a contract of granting the physical form (ain) of owned

property from one party to another party without

reprisal (iwad) during the persons lifetime on a voluntary basis, not expecting a reward in the hereafter

and honouring a person, with the pronouncement of

ijab and qabul or the likes.

Characteristics of HibahCharacteristics of Hibah

1) An akad (contract) of granting property ownership to a specific party.

2) The property that can be given as hibah is a physical (ain) property and not debt or benefits/interests.

3) Hibah contract is made without imposing any reprisal (iwad). reprisal (iwad).

4) Hibah contract is in effect during the lifetime of the hibah provider.

5) It is made voluntarily without coercion.

6) The contract is made with no intension to receive reward or honour a particular person.

Hukm on HibahHukm on Hibah

Hibah is a practice that is favourable (sunat) in Islam especially to the immediate family..

But if they give up willingly to you anything of it, then take it in satisfaction and ease. (Surah An-Nisa: take it in satisfaction and ease. (Surah An-Nisa: verse 4).

...and gives wealth, in spite of love for it, to relatives, orphans, the needy, the traveller, those who ask [for help], and for freeing slaves. (Surah Al-Baqarah: verse 177).

Pillars of HibahPillars of Hibah

1) Hibah Provider (al-Wahib)

A sound mind, has attained puberty (baligh) and obeys the

rules (rushd).

Must be the genuine owner of the items intended for hibah.

2) Hibah Recipient (al-Mawhub lahu)

Can be of anyone as long as he/she has the capability to own Can be of anyone as long as he/she has the capability to own

property, either accountable (mukallaf) or non-accountable.

If the hibah recipient is not a mukallaf such as has not

reached puberty or disabled, the hibah is to be given to a

guardian (wali) or a trustee on his/her behalf.

The hibah recipient must receive the hibah property and has

the authority to hold on to the property.

Cont..Cont..

3) 3) Goods or property for hibah (al-Mawhub)

It must be lawful (halal) goods or property.

It must have value.

The goods or property belong to the hibah provider.

The ownership is transferable. The ownership is transferable.

It must truly exist during the time of the hibah.

Goods that are still in debt can be given as hibah if

consent can be obtained from the chargor or borrower.

Cont..Cont..

4) Sighah namely contract (ijab) and grant (qabul)

A pronouncement or an act which means giving and

receiving of hibah.

There are continuation and similarities between ijab and

qabul.

Not conditioned to a specific time period. A hibah

which is conditioned to a specific time period such as in

the case of al-umra and al-ruqba is legally binding but

the said condition is void.

Acceptance of Goods (al-Qabd) in Hibah

getting something and tasarruf can be done onto the goods or property.

Hambali and Maliki: The receipt of goods is not a condition in a hibah, but enough with the solemnisation contract. solemnisation contract.

in the event of death of either one or one of the

parties of either the hibah provider or receiver

before the delivery of the goods, then the hibah is

considered as valid.

ContCont

Abu Hanifah and Syafie:

Receipt of goods is one of the conditions to validate the

hibah.

In the event of death of either one of the two parties prior to

the delivery of the goods, then the hibah becomes null and

void.void.

a luzum condition: : not complete unless after the al-qabd. .

If al-qabd does not take place then the hibah contract is not a

binding contract. Therefore, the hibah provider has the right

to withdraw the grant as long as the property is in his

possession.

Condition of al QabdCondition of al Qabd

1) Obtained permission and consent from the hibah provider clearly (sarih).

2) The hibah property is not mixed with other properties. properties.

3) The hibah recipient has reached puberty and healthy (sane). For children and the insane (non-rightful), then the guardian or trustee may accept the hibah property on their behalf.

Modes of al QabdModes of al Qabd

Immovable property: Al-qabd can occur by way of vacating the property, taking control of the property and doing tasarruf onto the property such as handing over the keys and the likes.

Movable property: Al-qabd can happen by Movable property: Al-qabd can happen by taking the property, moving or separating the property from other properties.

Types of HibahTypes of Hibah

Unrestricted:

Unrestricted gift is given without any condition

attached to it

Restricted Restricted

a gift with certain conditions imposed on it

Restricted HibahRestricted Hibah 1). Temporal gift or a lifetime-gift called umra. A temporal

condition imposed on the gift is normally stated as if the gift was given for the duration of the recipients life, then it would be returned to the donor or his heirs upon the recipients death and if the gift was given for the duration of the donors life, then it must be returned to the donors heirs upon his death. The transfer of property from the donor to the donee is effected but the temporal condition is voided.

2) Conditional gift (ruqba): the donor lays down that the gift 2) Conditional gift (ruqba): the donor lays down that the gift will belong to donee if the donor dies first. If donee predeceased the donor then the gift must be returned to the donor. Only the Hanafis and Malikis forbade conditional gift and on the other hand most of the jurist allow temporal gift.

3) Usufruct gift. According to Hanafi, it depends on whether or not the object itself survives after the donee collects its usufruct. Usufruct of non-fungibles object is considered as a type of loan to the donee. Usufruct of fungibles object which the usufruct is to be derived can only be used by consumption is tantamount to a full gift

The Practice of HibahThe Practice of Hibah

Direct hibahDirect hibah

Hibah TrustHibah Trust

Direct HibahDirect Hibah

Direct Hibah is simpler than the Hibah Trust in which it is valid and concluded with the acceptance of the gift by the donee followed by the technical procedure which is transferring the the technical procedure which is transferring the property right between parties involved

Illustration: Direct hibah Illustration: Direct hibah

Transfer

Donor Donee

Transfer

Hibah Amanah Hibah Amanah

Hibah Trust

the modification and combination between Hibah and trust features

some restrictions in Hibah can be eliminated and its application is more flexible in the sense that this new form of Hibah is now allowed to be given conditions either Umra or Ruqbamore flexible in the sense that this new form of Hibah is now allowed to be given conditions either Umra or Ruqba

more efficient in terms of the legal procedures, cost and time as there is no longer requirement for the application of the letter of administration, probate or Order from any of the various authorized bodies which at the same time bringing down the costs and time for such settlement

IllustrationIllustration

First stage: Similar to the Direct Hibah,

Second stage: The procedure that involves the assets to be entrusted to a trustee for a certain time frame according to the Trust Deed which is agreed between the donor and the beneficiary. the donor and the beneficiary. The declaration of the Hibah Trust takes place during the

lifetime of the donor but however the transfer of ownership of the assets is after the demise of the donor.

Between the two periods, the termination of the Hibah Trust is allowed except for a contract that involves a gift from a husband or wife

Cont..Cont..

Trust hibah is a cross between hibah and trust.

It is a gift of property by a person on the basis of love with ijab and qabul during the lifetime of the hibah provider.

The hibah property will be held by the trustee and will be transferred to the hibah receiver after the demise of the hibah provider or by consent from the parties concerned. provider or by consent from the parties concerned.

The hibah made by a hibah provider to ensure that he still has control over his properties because of a concern that the hibah recipient may neglect him (hibah provider) once all his properties have been transferred.

The hibah provider will have a separate agreement outside of the akad which entitles the hibah provider to manage and use the property until his demise.

Fatwa on Hibah TrustFatwa on Hibah Trust

the 56th Meeting of the Islamic Law Consultative

Committee of the Federal Territory on 5 October 2000,

it was decided that attachment of conditions is allowed

between the hibah provider and hibah receiver after ijab

and qabul has taken place.

The Syaria Advisory Council (SAC) of the Securities The Syaria Advisory Council (SAC) of the Securities Commission in its 44th meeting on 15 January 2003

agreed to adopt the principles of hibah ruqba as the

syaria basis in the implementation of the hibah declaration form for transactions involving trust funds

joint accounts, especially accounts owned by Muslims.

Withdrawal and Revocation of HibahWithdrawal and Revocation of Hibah

Hanafi: A hibah provider can withdraw the hibah but it

is unfavourable (makruh) to withdraw a hibah that has

been given away, and the person may fasakh the hibah

even though the hand-over has occurred (qabd), unless

the hibah was made with repayment (iwad).

Syafii, Hambali: Hibah withdrawal may occur solely

with ijab and qabul. However, when accompanied with

the delivery and acceptance of goods (al-qabd), then the

hibah cannot be withdrawn unless the hibah is made by

the father.

ContCont

Although Islam permits the revocation of hibah made

by a father on his children, however, it is bound by the

condition that the property is still in the possession of

his son (his grandson).

If the property has gone beyond the jurisdiction and

ownership of his son (grandson) such as it has been

sold, wakaf or given as a gift to another person and the

property has already been received by the hibah

recipient (other people), then the hibah cannot be

withdrawn.

Cont..Cont..

Imam Ahmad and Zahiri: Hibah providers are prohibited (haram) from withdrawing a hibah unless a hibah by the father to his children.

Hadith: One who gets back his gift is like a dog which vomits and then swallows that vomit. (Bukhari and vomits and then swallows that vomit. (Bukhari and Muslim).

Extent of the PropertyExtent of the Property

Islam does not specify the exact rate or extent of the property to be given as hibah.

It is up to the hibah provider to decide on the extent of the property he wishes to give away.extent of the property he wishes to give away.

Cont..Cont..

Hanafi, Maliki and Syafi'e: It is favourable (sunat) to equalise the hibah between the children and giving more to one of them is unfavourable (makruh).

Abu Yusuf: To give a bigger portion of the hibah to certain children is allowed if the parents do not intend certain children is allowed if the parents do not intend to pose any danger to the other children..

Hambali: Fairness in hibah to the children is a must (wajib).

Imam Malik: One may not hibah all of his/her property to only a few children and not to the rest.

Maradhul MautMaradhul Maut

The illness is the cause of death of the deceased.

The illness has caused death anxiety in the mind of the deceased.

There are external signs which show that the There are external signs which show that the illness is severe.

Cont..Cont..

al-Ahkam al-Adliyyah:

1) illnesses that normally lead to death, in which the illness may cause the sick to become weak and unable to see other interests (maslahat) outside of his house, if he was a man, and weakens

2) The sick to see other interests (maslahat) within the house, if she was a woman. The sick has died in such condition before a year passes by either he/she is bedridden or otherwise. year passes by either he/she is bedridden or otherwise.

If the illness continues and one year has passed by, then the ruling is the same as a healthy person, meaning that all his/her chores (tasarruf) are similar to a healthy person, as long as the illness is not too serious and the condition does not change.

However, if the illness becomes more severe (serious) and the condition have changed and he/she died in such circumstance, then the condition of being sick (from the time the change started until his/her death) is considered as marad al-mawt.

Characteristics of Maradhul MautCharacteristics of Maradhul Maut

A certain illness is the cause of the death.

A death caused by an illness that is prolonged into a year or after a year (in a condition which the illness has worsened). the illness has worsened).

An illness that may cause the sick to become absent-minded and neglectful of worldly interests.

If the hibah provider dies following

the pronouncement of hibah

The gift is exactly the same as a gift through a will and is subject to the laws of will namely:

The gift cannot exceed 1/3 of the total inheritance

of the deceased. of the deceased.

The gift is not given to an heir unless the other heirs

have agreed.

If the hibah provider lives

The grant shall be included in hibah law and subject to the laws of grants while living namely the assignment of ownership rights by the hibah provider to the hibah recipient.provider to the hibah recipient.

Majallat Al-Ahkam al-Adliyyah

When a person who has no heir gives away (hibah) all his/her property to someone at the time of marad al-mawt, then the hibah is received, then the hibah is ruled valid (Article 877).

When a husband gives away (hibah) all his property to the wife, or vice versa, at the time of marad al-mawt and the hibah is already received, while they have no and the hibah is already received, while they have no other heir, then the hibah is ruled valid and Islamic treasury (baitulmal) cannot interfere in the inheritance (Article 878).

When a person has given away (hibah) a property to one of the heirs at the time of marad al-mawt and after his death the other heirs do not agree, then the hibah is ruled as invalid (Article 879).

al-Umra

Al-Umra: a gift during the life of the hibah recipient or hibah provider with a condition that the property is returned after the death of the hibah recipient.

A temporary provision which refers to the life of either the hibah provider or the recipient.

If the hibah recipient dies, the hibah property is to be returned to the hibah provider.returned to the hibah provider.

If the hibah provider dies, the hibah property will be returned to the heirs of the hibah provider.

Eg. I give (hibah) this land to you when you are alive and if you die, then the property is returned to me if I am still alive and to my heir if I have died.

Al RuqbaAl Ruqba

Al-ruqba: A gift which puts death of either the hibah provider or recipient as the condition of hibah ownership to the living party.

A certain conditional grant determined by the hibah provider, in which the hibah property will become the hibah recipients if the hibah provider dies. provider, in which the hibah property will become the hibah recipients if the hibah provider dies.

If the hibah recipient dies before the hibah provider, then the hibah property will be returned to the hibah provider.

Eg. This land I give to you as ruqba and if you die first then the property will be returned to me and if I die first then the property is for you.

Hukm on Al Umra and al RuqbaHukm on Al Umra and al Ruqba

The majority of Islamic scholars are of the opinion that temporary hibah such as hibah 'umra and ruqba are considered valid but the conditions are considered void.conditions are considered void.

Application of Hibah Application of Hibah

There is no hibah law enacted

Item 1, List II of the Ninth Schedule of the Federal

Constitution that states: Except regarding the Federal

Territory of Kuala Lumpur, Labuan and Putrajaya, the Territory of Kuala Lumpur, Labuan and Putrajaya, the

Islamic law and the self and family laws of the Muslims,

including Islamic law with regards to inheriting intestate

or non-intestate properties, engagement, marriage,

divorce, dowry, maintenance, adoption, status of

children, child custody, gift, division of property

ContCont

Hibah is part of the state matters and it directly falls under the jurisdiction of the Syariah Court.

S 46 (2) (b) (v) and (vi), the Administration of Islamic Law (Federal Territories) Act 1993 (Act 505):

Syariah High Court shall

(b) in its civil jurisdiction, to listen to and determine all (b) in its civil jurisdiction, to listen to and determine all actions and proceedings in which all parties are Muslims and are related to

(v) a will or gift (alang) during marad-al-maut of a Muslim deceased person;

(vi) a gift during the lifetime, or settlements made without adequate compensation with money or moneys worth, by a Muslim;

Harun bin Muda and Others vs Mandak binti Mamat and Others [1999] XIII (I) JH 63

The claims made by the Pt was to confirm that the land was a hibah from the deceased to them.

The Terengganu SHC ruled that the pts claims to the extent of each individuals area specified was authentic and was satisfied in the truth of the claim and and was satisfied in the truth of the claim and concluded that it was indeed hibah.

Hibah had taken place even though qabul happened through actions whereby after ijab, the property had been developed, or worked on, or benefited by the defendant.

Salmiah binti Che Mat vs Zakaria bin Hashim [2001] XIV JH 79

Hibah was invalid even though qabul to ijab had already been done via actions.

The Court found that the rules of sighah, there was only the ijab from Che Mat but no qabul from the defendant either verbal or in writing.defendant either verbal or in writing.

The Court deemed the hibah of the defendant Che Mat invalid by reason of the rule of sighah was not carried out and not fulfilled.

The Court did not verify that the hibah as valid because the use and development undertaken on the land was carried out before the hibah giver gave permission

Eshah binti Abdullah and Five Others vs. Che Aminah binti Abdul Razak and Two Others

[2004] XVIII (I) JH 47 The hibah provider had died and there was no

withdrawal of hibah. The hibah had also been witnessed by other people, however the building in dispute still bore the name of the deceased.

Wtr or not qabul had been clearly stipulated after giving away or sufficient by other qarinahs to prove that there Wtr or not qabul had been clearly stipulated after giving away or sufficient by other qarinahs to prove that there was an acceptance.

The Court accepted the appeal made by the petitioners based on acceptance qarinah from the receiver, whereby all three hibah receivers declared that they had received the tenancy of the disputed building even when the deceased was still alive.