Section One
The Gift (Al-Hibah)
915. A hibah is: giving ownership of an asset or the right to absolute ownership, which is transacted during the life of the giver, who makes the gift for free without payment and without the intention of qorbah to God. It is a contract that needs proposal and acceptance (ījāb and qobūl), but is sufficient in this if it includes any wording or act that identifies them (the proposal and acceptance).
916. The conditions for the validity of the gift are as follows:
First: For the giver, sanity, intention, free will and not being indicted for unreasonable conduct (sefeh), or for bankruptcy if the indictment is inclusive of the asset given; also reaching the Islamic legal age (bolūgh), so a child’s gift is not valid unless it comes with the permission of the guardian, and in giving the child’s assets there should be interest for the child himself.
Second: For the recipient, sanity, intention and free will if the one accepting it is the recipient himself or his proxy, otherwise the guardian of the insane may accept on his behalf. The same applies to the child that has not reached the age of sexual awareness (momayyiz); the child who has reached such an age can carry out valid acceptance and the hand-over of the gift if with the guardian’s permission.
Third: The gift, must be either a material asset such as a house or money, or a right such as the right of custody or jurisdiction/authority and the asset must be suitable for the ownership of the recipient; so giving alcohol (alcoholic drink) or pig (pork) to a Muslim is not valid.
917. To establish the giving of a gift, the given asset must be handed over, so if the recipient does not get the gift the contract becomes void and everything goes back to its original status, such as if the giver dies after the contract but before handing over.
918. Immediate handing over is not conditional, but when it is carried out; its consequences come into effect from the time of handing over not the time of the contract, so any benefits that accumulate before the hand-over is for the giver not the recipient.
919. It is possible for the giver to make something conditional in exchange for the gift, in which case the gift is described as a compensated/exchanged (hibah mo‘awwadah) or conditional (hibah meshrūtah) gift.
920. It is allowed to retract a gift except in four situations:
1- The recipient is a kin of the giver, such as a son, brother, uncle etc.
2- The gift is a compensation/exchange gift and the recipient has (already) started to meet his obligation regarding that which is compensated/exchanged.
3- The asset becomes damaged, or the recipient acts in a way that transfers it from his ownership or that changes it, such as if an animal dies or is sold, or making a piece of material into clothing and the like.
4- The giver dies after handing over, in which case his heirs are not allowed to retract the gift, or the recipient dies, in which case the giver is not allowed to turn to the heirs of the recipient.
921. It is better not to retract a gift between a husband and wife if the matter is not applicable to one of the four above-mentioned cases, otherwise it is not allowed.