What are the constituents of a valid 'Hiba'? Can a valid gift be made in favour of a Non-Muslim?

Question: What are the constituents of a valid 'Hiba'? Can a valid gift be made in favour of a Non-Muslim? [BJS 1977]

Find the question and answer of Muslim Law only on Legal Bites. [What are the constituents of a valid 'Hiba'? Can a valid gift be made in favour of a Non-Muslim?]

Answer

Hiba is a gift of property in Islamic law, which is a transfer of ownership of property from one person (the donor or al-hib) to another (the donee or al-mahib) without any consideration. It is an important concept in Islamic law and is widely used in Muslim countries.

There are several constituents of a valid hiba in Islamic law. These are:

Mental capacity: The donor must have the legal capacity to make a gift. This means that the donor must be of sound mind and not under any duress or undue influence.

Free will: The gift must be made voluntarily and without any coercion. If the donor is forced or coerced into making the gift, it will be considered invalid.

Possession: The donor must have possession of the property at the time of the gift. Possession means that the donor has control over the property and can dispose of it as they wish.

Specificity: The gift must be specific and identifiable. This means that the property being gifted must be clearly and specifically described so that it can be identified.

Acceptance: The donee must accept the gift. The acceptance can be expressed or implied, but it must be clear that the donee is willing to receive the property.

Legal formalities: Hiba is considered a contract and there is a need for valid execution of the gift deed and registration of the same.

Prohibition: Certain properties are prohibited from being gifted such as properties that are subject to a debt or are in litigation, or properties that are necessary for the livelihood of the donor and their family.

Hiba is considered a valid contract and transfer of ownership in Islamic law, as long as all of these conditions are met. Once the gift is accepted by the donee and the possession of the property is transferred, the donee becomes the owner of the property and has the right to use and dispose of it as they wish.

It's important to note that there is a difference between hiba and sadaqah. Hiba is a gift of property which is made voluntarily, without any consideration, and the property is transferred to the donee, whereas sadaqah is a charitable donation, which is made voluntarily and with the intention of helping the poor or needy.

In addition, hiba can be made between two living parties, whereas sadaqah can be made during the lifetime of the person or after death as well.

Hiba is a gift of property in Islamic law which is made voluntarily, without any consideration and the property is transferred to the donee. For hiba to be valid, it must meet certain conditions such as mental capacity, free will, possession, specificity, acceptance, legal formalities and prohibition. It is important for parties to understand the legal requirements for hiba and the distinction between hiba and sadaqah. This will help them avoid any disputes or legal issues in the future.

Can a valid gift be made in favour of a Non-Muslim?

In Islamic law, gifts, known as "hibah," are considered a form of charity and are generally permissible to give to non-Muslims. However, there are some restrictions on what kind of gifts can be given to non-Muslims, and under what circumstances they can be given.

One restriction is that it is not permissible to give gifts to non-Muslims with the intention of converting them to Islam. This is considered a form of deception and is not allowed.

Another restriction is that it is not permissible to give gifts to non-Muslims that are harmful to the Muslim community. For example, it would not be permissible to give weapons or other military equipment to non-Muslims if it would be used against Muslims.

It is also important to note that gifts given to non-Muslims are considered to be a form of charity and are not considered to be a form of transaction or trade. Therefore, the gift cannot be given with the expectation of receiving something in return.

In summary, while gifts can be made to non-Muslims, it is important to be mindful of the restrictions and the intentions behind the gift. It should not be given with the intention of converting non-Muslims or causing harm to the Muslim community.

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