Hibah is a gift of property in Islam by the giver while the giver is still alive. While giving property through will is made after the person who made the will dies.
Hibah is a voluntary gift of property without recompense with the word ijab and qabul. While giving property through will is made to another person or party whether it is made verbally or not.
HIBAH FIRST ELEMENT – GIVER
The giver must have full possession and authority over the property to be given as hibah. If the property belongs to someone else, it cannot be gifted as hibah.
The giver must also be sane, mature and able to manage his property as a hibah.
Therefore, a child or a mentally ill person cannot make a hibah even if they have property.
HIBAH SECOND ELEMENT – RECEIVER
The receiver of the hibah must be able to receive the hibah property directly if he is an adult and of sound mind. If the receiver is a child or a person of weak mind, he/she needs to be represented by someone who is qualified or called as a trustee.
The receiver must also exist when the hibah is made. However, if the giver wants to give to an unborn child, it is necessary to obtain the consent of the other receivers to accept the existence of the child as a hibah receiver in the future when the distribution is made.
HIBAH THIRD ELEMENT – PROPERTY
There are several characteristics regarding the property to be hibah:
1. The property must be fully owned by the giver
2. The property must exist when the hibah is made
3. Property must be something valuable and halal
4. The property must be specifically detailed for the receiver’s information
HIBAH FOURTH ELEMENT – SIGHAH (ANNOUNCEMENT)
Sighah must be made by the giver to the receiver. This will be taken into account as a confirmation of the giving and receiving of property as a hibah.
There must be the following conditions:
1. Aqad, which is a promise meeting. Attended by giver, receiver and two
male witnesses or one male and one female.
2. Ijab, which is the pronunciation of giving property by the giver to the receiver. It is necessary to clearly state all the conditions, if any, and the description of the property.
3. Qabul, which is the pronunciation of the acceptance of property by the receiver of the hibah from the giver. It is necessary to clearly state the pronunciation. All receiver must be present during the ceremony.
COURT CASE – ACCEPTANCE OF HIBAH BY RECEIVER
Eshah binti Abdullah dan Lima Yang Lain lwn Che Aminah binti Abdul Razak dan Dua Yang Lain [2004] XVIII (I) JH 47
In this case, the issue arises as to whether the acceptance of the hibah needs to be made clearly or adequately with the existence of other evidence that proves the existence of acceptance.
The hibah giver has died but the ownership of the property which is a building is still registered in the name of the giver.
The Syariah Court of Appeal in this case allowed the appeal since there was evidence of the acceptance of the hibah by three receivers. They have admitted of receiving the rental income of the building since the giver was still alive.
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