When we give something to someone else, it might be hard to imagine the legal and judicial issues behind this act of generosity. However, we must not forget that giving away property is equivalent to entering into a hibah (gift) contract, which has its own specific conditions.
What is Hibah (Gift)?
Hibah is the act of transferring ownership and giving something to another without receiving any compensation in return. In other words, if a person gives something to someone freely and without charge, it is called hibah. In the case of hibah, there is no need for a formal verbal declaration (sighah); it is sufficient for the giver to offer the item with the intention of gifting it and for the recipient to accept it with the same intention. The person giving the gift is called the wahib, the recipient is the mutahab, and the object of the gift is referred to as ‘ayn mawahubah (the gifted item).
What is the difference between hibah and sadaqah (charity)?
In contrast to hibah, sadaqah must be given with the intention of seeking closeness to Allah (niyyah qurbatan ilallah), and once it is received, it cannot be revoked.
What conditions must the giver of hibah meet?
The giver must be of sound mind, mature, and acting with intent—not under coercion—and not legally restricted from disposing of their property due to insolvency or foolishness. They must own the property being given or have legal authority over it. Otherwise, the hibah is considered unauthorized (hibah al-fuduli), and its validity depends on the permission of the rightful authority.
If a deceased person had written in their will that a specific item was gifted to someone, but that person was unaware and is now unsure whether this was indeed said to them, does the person own the item?
Acceptance is a condition for hibah. If the recipient has not accepted the gift before the death of the giver, the item transfers to the estate. Acceptance after the giver’s death is ineffective. Also, in hibah, actual delivery (iqbaadh) is required.
If a relative was gifted something on the condition of providing compensation but failed to fulfill it, can the giver reclaim the gift after several years?
Yes, if the condition was violated, the giver has the right to reclaim the gifted item.
In conditional hibah, is there any difference between relatives and non-relatives?
In case of breach of condition, there is no difference between relatives (dhawi al-arham) and non-relatives.
In which cases can the giver not revoke a hibah?
When the gift was given to seek closeness to Allah.
When compensation was received in return (hibah mu'awwadah).
When the gift was given to a blood relative.
When the nature of the gift has changed (e.g., cloth has been cut or sewn).
When either party has died.
In which cases is taking back a gift permissible?
If the recipient is a relative, the gift cannot be reclaimed unless a specific condition was set or the gift was contingent on continued marriage or similar terms. If the recipient is not a relative, the gift may only be reclaimed if it still exists in its original form, has not been consumed, and no condition was attached to the gift.
What is the ruling on taking back a gift?
Even in cases where it is allowed, it is discouraged to take back a gift. Taking back a gift is considered distasteful among people. The Prophet Muhammad (peace be upon him) said:
“Whoever takes back a gift is like one who swallows his own vomit.”
Rulings from “Ajwibat al-Istifta’at”
Q1715: Is it permissible to use a gift given by a minor orphan?
A: It depends on the approval of their legal guardian.
Q1716: Two brothers shared a piece of land. One gifted his share to the elder brother's son in a hibah mu'awwadah (gift with compensation) and handed it over. Can the children of the deceased donor claim inheritance in that portion?
A: If it is proven that the deceased gifted and delivered his share during his lifetime, the heirs have no right to that property after his death.
Q1717: A person built a house for his father on the father's land, and with the father's permission, built an upper floor for himself. The person died a few years after the father. With no will or document, is the upper floor part of his estate?
A: If the son paid for the construction of the upper floor and controlled it during the father’s life without dispute, it is legally his property and becomes part of his estate.
Q1718: When I was 11, my father officially registered one of his houses in my name and gave land and half a house to my brother and the other half to my mother. After his death, other heirs claim the house in my name isn't legally mine. They admit the others' ownership. What is the ruling?
A: If the father gifted and delivered the property during his life, and officially registered it in your name, it is legally yours unless proven otherwise.
Q1719: I helped my husband financially during home construction. He promised to register one-third of the house in my name but died before doing so. There is no will or document. Do I have any ownership rights?
A: Financial help or a mere promise does not establish ownership. Unless it is proven that he gifted part of the house to you during his life, you only inherit your legal share.
Q1720: While mentally sound, my husband gifted me the funds in his bank account, signed documents, and witnesses were present. Later, his son took him to the bank while he was mentally impaired, and he agreed (non-verbally) that the money belonged to both his wife and children. Who owns the money?
A: Since possession is a condition for hibah, merely signing documents and receiving checks is insufficient. What you withdrew during his sound state is yours; the rest remains his estate. His statements while mentally impaired are not valid.
Q1721: Are items children buy for their mother during her lifetime considered her personal property and part of her estate after death?
A: If the children gifted and delivered the items, they belong to the mother and are part of her estate after her death.
Q1722: Do gold ornaments a husband buys for his wife belong to her, or are they part of his estate upon death?
A: If the wife had possession and used them as an owner, they belong to her unless proven otherwise.
Q1723: Are gifts received by a couple during marriage owned by the husband, wife, or both?
A: It depends on the nature of the gift. If clearly intended for one party, it belongs to them. If given jointly, it is shared.
Q1724: If a woman is divorced, can she reclaim items (like carpets or clothing) her family gave her at the time of marriage?
A: If the items were given directly to the wife or are her personal belongings, she may reclaim them if they still exist. If they were given to the husband, the givers can only revoke the gift if the items still exist and the husband is not a relative.
