Bahishti Zewar, Fiqh, Part 5-Principles of Business / Monday, October 18th, 2010

1. You gave an item to a person and he accepted it. Alternatively, he did not accept it verbally, instead, you placed it in his hand and he took it. That item will now be his and it no longer belongs to you. In the Sharî‘ah this is known as hiba – a gift or present. There are several conditions for this. One is that you have to hand over the item to the person and he has to take possession of it. If you tell him that you are giving him this item and he says that he is accepting it but you have not handed it over to him as yet, then this giving of yours is not correct. The item will still be considered to be under your ownership. However, if he takes possession of it he will become its owner.

2. You placed the item in front of him in such a manner that if he wishes he can take it, and you say to him: “Here, take this.” By placing the item in such a way, he will also become its owner. It will be regarded as if he picked it up and took possession of it.

3. You gave a person clothing that is kept in a locked trunk but did not give him the keys to the trunk. This will not be regarded as taking possession of the item. Once you hand over the keys, possession will take place and he will become the owner of the clothing.

4. There is oil or any other substance in a bottle. You gave the bottle to a person but did not give him the oil. This giving will not be correct. Even if he takes possession of it he will not become its owner. Only when you take out your oil from it will he become its owner. If you give the oil but not the bottle and the person takes the bottle with the oil and tells you that he will empty the oil out and then return the bottle to you, then giving the oil in this manner will be correct. Once he takes possession of it he will become its owner. In short, if you wish to give a bottle, utensil, etc. it is a prerequisite to empty the utensil first. It is not permissible to give it without first emptying it. Similarly, if anyone gives a house, he must remove all his belongings and he himself must come out of it and then hand it over.

5. If you wish to give a person a portion of a certain item (i.e. half, quarter, one third or whatever the case maybe), first check the nature of the item. Will it be of any use after being divided or not? If it will not be of any use after dividing it, it will be permissible to give it. Such items are: a grinding mill that if it is split in half, it will not be of any use, a bench, a bed, a utensil, a pitcher, a bowl, a tumbler, a trunk, an animal, etc. Once the person takes possession of such items he will become owner of that portion which you have given to him and the whole item will come under a partnership between both of you.

If the item is such that if it is divided it can still be of use, then it is not permissible to give it without dividing it. Such items are: a plot of land, a big house, a roll of material, firewood, dry groceries, milk, yoghurt, etc.

You tell a person: “I am giving you half the ghee that is in this container.” He replies: “I accept it.” This giving will not be correct. In fact, even if he takes possession of the container he will not become the owner of that ghee. All the ghee still belongs to you. However, if you thereafter separate half the ghee and hand it over to him, he will become its owner.

6. Two persons purchased a length of material, a house or a farm and each one paid half the money for it. As long as they do not divide it, it is not permissible for any one of them to give his share away to anyone.

7. You gave R10 to two persons and told them to take half each. This is not correct. Instead, you should divide both in half and then give it to them. However, if both of them are poor, it is not necessary to divide it. If you give one cent to two persons, this will be correct.

8. A goat or cow is pregnant. It is not permissible to give the young of the goat or cow to anyone before it can be born. In fact, even if the person takes possession of it after it is born, he will not become its owner. If you wish to give it, you must give it again after it is born.

9. A person gives you a goat and tells you that he is not giving you the kid that is in its stomach and that it belongs to him. The goat and the kid now belong to you and the person does not have the right to take the kid away.

10. A certain item of yours is kept with someone as an amânah. You gave that very item to that very person. In such a case that person will become its owner by merely stating that he has accepted it. It is not necessary for him to go and take possession of it again because it is already in his possession.

11. If an immature boy or girl give their possession to someone, this will not be correct. It is also not permissible to take anything that they give. Remember this mas’ala well because many people are neglectful in this regard.

One Reply to “HIBA or GIFTS”

  1. Assalamualaikum. I have a query, very essential from my angle from the point of settlement of property.
    My father had said that he had gifted his house to my brother (around 29 years old), through Hiba. The donee was mentally retarded by Allah’s will, and was not a responsible not accountable person. Now, I would like to know if this Hiba arrangement was valid. Ofcourse my father was his son’s legal guardian, but in this instance, how could my father have acted both as a donor & as a donee (on behalf of his son)? Is this Hiba arrangement valid?
    Please advise. Thank you.

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