FATIMAH (not her real name), 65, a widow, wanted to give her house to one of her sons who had provided for her needs in her old age.
Since will writing is not practiced in Islam (inheritance is distributed according to Shariah laws) except if non-family members (including adopted children) are involved, Fatimah decided to give the house to him while she was still alive, as encouraged in Islam. The ownership of the house was then transferred to her son. Fatimah continued to live in the house while her son and his family resided in another state.
Complications arose when her son died. Fatimah began renting out a couple of rooms in her house to support herself since her son's death but her daughter-in-law, who had become the rightful owner of the house, disapproved of her action and asked her to move out. According to Faraid (Islamic law on the distribution of estate), a husband's inheritance goes mostly to his wife and children. Only one-sixth of it goes to his mother.
In another case, Ong (not his real name), bought a house in his son's name with the intention of bequeathing it to him when he dies. Ong was already in his 60s and it was difficult for him to get a bank loan.
Years later, he received a legal letter informing him to move out of the house. His son, who was heavily in debt from gambling, had sold the house without his knowledge. Without a job, the heartbroken Ong feared he might end up in an old folk's home.
Such experiences tell us that the man-in-the-street perceives will writing to be a hassle. The elderly often find themselves caught in difficult situations.
To address setbacks that often arise in the legal process of asset distribution upon the demise of family providers as well as the weakness in direct giving, Bumiputra-Commerce Trustee Berhad (BCT), a subsidiary of Bumiputra-Commerce Bank, has introduced a new concept involving the role of trustees in direct giving.
Called Hibah Harta for Muslims and Hadiah Sulaman Kasih (A Gift of Love) for non-Muslims, BCT will hold in trust and manage the gift, in the form of any assets that can be bought or sold and is legally owned by the giver.
Agreement is made during the lifetime of the giver and recipient.
"The property is given to the beneficiary, but it is parked in the trustee's name. It protects the interests of all parties," says Othman Yaacob, Hibah Harta consultant at BCT.
The recipient is not allowed to transfer the asset or any part of it during the lifetime of the giver. Upon the death of the giver, the trustee will transfer the property to the recipient. If the recipient dies before the giver, the property will be returned to the giver, says Othman.
"The usual procedure requires the giver to go through court proceedings to claim back his gift. He will have to get a Letter of Administration and Order for Distribution from the court," says Othman who formulated BCT's trust schemes.
Since Hibah Harta and A Gift of Love are private contracts done during the lifetime of the two parties, the property will not form part of the giver's estate, which renders it unaffected by the Probate and Administration Act, Will Act 1959 and Faraid. As such, there is no need for probate or Letter of Administration, says Othman.
BCT would immediately proceed with estate distribution in accordance with the Trust Deed, he adds.
"As such, the trust services offer a fast, secure, efficient and trouble-free process of asset transfer and distribution. "The usual estate distribution process may take between six months and 10 years while we will take only between 14 days and three months," says Othman.
The giver, he says, can continue to receive benefits such as rental, dividends and other proceeds from his assets while he is still living.
While the trust plans protect the interests of givers, they also offer protection to recipients. For instance, if parents would like to give gifts to their adopted children who are not entitled to their adoptive parents' inheritance under Faraid, or daughters, who get half the share that a son would get, the giver can hand over gifts according to their children's needs.
Unlike non-Muslims, Muslims do not distribute estate by writing a will, but it is distributed according to Faraid and the main beneficiaries are spouse and children. Only one-third of the estate can be distributed to non-beneficiaries by will writing.
"With Hibah Harta, a benefactor can allocate his assets to any deserving individuals of his choice," says Othman. Hibah Harta has been approved by the Federal Territory Fatwa Council.
Muslim customers entering into a contract under Hibah Harta would participate in the lafaz akad or verbal offer and acceptance of possession of the asset as required by Shariah laws, says Othman.
Hibah Harta given by parents to their children can be withdrawn but Hibah Harta by the children for their parents can't.
Sulaman Kasih does not need any verbal acceptance.
Hibah Harta is based on the Islamic concept of hibah and is encouraged in Islam; Sulaman Kasih is adapted from the Transfer of Property Act 1882 enacted by the British in India, says Othman, who retired from Amanah Raya Bhd (a public trust body) specializing in estate administration a couple of years ago.
Othman says the one-time fee for the services is competitive: the 1% acceptance fee and 1% distribution fee go on a sliding scale as the amount of assets increases.
Possible grey areas
Dr Ismail Mohd, a Syariah lecturer of probate and administration of estate, says the practice of Hibah Harta is subject to further interpretation.
"In Islam, the act of direct giving during one's lifetime has an immediate effect. Once the legal transfer is completed, the gift must be given to the recipient," he says.
"With that in mind, why should the gift be held by a trustee?" says Dr Ismail, one of the panel members appointed by the Islamic Development Department (Jakim) to draft the enactment of Islamic law of succession.
Also, the idea that the gift can be returned to the giver in the event that the recipient dies, does not go with the spirit of giving--that once given, it is not meant to be taken back, he says. "When you give, you just give. Why consider retracting it?"
Although the giving is done in the lifetime of both parties, the full ownership is actually after the giver's death--this is not the true sense of a gift, he says.
"If it is after death, then it is subject to the rule of Faraid," says Dr Ismail.
"Some say the idea is possible and some say not. It is still subject to juristic discourse."
"If a mother would like to give something to her son while still hoping to gain from the asset, and she creates a trust and an agreement, it is a legal device (helah). Then one questions the actual intention or validity of the giving," he says.
The arrangement (Hibah Harta) cannot be defined as a gift but a convenient arrangement between two parties, says Syariah lawyer Syed Ibrahim Syed Abdul Rahman.
"It is understandable that parents fear being kicked out of the house, but if a gift is not completely disposed of when one is alive, it is not a gift. There should not be any residual rights on the part of the giver," says Syed Ibrahim.
Othman disagrees that gifts cannot be given with conditions or revoked. There are three types of gifts in Islam: hibah are gifts that are given out of love and can be taken back (except for gifts from children to parents) unlike hadiah (gifts to honour a person) and sedekah (gifts for those in need).
Moreover, with Hibah Harta, there is offer and acceptance signifying an agreement between two persons. The gift is already given and both parties agree to the condition, says Othman.
Syed Ibrahim points out that there would be added costs to transfer the property to the trustee and re-transfer it back to the giver in the event the objective is not fulfilled.
For non-Muslims, a lawyer in Kuala Lumpur says setting up a trustee is not new in civil law. Often, trusts are set up to manage one's assets for the benefit of future generations.
Therefore, the trust deed is rarely changed, unlike will writing, which is more flexible and encompassing, he notes.
A will is often revised but not a trust, he says, adding that the agreement between the giver and the trustee must be specific; otherwise it defeats its purpose.
"Trusts are usually set up if the benefactor has a lot of assets that need to be managed. For small assets, it is more practical to write a will," he says.
Monday, October 13, 2008
HOW DO YOU TURN YOUR ASSETS INTO A GIFT WITHOUT A WILL DURING YOUR OWN LIFETIME?
Hibah - A gift for the ones you love during your own lifetime for Muslims
Our spouses Our children. They are the very source of our happiness. As such, it is only natural for us to provide them with security and protection to ensure their safety and happiness. While this does not pose much of a problem if done on a daily basis, wherein lays the safety net in the event of the unexpected? Our calling to The Almighty is not something we can predict. Which then raises the question: In the event, what will happen to our loved ones?
What is Hibah Harta?
Hibah Harta, is a private contractual arrangement whereby a person (the Donor) allocates his property, during his lifetime, to his loved ones (the Donees). In doing so, the property allocated thus will be held in trust. This concept involves three parties - The Donor, The Donee and The Trustee.
Upon the Donor's demise, the Trustee will then transfer the gifted property to the Donee. As Hibah Harta is a private contract done during the lifetime of both the Donor and the Donee, the property will not form part of the Donor's estate, and not subjected to the Probate and Administration Act and Faraid. Hence, this makes the transfer of the Donor's assets smoother and trouble-free.
In Islam, it is encouraged (sunat) to perform Hibah your asset. Hibah is not subject to laws relating to Estate (Deceased Estate). Thus, the time taken to distribute the Donor's assets according to his wishes would be easier and faster. In doing so, the Donor is also ensuring the well being and harmony of his family.
The difference between Hibah Harta and a Will?
Without Hibah Asset or a Will (Deceased Estate)
The administration of your estate may encounter many unforeseen problems and difficulties, as it would be subject to the rules and regulations of various regulatory authorities which can prove to be daunting and time consuming. Either way, the distribution process of your estate may take between 6 months to 10 years. There have been cases which stretched up to 20 years.
With a Will
The processing time of a Will is a little shorter (between 3 to 6 years), as the terms of your Will may have to be read out in the Civil Courts. However, this procedure is still subject to the various Acts and Regulations such as: Probate and Administration Act, Rules of The High Court, Faraid / Will Act.
With Hibah Harta
As Hibah is a private agreement made between two consenting parties during their lifetime, it is not subject to any laws relating to the estate of the deceased or a Will. Thus, the time taken to perfect the assignment of your assets by way of Hibah will take only between 14 days to 3 months.
The assets of the gifted property will be preserved and managed by the Trustee. Hence, preserving the security and well-being of the Donor, the gifted property will be wholly owned by the Donee only upon the demise of the Donor.
With Hibah, you can be assured that your loved ones will be well taken care of when you are no longer around to do so. You will rest easy with Hibah.
Our spouses Our children. They are the very source of our happiness. As such, it is only natural for us to provide them with security and protection to ensure their safety and happiness. While this does not pose much of a problem if done on a daily basis, wherein lays the safety net in the event of the unexpected? Our calling to The Almighty is not something we can predict. Which then raises the question: In the event, what will happen to our loved ones?
What is Hibah Harta?
Hibah Harta, is a private contractual arrangement whereby a person (the Donor) allocates his property, during his lifetime, to his loved ones (the Donees). In doing so, the property allocated thus will be held in trust. This concept involves three parties - The Donor, The Donee and The Trustee.
Upon the Donor's demise, the Trustee will then transfer the gifted property to the Donee. As Hibah Harta is a private contract done during the lifetime of both the Donor and the Donee, the property will not form part of the Donor's estate, and not subjected to the Probate and Administration Act and Faraid. Hence, this makes the transfer of the Donor's assets smoother and trouble-free.
In Islam, it is encouraged (sunat) to perform Hibah your asset. Hibah is not subject to laws relating to Estate (Deceased Estate). Thus, the time taken to distribute the Donor's assets according to his wishes would be easier and faster. In doing so, the Donor is also ensuring the well being and harmony of his family.
The difference between Hibah Harta and a Will?
Without Hibah Asset or a Will (Deceased Estate)
The administration of your estate may encounter many unforeseen problems and difficulties, as it would be subject to the rules and regulations of various regulatory authorities which can prove to be daunting and time consuming. Either way, the distribution process of your estate may take between 6 months to 10 years. There have been cases which stretched up to 20 years.
With a Will
The processing time of a Will is a little shorter (between 3 to 6 years), as the terms of your Will may have to be read out in the Civil Courts. However, this procedure is still subject to the various Acts and Regulations such as: Probate and Administration Act, Rules of The High Court, Faraid / Will Act.
With Hibah Harta
As Hibah is a private agreement made between two consenting parties during their lifetime, it is not subject to any laws relating to the estate of the deceased or a Will. Thus, the time taken to perfect the assignment of your assets by way of Hibah will take only between 14 days to 3 months.
The assets of the gifted property will be preserved and managed by the Trustee. Hence, preserving the security and well-being of the Donor, the gifted property will be wholly owned by the Donee only upon the demise of the Donor.
With Hibah, you can be assured that your loved ones will be well taken care of when you are no longer around to do so. You will rest easy with Hibah.
Gift in Hadith
Disapproval of buying the donated property by the donor himself:
'Umar bin Al-Khattab, may Allah be pleased with him, reported: I donated a pedigree horse in the path of Allah. Its possessor made it languish. I thought that he would sell it at a cheap price. I asked Allah's Messenger (may peace be upon him) about it, whereupon he said: Don't buy it and do not get back your Charity, for one who gets back the Charity is like a dog which swallows its vomit
Ibn 'Umar, may Allah be pleased with them, reported: 'Umar bin Al-Khattab donated a horse in the cause of Allah. then, he found it offered for sale, and he wanted to buy it. thereupon, he asked Allah's Messenger (may peace be upon him) about that, whereupon he said: Do not buy it and do not take your Charity back
Prohibition of getting back charity and gift after delivery except in case of the father's donation to his child and grand child:
Ibn 'Abbas, may Allah he pleased with them, reported: Allah's Apostle (may peace be upon him) said this: He who gets back his Charity is like a dog which vomits, and then returns to that and eats it
Ibn 'Abbas, may Allah be pleased with them, reported: Allah's Messenger (may peace be upon him) said: The similitude of one who gives a Charity and then gets it back is like that of one who vomits and then eats his vomit
Disapproval of giving preference to some children while making donation:
Nu'man bin Bashir, may Allah be pleased with them, reported: His father brought him to Allah's Messenger (may peace be upon him) and said: I have donated this son of mine a slave. Allah's Messenger (May peace be upon him) said: Have you donated to every one of your sons (a slave) like this? He said: No. Thereupon Allah's Messenger (may peace be upon him) said: Then take him back
Al Umrah (life grant):
Jabir bin 'Abdullah, may Allah be pleased with them, reported: Allah's Messenger (may peace be upon him) said: Whoever is gifted a life grant, then it is for him (belongs to him and to his posterity, for it belongs to him who has been given it). It would not return to him who gave it for he conferred it as a gift (it becomes the property of the donee and as such) rules of inheritance will apply to it
Abu Hurairah, may Allah be pleased with him, reported: Allah's Apostle (may peace be upon him) said: Life grant is permissible.
'Umar bin Al-Khattab, may Allah be pleased with him, reported: I donated a pedigree horse in the path of Allah. Its possessor made it languish. I thought that he would sell it at a cheap price. I asked Allah's Messenger (may peace be upon him) about it, whereupon he said: Don't buy it and do not get back your Charity, for one who gets back the Charity is like a dog which swallows its vomit
Ibn 'Umar, may Allah be pleased with them, reported: 'Umar bin Al-Khattab donated a horse in the cause of Allah. then, he found it offered for sale, and he wanted to buy it. thereupon, he asked Allah's Messenger (may peace be upon him) about that, whereupon he said: Do not buy it and do not take your Charity back
Prohibition of getting back charity and gift after delivery except in case of the father's donation to his child and grand child:
Ibn 'Abbas, may Allah he pleased with them, reported: Allah's Apostle (may peace be upon him) said this: He who gets back his Charity is like a dog which vomits, and then returns to that and eats it
Ibn 'Abbas, may Allah be pleased with them, reported: Allah's Messenger (may peace be upon him) said: The similitude of one who gives a Charity and then gets it back is like that of one who vomits and then eats his vomit
Disapproval of giving preference to some children while making donation:
Nu'man bin Bashir, may Allah be pleased with them, reported: His father brought him to Allah's Messenger (may peace be upon him) and said: I have donated this son of mine a slave. Allah's Messenger (May peace be upon him) said: Have you donated to every one of your sons (a slave) like this? He said: No. Thereupon Allah's Messenger (may peace be upon him) said: Then take him back
Al Umrah (life grant):
Jabir bin 'Abdullah, may Allah be pleased with them, reported: Allah's Messenger (may peace be upon him) said: Whoever is gifted a life grant, then it is for him (belongs to him and to his posterity, for it belongs to him who has been given it). It would not return to him who gave it for he conferred it as a gift (it becomes the property of the donee and as such) rules of inheritance will apply to it
Abu Hurairah, may Allah be pleased with him, reported: Allah's Apostle (may peace be upon him) said: Life grant is permissible.
(Hibah and Waqf)
"As for him who gives (gifts) and guards against evil and accepts the best, We will facilitate for him the easy end" (92:5).
"Woe to the praying ones, who are unmindful of their prayers, who do good to be seen, and withhold small gifts" (107:4-7).
Hibah is the giving of a gift whether it is given to one who is in need or to a well-to-do person and thus it differs from sadaqah which is meant only for the needy though they may be one's relatives. The giving of gifts (including charity) is praised while the withholding of small gifts is denounced as against the spirit of Islam. Stress is laid on developing the spirit of brotherhood by the giving of gifts, great or small as one can find. Even a poor man may give a gift out of the charity he has received. Compensation for a gift received is recommended. The giving of a gift to one child would be an injustice to other children, and it is therefore not allowed. A husband can give a gift to his wife and vice-versa. A wife may give gifts out of the property she has received from her husband. A joint gift may be given to more persons than one, and a gift may be given out of joint property. A gift may be given to, and received from a non-Muslim. It is forbidden to take back what has once been given as a gift. A gift for life is recognized subject to certain conditions. Property may be dedicated as waqf, becoming thus inalienable, or as waqf'ala-l-aulâd. One who receives a gift or any other good from another must give expression to thanks.
1.
Abn Hurairah reported,
The Prophet, peace and blessings of Allâh be on him, said
"O Muslim women! Let not a neighbour despise {p. 326}
for her neighbour (a gift), even though it be the trotters of a goat."
(B. 51:l.)
2.
A'ishah reported,
The Prophet, peace and blessings of Allâh be on him, said:
"Give gifts to one another, for gifts take away rancour."
(Tr-Msh. 12:17.)
3.
Anas said,
Meat was brought to the Messenger of Allâh, peace and blessings of Allâh be on him, and it was said that it was given to Barîrah as a charity. He said:
"For her it is a charity, and for us it is a gift."
(B. 51:7.)
4.
A'ishah said,
The Messenger of Allâh, peace and blessings of Allâh be on him, used to accept a gift and to give a compensation for it. (B. 51:11.)
[1. Barîrah was a freed slave-girl. She sent a gift to the Holy Prophet out of the charity she had received. and the Holy Prophet accepted it.
2. It shows that the Holy Prophet taught the exchanging of gifts.]
{p. 327}
5.
Nu'man said,
My father gave me a gift. 'Amrah bint Rawâhah said, I do not agree until thou make the Messenger of Allâh, peace and blessings of Allâh be on him, witness. So he came to the Messenger of Allâh, peace and blessings of Allâh be on him, and said: I gave a gift to my son from 'Amrah bint Rawâhah, and she has bidden me to make thee a witness, O Messenger of Allâh! He said, "Hast thou given all thy sons the like of it"? He said, No. He said: "Be careful of your duty to Allâh and keep justice between your children." So he returned and took back his gift.
(B. 51:13.)
[3. Bukhârî relates this hadîth to show that having a witness when making a gift was a good practice. 'Amrah was the mother, and it was her son who received the gift. The Prophet disallowed this gift, making it clear that all children should be treated alike.]
{p. 328}
6.
Ibrâhîm said,
The giving of a gift by a man to his wife and by the wife to her husband is lawful. And 'Umar ibn 'Abd al 'Azîz said, They cannot take back (the gifts).
(B. 51:14.)
7.
Asmâ' said,
I said, O Messenger of Allâh I have no property except what Zubair gave to me; can I give (it) as charity?
He said: "Do thou give charity (out of it) and do not withhold it, lest it be withheld from thee."
(B. 51:15.)
8.
Asmâ' said to Qâsim ibn Muhammad and Ibn Abi 'Atîq,
I inherited (some property) in Ghâbah from [4. Asmâ' was Zubair's wife.]
{p. 329}
my sister 'Â'ishah, and Mu'âwiyah offered me a hundred thousand for it this is now for you both. (B. 51:22.)
9.
The Prophet, peace and blessings of Allâh be on him, and his companions gave as a gift to Hawâzin what they had gained from them in war and it was undivided. (B. 51:23.)
10.
Abu Humaid said,
. . . . . . The king of Aila sent a gift to the Prophet, peace and blessings of Allâh be on him, white mare, and he gave him to wear an over-garment. (B. 24:54.)
11.
Asma' said,
My mother came to me in the time of the Messenger of Allâh, peace and blessings of Allâh be on him, and she was an idolatress. So I asked the Messenger of
[5. This is the case of a gift to two (or more) persons jointly. 6. A gift may thus be given out of one share in undivided property. 7. This was a gift from a non-Muslim.]
{p. 330}
Allâh, peace and blessings of Allâh be on him, I said, She is not inclined (to Islâm), may I do good to her? He said, "Yes do good to thy mother." (B. 51:29.)
12.
Ibn 'Abbâs said,
The Prophet, peace and blessings of Allâh be on him, said:
"The man who takes back what he has gifted is like one who returns to his vomit." (B. 51:30.)
13.
Jabir said,
The Prophet, peace and blessings of Allâh be on him, decided in the matter of 'umrâ that it is for him to whom it has been gifted. (B. 51:32 )
[8. This was the case of a gift being given to a non-Muslim. 9. 'Umrâ (from 'amara, he lived) was a pre-Islamic transaction, a man's assigning to another a house for the life of the latter, so that when he died, the property reverted to the heirs of the assignor. A similar transaction was ruqbâ (from raqaba, he waited), by which a man assigned to another a house on condition that if the assignor died first, the house became the property of the assignee, and if the assignee died first, the house reverted to the assignor, as if each waited for the death of the other. Bukhârî does not speak of ruqbâ which, according to the best opinion, is not allowed in Islâm. With regard to 'umrâ, it is agreed that when it is expressly stated that the property shall pass to the heirs of the assignee or when no condition is laid down, it shall be a gift in all respects and shall not revert to the assignor; but when an express condition is laid down that on the death of the. assignee it shall revert to the assignor or his heirs, there are two opinions; firstly, that the transaction shall take effect in accordance with the condition laid down, as if it were a loan; and secondly, that it shall be looked upon as a gift, the condition being dealt with as illegal and unenforceable.]
{p. 331}
14.
Ibn 'Umar reported,
'Umar ibn al-Khattâb got land in Khaibar; so he came to the Prophet, peace and blessings of Allâh be on him, to consult him about it. He said, O Messenger of Allâh! I have got land in Khaibar than which I have never obtained more valuable property; what dost thou advise about it? He said: "If thou likest, make the property itself to remain inalienable, and give (the profit from) it in charity." So 'Umar made it a charity on the condition that it shall not be sold, nor given away as a gift, nor inherited, and made it a charity among the needy and the relatives and to set free slaves and in the way of Allâh and for the travellers and to entertain guests, there being no blame on him who managed it if he {p. 332} ate out of it and made (others) eat, not accumulating wealth thereby. (B. 54:19.)
15.
Usâmah said,
The Messenger of Allâh, peace and blessings of Allâh be on him, said:
"To whomsoever good is done and he says to the doer of it, May Allâh reward thee, he has done his utmost in praising." (Tr-Msh. 12:17.)
[10. The case cited in this hadîth is known as waqf (from waqafa, he stood still or stopped). The property, generally immovable, is in this case not allowed to be sold or otherwise disposed of, only the profits accruing therefrom are dedicated to charitable purposes. But as in this case the relatives are included among those who share in the profits though they may not be needy, it has become the basis for what is more particularly known as waqf 'ala-l-aulâd, i.e., a waqf for the benefit of a man's children. The property is made inalienable and cannot be divided among the heirs, and the profit from it are spent for the benefit of the children, though a part must necessarily be for charitable objects. 11. Jazâka-llâh (may Allâh reward thee) is the best form of thanking a man for any benefit or gift received from him, It is both an expression of thankfulness to him and a pravor for him, and it is the common form which a Muslim thanks another.]
"Woe to the praying ones, who are unmindful of their prayers, who do good to be seen, and withhold small gifts" (107:4-7).
Hibah is the giving of a gift whether it is given to one who is in need or to a well-to-do person and thus it differs from sadaqah which is meant only for the needy though they may be one's relatives. The giving of gifts (including charity) is praised while the withholding of small gifts is denounced as against the spirit of Islam. Stress is laid on developing the spirit of brotherhood by the giving of gifts, great or small as one can find. Even a poor man may give a gift out of the charity he has received. Compensation for a gift received is recommended. The giving of a gift to one child would be an injustice to other children, and it is therefore not allowed. A husband can give a gift to his wife and vice-versa. A wife may give gifts out of the property she has received from her husband. A joint gift may be given to more persons than one, and a gift may be given out of joint property. A gift may be given to, and received from a non-Muslim. It is forbidden to take back what has once been given as a gift. A gift for life is recognized subject to certain conditions. Property may be dedicated as waqf, becoming thus inalienable, or as waqf'ala-l-aulâd. One who receives a gift or any other good from another must give expression to thanks.
1.
Abn Hurairah reported,
The Prophet, peace and blessings of Allâh be on him, said
"O Muslim women! Let not a neighbour despise {p. 326}
for her neighbour (a gift), even though it be the trotters of a goat."
(B. 51:l.)
2.
A'ishah reported,
The Prophet, peace and blessings of Allâh be on him, said:
"Give gifts to one another, for gifts take away rancour."
(Tr-Msh. 12:17.)
3.
Anas said,
Meat was brought to the Messenger of Allâh, peace and blessings of Allâh be on him, and it was said that it was given to Barîrah as a charity. He said:
"For her it is a charity, and for us it is a gift."
(B. 51:7.)
4.
A'ishah said,
The Messenger of Allâh, peace and blessings of Allâh be on him, used to accept a gift and to give a compensation for it. (B. 51:11.)
[1. Barîrah was a freed slave-girl. She sent a gift to the Holy Prophet out of the charity she had received. and the Holy Prophet accepted it.
2. It shows that the Holy Prophet taught the exchanging of gifts.]
{p. 327}
5.
Nu'man said,
My father gave me a gift. 'Amrah bint Rawâhah said, I do not agree until thou make the Messenger of Allâh, peace and blessings of Allâh be on him, witness. So he came to the Messenger of Allâh, peace and blessings of Allâh be on him, and said: I gave a gift to my son from 'Amrah bint Rawâhah, and she has bidden me to make thee a witness, O Messenger of Allâh! He said, "Hast thou given all thy sons the like of it"? He said, No. He said: "Be careful of your duty to Allâh and keep justice between your children." So he returned and took back his gift.
(B. 51:13.)
[3. Bukhârî relates this hadîth to show that having a witness when making a gift was a good practice. 'Amrah was the mother, and it was her son who received the gift. The Prophet disallowed this gift, making it clear that all children should be treated alike.]
{p. 328}
6.
Ibrâhîm said,
The giving of a gift by a man to his wife and by the wife to her husband is lawful. And 'Umar ibn 'Abd al 'Azîz said, They cannot take back (the gifts).
(B. 51:14.)
7.
Asmâ' said,
I said, O Messenger of Allâh I have no property except what Zubair gave to me; can I give (it) as charity?
He said: "Do thou give charity (out of it) and do not withhold it, lest it be withheld from thee."
(B. 51:15.)
8.
Asmâ' said to Qâsim ibn Muhammad and Ibn Abi 'Atîq,
I inherited (some property) in Ghâbah from [4. Asmâ' was Zubair's wife.]
{p. 329}
my sister 'Â'ishah, and Mu'âwiyah offered me a hundred thousand for it this is now for you both. (B. 51:22.)
9.
The Prophet, peace and blessings of Allâh be on him, and his companions gave as a gift to Hawâzin what they had gained from them in war and it was undivided. (B. 51:23.)
10.
Abu Humaid said,
. . . . . . The king of Aila sent a gift to the Prophet, peace and blessings of Allâh be on him, white mare, and he gave him to wear an over-garment. (B. 24:54.)
11.
Asma' said,
My mother came to me in the time of the Messenger of Allâh, peace and blessings of Allâh be on him, and she was an idolatress. So I asked the Messenger of
[5. This is the case of a gift to two (or more) persons jointly. 6. A gift may thus be given out of one share in undivided property. 7. This was a gift from a non-Muslim.]
{p. 330}
Allâh, peace and blessings of Allâh be on him, I said, She is not inclined (to Islâm), may I do good to her? He said, "Yes do good to thy mother." (B. 51:29.)
12.
Ibn 'Abbâs said,
The Prophet, peace and blessings of Allâh be on him, said:
"The man who takes back what he has gifted is like one who returns to his vomit." (B. 51:30.)
13.
Jabir said,
The Prophet, peace and blessings of Allâh be on him, decided in the matter of 'umrâ that it is for him to whom it has been gifted. (B. 51:32 )
[8. This was the case of a gift being given to a non-Muslim. 9. 'Umrâ (from 'amara, he lived) was a pre-Islamic transaction, a man's assigning to another a house for the life of the latter, so that when he died, the property reverted to the heirs of the assignor. A similar transaction was ruqbâ (from raqaba, he waited), by which a man assigned to another a house on condition that if the assignor died first, the house became the property of the assignee, and if the assignee died first, the house reverted to the assignor, as if each waited for the death of the other. Bukhârî does not speak of ruqbâ which, according to the best opinion, is not allowed in Islâm. With regard to 'umrâ, it is agreed that when it is expressly stated that the property shall pass to the heirs of the assignee or when no condition is laid down, it shall be a gift in all respects and shall not revert to the assignor; but when an express condition is laid down that on the death of the. assignee it shall revert to the assignor or his heirs, there are two opinions; firstly, that the transaction shall take effect in accordance with the condition laid down, as if it were a loan; and secondly, that it shall be looked upon as a gift, the condition being dealt with as illegal and unenforceable.]
{p. 331}
14.
Ibn 'Umar reported,
'Umar ibn al-Khattâb got land in Khaibar; so he came to the Prophet, peace and blessings of Allâh be on him, to consult him about it. He said, O Messenger of Allâh! I have got land in Khaibar than which I have never obtained more valuable property; what dost thou advise about it? He said: "If thou likest, make the property itself to remain inalienable, and give (the profit from) it in charity." So 'Umar made it a charity on the condition that it shall not be sold, nor given away as a gift, nor inherited, and made it a charity among the needy and the relatives and to set free slaves and in the way of Allâh and for the travellers and to entertain guests, there being no blame on him who managed it if he {p. 332} ate out of it and made (others) eat, not accumulating wealth thereby. (B. 54:19.)
15.
Usâmah said,
The Messenger of Allâh, peace and blessings of Allâh be on him, said:
"To whomsoever good is done and he says to the doer of it, May Allâh reward thee, he has done his utmost in praising." (Tr-Msh. 12:17.)
[10. The case cited in this hadîth is known as waqf (from waqafa, he stood still or stopped). The property, generally immovable, is in this case not allowed to be sold or otherwise disposed of, only the profits accruing therefrom are dedicated to charitable purposes. But as in this case the relatives are included among those who share in the profits though they may not be needy, it has become the basis for what is more particularly known as waqf 'ala-l-aulâd, i.e., a waqf for the benefit of a man's children. The property is made inalienable and cannot be divided among the heirs, and the profit from it are spent for the benefit of the children, though a part must necessarily be for charitable objects. 11. Jazâka-llâh (may Allâh reward thee) is the best form of thanking a man for any benefit or gift received from him, It is both an expression of thankfulness to him and a pravor for him, and it is the common form which a Muslim thanks another.]
What is Hibah ?
Hibah is gift or sadaqah. Sadaqah is given for the sake of Allah while gift is given out of love or appreciation. ‘Atiyyah is a gift given when one is infirmed or unwell.
Hibah,A Gift of Love
Hibah is one of means to distribute one's assets in Islamic financial planning. It may be used either in one's lifetime or in estate distribution of the deceased. It is very simple, yet influential tool in estate planning in the sense it may influence the portion of some heirs if one executes the hibah when one is about to die. Hibah basically means gift as when prophet Zakariya prayed to his Lord in order to be granted descendants, saying "O my Lord! Grant unto me from thee a progeny that is pure" (Qur'an 3:38).
Hibah is an Arabic term, derived from the word 'habubah', which literally means 'passing' or 'blowing'. In the religious term it means giving one's wealth to others without the expectation of any replacement or exchange with the transferring effect on the ownership. Thus once a hibah is executed, the giver cannot take it back. Like waqf or other charity, hibah is the transfer of property from the giver to the recipient during his lifetime. However hibah in general sense may include Ibra', sadaqa and hadiyah which respectively means release from; releasing one's wealth from his ownership, alms giving; giving part of his wealth to needy, and reward which needs an exchange.
In Islam, the habit of giving and charity has been recommended as Bukhari reported that the prophet peace be upon him says, "Give each other and love each other". Thus it is clear that hibah first of all, is recommended to be given to those whom we love and those who are nearer to us. In this regard, God has arranged the most appropriate recipients of hibah as He says "…and do good to parent, kinfolk, orphan, those in need, neighbors who are near, neighbor who are strangers, the companion by your side, the wayfarer (ye meet), and what your right hand possess: For God loveth not the arrogant, the vainglorious" (Qur'an 4:36).
Hibah is basically recommended among the family first then nearest among the neighbors and so forth. This is evident when Aishah, the wife of the prophet, wished to give one of her two neighbors a gift and asked his advice, he replied, "Give to the one whose door is nearer to you". However it does not means one cannot give a gift to those who are not near and not close to him. One of the reasons to do so is that it will help enhancing the love and special relationship among the members of the family and neighbors, who are in the surroundings.
On the other hands, the prophet peace be upon him reprimanded those who looked down on gift. As Abu Hurayrah narrated that the prophet once said "…none of you should look down upon the gift sent by your neighbor even if it were the trotters of the goat". In this regard, the prophet did not reject any gift except when the law did not permit it as Ahmad, Abu Daud and tirmidzi narrated that prophet once said when a polytheist gave the prophet and he asked him "were you a Muslim? He said no, and the prophet said "I am prohibited to receive a gift from polytheists".
Hibah is the third dimension in estate planning structure; complementing faraid and wasiyyat (will). Hibah may come into discussion when the rule of faraid does not allow some heirs to get the right of inheritance and wasiyyat was not made on him when one is facing the death. It is known that the rules of faraid only apply to Muslims; in the case of different religions between the heirs and the deceased, the heirs will not get anything from the inheritance. Thus hibah may solve the particular circumstances by giving certain portion of his wealth to the heirs who have different religion and particular blocked heirs (heirs who are not entitled to get inheritance, being blocked by other heirs) before he passed away.
Furthermore, in the case of father who wants to give his son more than what he supposes to get in estate planning, the only choice he has is to execute hibah. If he chooses to do it under wasiyyat (will writing), the son is only entitled to one third of the estate. So if the father feels that the son is entitled to get more than a third and wants to ensure that he receive it, the only way is hibah in his lifetime. If this hibah is executed in time where he is about to die, it may be in the form of will writing (wasiyyat). Thus it recommended appointing a professional trustee to execute the hibah. Even though the hibah belongs to the recipient technically, it is trustee who will manage, maintain or dispose of it. One can put condition on the trustee that the hibah is given to the recipient only upon the death of the giver. By doing this, one not only expedites the process of distribution, as the hibah will not be subjected to the laws of faraid, the estate is protected as well. Therefore it will allow the son to legally own the property. As a result, wasiyyat and hibah are devices that we can use to provide for the distribution of our estate upon our death.
Hibah is an Arabic term, derived from the word 'habubah', which literally means 'passing' or 'blowing'. In the religious term it means giving one's wealth to others without the expectation of any replacement or exchange with the transferring effect on the ownership. Thus once a hibah is executed, the giver cannot take it back. Like waqf or other charity, hibah is the transfer of property from the giver to the recipient during his lifetime. However hibah in general sense may include Ibra', sadaqa and hadiyah which respectively means release from; releasing one's wealth from his ownership, alms giving; giving part of his wealth to needy, and reward which needs an exchange.
In Islam, the habit of giving and charity has been recommended as Bukhari reported that the prophet peace be upon him says, "Give each other and love each other". Thus it is clear that hibah first of all, is recommended to be given to those whom we love and those who are nearer to us. In this regard, God has arranged the most appropriate recipients of hibah as He says "…and do good to parent, kinfolk, orphan, those in need, neighbors who are near, neighbor who are strangers, the companion by your side, the wayfarer (ye meet), and what your right hand possess: For God loveth not the arrogant, the vainglorious" (Qur'an 4:36).
Hibah is basically recommended among the family first then nearest among the neighbors and so forth. This is evident when Aishah, the wife of the prophet, wished to give one of her two neighbors a gift and asked his advice, he replied, "Give to the one whose door is nearer to you". However it does not means one cannot give a gift to those who are not near and not close to him. One of the reasons to do so is that it will help enhancing the love and special relationship among the members of the family and neighbors, who are in the surroundings.
On the other hands, the prophet peace be upon him reprimanded those who looked down on gift. As Abu Hurayrah narrated that the prophet once said "…none of you should look down upon the gift sent by your neighbor even if it were the trotters of the goat". In this regard, the prophet did not reject any gift except when the law did not permit it as Ahmad, Abu Daud and tirmidzi narrated that prophet once said when a polytheist gave the prophet and he asked him "were you a Muslim? He said no, and the prophet said "I am prohibited to receive a gift from polytheists".
Hibah is the third dimension in estate planning structure; complementing faraid and wasiyyat (will). Hibah may come into discussion when the rule of faraid does not allow some heirs to get the right of inheritance and wasiyyat was not made on him when one is facing the death. It is known that the rules of faraid only apply to Muslims; in the case of different religions between the heirs and the deceased, the heirs will not get anything from the inheritance. Thus hibah may solve the particular circumstances by giving certain portion of his wealth to the heirs who have different religion and particular blocked heirs (heirs who are not entitled to get inheritance, being blocked by other heirs) before he passed away.
Furthermore, in the case of father who wants to give his son more than what he supposes to get in estate planning, the only choice he has is to execute hibah. If he chooses to do it under wasiyyat (will writing), the son is only entitled to one third of the estate. So if the father feels that the son is entitled to get more than a third and wants to ensure that he receive it, the only way is hibah in his lifetime. If this hibah is executed in time where he is about to die, it may be in the form of will writing (wasiyyat). Thus it recommended appointing a professional trustee to execute the hibah. Even though the hibah belongs to the recipient technically, it is trustee who will manage, maintain or dispose of it. One can put condition on the trustee that the hibah is given to the recipient only upon the death of the giver. By doing this, one not only expedites the process of distribution, as the hibah will not be subjected to the laws of faraid, the estate is protected as well. Therefore it will allow the son to legally own the property. As a result, wasiyyat and hibah are devices that we can use to provide for the distribution of our estate upon our death.
Hibah(Gift)
Hibah is the giving of a gift whether it is given to one who is in need or to a well-to-do person, and thus it differs from sadaqah which is meant only for the needy though they may be one's relatives. The giving of gifts (including charity) is praised, while the withholding of small gifts is denounced as against the spirit of Islam. Stress is laid on developing the spirit of brotherhood by the giving of gifts, great or small as one can find. Even a poor man may give a gift out of the charity he has received. Compensation for a gift received is recommended. The giving of a gift to one child would be an injustice to other children, and it is therefore not allowed. A husband can give a gift to his wife and vice-versa. A wife may give gifts out of the property she has received from her husband. A joint gift may be given to more persons than one, and a gift may be given out of joint property. A gift may be given to, and received from, a non-Muslim. It is forbidden to take back what has once been given as a gift. A gift for life is recognized subject to certain conditions. Property may be dedicated as waqf, becoming thus inalienable, or as waqf `ala-l-aulad. One who receives a gift or any other good from another must give expression to thanks.
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