HIBAH , Escape Mechanism from Faraid

Regardless what the ulama and traditional islamic defenders say, Faraid or mawarith has an inherent limitation.

• We cannot decide who will receive at our own discretion, yes, faraid allow we to freely decide, but up to 1/3 only. This 1/3 is called Wassiah or will.
• We cannot decide decide how much each will receive, we can up to 1/3 only (Will).
• Faraid has rules that disallow the further relatives to take estate if deceased has children, that’s great breakthrough in most societies. But there are issues regarding the inequality between son and daughter.
• Wives who have no children, will see their husband”s estate will go to outsiders such as husband’s sibling, this will be a loss if the husband’s siblings are greedy people who refuse to give back the estate to the wives.
• Even if the wives have children, the problem is if they only have daughters but have no son. Son will usually take the remaining estate, so no balance for outsiders. Without son, wives and daughters only take part of estate, and remaining goes to outsider.

No such limitation exist in hibah, because in this case the owner divests himself of all rights in the property immediately, Faraid and wassiah are largely related to the distribution of property after death of the owner. As not to compromise or contravene with the rules of Islamic law of succession and bequest, many Muslims are reluctant to use hibah as an alternative. This is due to the fact that wassiah and faraid are seen to be the only tool available to them and also due to the lack of knowledge and the very fact of the existence of hibah does not cross the mind of many Muslims in Malaysia.

Hibah is seen as the best solution of the above proposal since the property can be transferred to family members with terms and conditions merely decided by the donor himself, and, of course with the agreement of the other heirs or would be beneficiaries.

Property management, which is personal in nature such as hibah and bequest, is thought not being as important as commercial property management in the real meaning of business. An average Muslim may own some properties such as a house, several pieces of land, shares, savings and goods such as vehicles or machinery.

Even with that little properties they have, Muslims are not so particular or do not take seriously the management of their properties while they are alive. Knowing that after their death, their heirs and beneficiaries will be taken care of, as there is existing system of law such as faraid that will take care with the property disposition of the deceased.

Hibah can be in the form of goods, services or any valuable property. It may be movable property such as machinery, gold and vehicle or immovable property such as land, houses and buildings. Other than the above, other properties such as crops, animals, miscellaneous wealth such as life insurance policy, company shares, unit trust, and employees’ provident fund are capable of being hibah.

Immovable properties such as houses, buildings and land, while movable properties such as machineries, vehicles, business shares etc all fall in the category of valuable properties. While properties such as fruits, trees, animals etc all fall into the category of goods that are also capable of being an item for hibah. This includes negotiable instruments, proprietary rights, land under attachment and the right of redemption.

One of the commonest problems in this concept is the lack of understanding of hibah itself among the Muslim community in the country. Muslims in the street generally had not heard of the term hibah.

This narrow and shallow understanding was caused by lack of awareness, lack of guidelines by the relevant authorities and also lack of suitable and usable 3 instruments of doing it. The relevant authorities share some of the weakness by their lack of support and cooperation in the practice of hibah. There had been no enactment or provisions in the existing laws of property distribution about hibah, as though this concept had not been in existence at all.

The concept and meaning of hibah is very wide. Most of us had in the past practiced hibah in one way or another without even knowing it. Hibah is not yet well rooted in the property disposition system in the country, but it has some potential to be one. Little efforts are being made for hibah to become a truly viable alternative property disposition system.

Innovation and creativity are acceptable in Islam as long the basic principle of the Quran and Sunnah are being maintained. This means that Muslim can adopt whatever form of doing business transaction while maintaining the rules of the Quran and the Sunnah.. In this context, whatever conventional instruments of dealing were not against the views of Islam and the principles of the syariah were adopted, while those, which were against, were left out or being modified and adjusted so as to agree with the syariah principles. Such innovations have been used aggressively in creation of Islamic banking and insurance / takaful.

The 2 main sources of Islamic Land Law governing property are:

(i) The Holy Quran, the book of Allah
(ii) Sunnah, as the tradition of the Prophet SAW
(iii) Additional but subsidiary sources of Islamic law such as al-ijma, alqiyas, istihsan, istihlah, maslaha mursala, urf and custom (adat).

It should be considered that the Holy Quran, which is God’s word, as the first and supreme source of Islamic Syariah. Hadith stands second as it is the ‘hidden revelation’.

2 Other sources are the:

(i) Al-ijma, it can be defined as the consensus of opinion of the companions of the Prophet and the agreement reached on the decision taken by the learned Muftis or the jurists on various Islamic matters after the death of the Prophet SAW.

(ii) Al-qiyas, reasoning by analogy, or analogical deduction. It is the legal principle introduced in order to derive at a logical conclusion of a certain law on a certain issue. It also must be based on the Quran and Sunnah.

(iii) Istihsan, Istihlah, and Maslaha mursala are referred to public interest. Istihsan means equitable preference to find a just solution, while istihlah means seeking the best solution for general interest.

(iv) Custom, urf and adat are also recognized as a subsidiary source of all school of Jurisprudence. These rules are normally used when there are no provisions on the matter in the Quran and the Sunnah. If any of the customs contradicts any other rules of the Syariah, they will be considered outside the pale of Islamic Law.

Hibah means gift from one living person to another person or organization whether or not being family members, stranger, Muslim and non Muslim (without neglecting the rights of his descendants and near relatives) which must be an immediate and qualified transfer of the corpus of a determined property without any consideration (iwad).

Bequest (will or wassiah) and hibah are similar in a sense as bequest is an unequivocal expression of will by a person for the transfer of his property or its profits without considerations, in favor of any persons or any institutions, to take effect after his death, permanently or for a fixed period. Nevertheless, hibah is different from wassiah (islamic will) , for in wassiah alienation of property occurs after the death of the donor, and in hibah it occurs immediately.

It is not allowed for a person to revoke a hibah after the beneficiary has accepted it. In wassiah (will) however revocation of the gift is allowed. In addition, one only can donate up to 1/3 of the property, but no such limitation is imposed on hibah. The reason for this is that in the case of hibah the donor divest himself of all rights in the property immediately, while in the case of a wassiah not the owner but the heirs are deprived.

Hibah at Mard al Maut (death-bed illness)

You see, will or wassiah is limited to 1/3, but hibah or irrevocable gift (during living) has no limit. There is a borderline between wassiah (death will) and hibah (living gift). This cut-off is called Mard al Maut. Mard al maut means death sickness, which means that the would-be donor had become too ill from which he eventually dies.

The word mard al maut means an illness which may cause death, where the sickness itself may discourage the sufferer (man) from viewing whatever problems he has outside his house, and for women sufferers whatever is in her home. The sufferer may eventually die after being bedridden or otherwise within one year.

For a sickness to be regarded as mard al maut the following conditions should be fulfilled:

(i) death of the donor looks inevitable
(ii) the disease is likely to cause death
(iii) the disease would bring the fear of death
(iv) there is outside fear that the disease is serious
(v) Death that is being expected due to the disease could happen in one year or
after one year, if the disease becomes more serious.

Condition for Valid Hibah at Mard al Maut

The power of the owner to dispose his property, during marad al-maut, is limited under Islamic law. The wishes of the owner especially if he dies immediately after his ijab (binding agreement), and before being accepted by the donee is considered as a wassiah and is categorized under the principles of wassiah; therefore the following conditions shall apply:

(i) The donated property shall be not more than 1/3 of the property of the donor
(ii) the offer is not given to any heir unless other heirs agree

There are a few provisions about hibah at mard al maut:

(i) When a man who does not have any heir to his property, gives hibah of his entire property during mard al maut and later accepted by the donee, the hibah is considered as valid. After his death the ruler of the country cannot include his property under the rule of inheritance or a legacy;

(ii) When a husband hibah his entire property to his wife at mard al maut and at the same time he has no other heirs except being husband and wife, they only had each other to inherit their property, the hibah is valid.

(iii) When a man hibah his entire property to one of his heirs while he was at mard al maut and after his death other heirs do not agree to it, then the hibah is only valid to the extent of one third of the property. If he recovers from the disease then the hibah is valid. This is due to the fact that the hibah he made though expressed to take effect during his lifetime is really intended to be a testamentary disposition and can only take effect as such.

(iv) When a man is indebted and hibah his property while he was at mard al maut and later accepted, therefore the hibah becomes invalid, because the property should be used to pay his debtors.

When a person wishes to hibah a property to another person during mard al maut, while at that time he has no heir to his property, if the offer is accepted then the hibah is legal. The baitul-mal, as entrusted with his estate, after the death of the donor cannot interfere as having charge of the deceased estate.
Similarly if a man who has no heirs except his wife, on his death bed, donate all his property to his wife, the hibah is valid, and the baitul-mal cannot interfere. In case the deceased is succeeded by heirs, his hibah of a property to one of his heirs, during mard al maut, if contested other heirs later, is invalid.
But, if he has made a hibah and has delivered it to a person who is not his heir, the hibah is valid if it comprised one third of his property, but if it is more than a third of his property, the donee is liable to return the remaining.