Gift (Hibah) During the Death Illness in Islamic Jurisprudence and the Algerian Family Law

Abstract

The contract of gift is considered one of the voluntary sources of obligations. It constitutes a gratuitous contract during the donor’s lifetime and is recommended under Islamic law. A gift (hibah) is the transfer of ownership of property by one person to another during their lifetime, without consideration or compensation. Linguistically, hibah means a gift granted without consideration or purpose; when such gifts are given abundantly, the giver is described as Wahhab, one of the forms denoting intensification.
The Qur’an states: “He grants females to whom He wills and grants males to whom He wills.” The Maliki school of jurisprudence also defines a gift as follows: “It is the donation of property during one’s lifetime, and it is recommended and concluded by any statement or act that indicates it.”
It is well established that gifts (hibah), charitable donations (sadaqah), and presents (atiyyah) differ from one another. The Prophet, peace and blessings be upon him, used to accept gifts but did not accept charity. The term sadaqah is used to refer to a gift intended for the sake of Allah Almighty, whereas the term hadiyyah (present) refers to a gift intended to draw closer to a person and express affection toward them, as stated by the Prophet, peace and blessings be upon him: “Give gifts to one another, and you will love one another.” Thus, the gift constitutes a means of transferring ownership, whereby the gifted property passes from the donor’s estate to that of the donee; consequently, the donor’s estate is diminished while that of the donee is increased.