Hiba: the gift

Legislated by the Book, the Sunna and consensus

The hiba (gift) rests on « if they gladly give you something of themselves, eat it with pleasure » (Surah an-Nisa, 4) and « gives wealth out of love for relatives, the orphan, the needy and the wayfarer » (Surah al-Baqara, 177). The Prophet (peace and blessings of Allah be upon him) said: « Exchange gifts, you will love one another » (reported by al-Bukhari in al-Adab al-Mufrad 594), accepted the offered sheep's foreleg (al-Bukhari 4883), and ordered none to despise a neighbour's gift, even a sheep's hoof (al-Bukhari 2427, Muslim 1030). Consensus on its being recommended is reported by al-Imrani, Ibn al-Mundhir, ad-Damiri and ash-Shirbini.

Acceptance

Hanafis of the school, Malikis, Shafiites of the school and one Hanbali way require it: a gift is a contract, and none may impose a wealth on another without his consent. Cited exceptions: the cloak thrown by force upon a woman is hers, the ruler's present to emirs and judges is taken without acceptance, a father adorning his young child makes it the child's wealth. Hanafis by equity, Hanbalis of the school and some Shafiites dispense with it: serving the meal to the guest (Muslim 1722, 1723) and Sa'lab ibn Jaththama's offering of a wild donkey, which the Prophet refused without the name of gift being erased, prove that significant acts suffice.

The gift is perfected only by taking

The majority (Hanafis, one Maliki line, Shafiites at the later stage, Hanbalis of the school) bind only with the donee's taking; before it, the donor keeps his wealth and may return. Dominant Malikis and early al-Shafii bind at the contract, taking completing only perfection: the donee may claim and compel the donor, unless the latter has gone bankrupt. Either party's death before taking voids the gift: Abu Bakr told Aisha of camels given but not yet taken: « It would then be the heir's wealth » (reported by Malik, Muwatta 1438), and Umar condemned such gifts taken back depending on which death occurred (Muwatta 1439).

The donor's return

Return into the gift is open only to the father for his child, per the hadith: « It is not lawful for a man to give then take back, except the father regarding what he gives his child » (Abu Dawud 3539, at-Tirmidhi 1298, an-Nasa'i 3960). On the mother: Malikis admit it while the father lives; Shafiites of the school and one Hanbali way make her like the father; Hanbalis of the text and one Shafii way deny her. On grandfather or grandmother: some Malikis and the famous Shafii school assimilate them to the father; dominant Malikis, opposite Shafiites and Hanbalis reserve return to the father alone, Ibn al-Qayyim demonstrating the weakness of the hadiths extending return.