Hiba (gift: its pillars, the parties, the thing given, possession, return and conditions)

هِبَة

Hiba in the lexical sense is giving a thing to another without return; technically it is transferring property without return at once. ¹ It differs from the wider atiya, from hadiya in that most jurists require acceptance in a gift, and from sadaqa, which seeks reward in the hereafter. ^{1 2} Gifts are lawful by the Qur'an, the sunna and consensus, recommended, forbidden when meant for sin, aid to wrongdoing or bribery, and disliked when meant for show. ^{2 3} The pillars are, for most jurists, the two parties, the thing given and the formula; for the Hanafis only the formula. The donor must be competent; the schools differ on the debt-bound, the feeble-minded, a dying man's gift beyond a third, and a father's gift of his son's property for a return. ^{3 4} The gift of an unauthorized donor is void for most, suspended on approval for the Hanafis; a drunkard's gift depends on whether the drink was lawful. ^{5 6} The thing given must exist, be owned by the donor and have value; most jurists disallow gifts of the non-existent or unknown, while the Malikis allow what can be moved. The schools differ on giving a debt to a third party and on an undivided share. ^{7 8 9 10} On possession: the Hanafis, Shafi'is and one Hanbali view require it, with donor's leave and no encumbrance; the Malikis hold the gift binding by the contract, and a Hanbali view accepts an unpossessed gift of what is not measured. ^{11 12 13 14} On the formula: the Hanafis count the offer alone as the pillar, the majority the offer and acceptance; acceptance may be by act; delayed acceptance is allowed by the Malikis and Hanbalis; a conditional gift is refused by the Hanafis, Shafi'is and Hanbalis. ^{15 16 17 18} Conditions attached to a gift: the majority void an invalid condition and keep the gift; the Malikis, Shafi'is and one Hanbali view void both. ^{19 20} A gift for a return: most jurists allow it, the Shafi'is in the weaker view and one Hanbali view forbid it; its nature is a sale by the Malikis, Shafi'is and Hanbalis, and a gift begun and sale completed by the Hanafis. ^{21 22 23 24} Whether a return is due without stipulation: the Hanafis, Shafi'is and the Hanbali school do not require it except by statement; the Malikis and one Hanbali view require it by custom. ^{25 26 27 28} Retraction: the majority forbid it except for the father in his son's gift; the Malikis extend it to the mother and ascendants; the Hanafis allow it with disapproval. ^{29 30} Impediments to retraction: for the Hanafis, the thing's destruction, its passing out of the donee's hands, a joined increase, a return, kinship, marriage, alms, the death of either party, or change in the thing; for the Malikis, an increase or decline, a debt contracted on account of the gift, or the donee's illness; for the Shafi'is, leaving the donee's control; for the Hanbalis, leaving his ownership, others' interest in it, or an increase. ^{31 32 33 34 35} A retraction is a dissolution for the Hanafis when made by judgment or by mutual consent (Zufar holds consent a new gift); the retracted thing returns to the donor, and the donee who holds it after retraction is not liable unless he exceeded. ^{36 36}