Law of Gift

A gift is discretionary, it is not an obligation and compensation or consideration may not be given. If the subject matter of the gift is consumed by use (fungible) or sold by weight or volume, then ownership passes and the gift may not be limited in time. Otherwise a temporal and/or conditional gift is possible.

The following four elements must be present:

1) parties, 2) subject matter, 3) offer and acceptance, 4) receipt, i.e. possession of the subject matter by the recipient

1) Parties

The usual requirements of majority age and competence apply to the giver of the gift.

2) Subject matter

  • must be existent at the time of giving
  • must be owned by the giver of the gift; it must be unencumbered property
  • must be property of value
  • may be money, gold or silver
  • may be other physical things

3) Offer and acceptance

  • these elements are the same as at contract law
  • no express language is required
  • may be by conduct as understood by custom
  • some schools of law do not consider acceptance a necessary element

4) Receipt

  • ownership passes with possession
  • there is no distinction in Islamic law between legal and beneficial ownership so no issues of trusts, or failed trusts, arise
  • the recipient has absolute discretion on the use or transfer of the gift

Rescinding a gift is discouraged but not illegal.

 

Mejelle, 7th Book, Preface-Technical Terms Relating to Hiba and Chapters I-II.