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.

The most important point to note is that a gift takes place during the lifetime of both the donor and the donee, which distinguishes it from a will. Among its requirements are both offer and acceptance, as well as the requirement of possession, and its form must be concluded during the lifetime of the parties. In some cases, a person suffering from a terminal illness concludes a gift contract; however, according to the consensus of the jurists of the four schools of Islamic jurisprudence, such a gift is considered a will. With reference to Islamic jurisprudence, the prevailing definition of a terminal illness is: “An illness in which death is highly likely to occur, which renders the person incapable of attending to their affairs, and which is actually followed by death, even if the patient dies for another reason, such as an accident, provided that the death occurs during the course of the illness.” The Algerian legislator has likewise followed Islamic Sharia, as Article 204 of the Algerian Family Code, as amended by Ordinance No. 05-02, provides as follows: “A gift made during a terminal illness, as well as during serious illnesses and circumstances, shall be considered a will.”

The jurists of the four schools of Islamic jurisprudence, including the Maliki school, restricted the dispositions of a person suffering from a terminal illness in order to protect the rights of the heirs and prevent circumvention. Moreover, the severity of the illness and its impact on the patient may frighten and overwhelm them, thereby impairing their ability to fully comprehend their dispositions. This means that the freedom of the donor becomes restricted from the onset of the terminal illness. The majority of jurists have held that a gift made by a donor suffering from a terminal illness is subject to the legal ruling governing a will and is therefore governed by its provisions, including the prohibition against bequeathing more than one-third of the estate and the prohibition against making a bequest to an heir, while allowing the heirs to approve such dispositions.

This is the approach adopted by the Algerian legislator, who has departed from the position taken by most Arab legal systems by relying on the Maliki view concerning the approval of the heirs, pursuant to Article 189 of the Algerian Family Code, which provides: “There shall be no bequest to an heir unless the heirs approve it.”

In contrast, the Moroccan legislator prohibits a bequest to an heir and renders it absolutely null and void; such a bequest cannot be validated by the heirs’ approval after the death of the testator.