Abstract
Hibah is one of the voluntary contracts in the Islamic law. Transferability through hibah requires the rigid conditions regarding the ownership status of the hibah property. However, these conditions can be avoided by using the principle of the promise of hibah. The main objective of this article is to highlight “promise of hibah” concept as an alternative instrument of estate/property planning existing in Islamic teaching. This article explains about the promise of hibah from the perspective of Islamic law. The discussion began with a review of the status of ‘promise’ in the matter of the contract. Hence the promise of hibah concept, formation and implementation was discussed by taking into account the views of scholars from various schools of thought in the Islamic law and the current practices in Muslim countries. This research use content analysis approach where data is gathered from several primary sources in Islamic law. In terms of implementation of hibah concept, several law existing in Islamic country that has codify hibah in their law is used as reference. DOI: 10.5901/mjss.2016.v7n4p135
Highlights
Hibah is a property transaction contracts that applies between the giver of hibah and the receiver as a gift
Pillars of the hibah are the giver, the receiver, the hibah property and sighah. In addition to these pillars, the element that is necessary to make the hibah coming into operation is when there is an ownership transfer of the donated property
It is known that Islamic law in theory have multiple point of view according to different Islamic jurisprudence
Summary
Hibah (or gift) is a property transaction contracts that applies between the giver of hibah and the receiver as a gift. Due to the hibah is a contract, its formation is depends on the subject of some elements or pillars that must be met. Pillars of the hibah are the giver, the receiver, the hibah property and sighah (ijab and qabul). In addition to these pillars, the element that is necessary to make the hibah coming into operation is when there is an ownership transfer of the donated property (or commonly known as qabd) (al-Nawawi, 2003; al-Khatib, n.d.; al-Kasani, 2003; al-Jank, 2004; Nasrul Hisyam, 2009; Laluddin, 2012; Fyzee, 1974). How about the position of hibah when the property owner had promised to donate his property to other person in a timely manner?
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