In Muslim law, gift is usually called hiba. However, reality is that there is some difference between concept of gift and concept of hiba. Under all other systems of law, there cannot be any consideration or exchange in transaction of gift. Contrary to this, Muslim law recognizes a gift with an exchange or for consideration. Under Muslim law, gift with an exchange or consideration is called hiba-bi-iwaz.
Hiba means gift and Iwaz means consideration or return. Therefore, hiba-bil-iwaz, is a gift with an exchange or a gift for consideration. Explanation
(3) Following points are important for explanation of hiba-bil-iwaz:
- (i) Kind of hiba
- (ii) Essentials of hiba-bil-iwaz
- (iii) Difference between hiba-bil-iwaz & areeat
- (iv) Difference between hiba-bil-iwaz & sadaqa
- (v) Difference between hiba-bil-iwaz & hiba
- (vi) ba-shart-ul-iwaz
- (vii) Hiba-bil-iwaz & sale
(i) Kind Of Hiba
Hiba-bil-iwaz is a kind of hiba under Muslim law.
(ii) Essentials Of Hiba-bil-Iwaz
Followings are main essentials of hiba-bil-iwaz:
(b-i) Gift with exchange or for consideration
An essential of hiba-bil-iwaz is that there should be a gift for something in return, and such thing should be returned either in form of exchange or in form consideration.
(b-ii) Complete & valid gift
For hiba-bil-iwaz, it is necessary that there should be a complete and valid gift. It reveals that essential conditions for gift should also be fulfilled in case of hiba-bil-iwaz. And these conditions are declaration, acceptance and delivery of possession.
(b-iii) Payment of consideration
For hiba-bil-iwaz, it is also essential that there should be actual payment of consideration from donee to donor.
(iii) Difference Between Hiba-bil-Iwaz & Areeat
When person grants another right of use or right of enjoyment of a property, and such right is granted without any consideration, it is called areeat. Thus, main difference between hiba-bil-iwaz and areeat is presence or non-presence of consideration.
(iv) Difference Between Hiba-bil-Iwaz & Sadaqa
When a person makes gift of some property with object of acquiring some religious or spiritual benefit or merit, it is called sadaqa. It reveals that their objectives make some difference between hiba-bil-iwaz and sadaqa.
(v) Difference Between Hiba-bil-Iwaz & Hiba Ba Dhart-ul-Iwaz
When gift is made with some condition or stipulation for return, transaction is called hiba-ba-shart-ul-iwaz. It reveals that main difference between hiba-bil-iwaz and hiba-ba-shart-ul-iwaz is presence or non presence of condition or stipulation.
(vii) Hiba-bil-Iwaz & Sale
Hiba-bil-iwaz becomes sale if consideration is money or hiba-bil-iwaz becomes sale when money is paid in exchange.
To conclude, it can be stated that there can be two transactions as far as hiba-bil-iwaz is concerned. Through first transaction, donor makes complete and valid gift to donce, and donee makes exchange or pays consideration to donor through second transaction.