Fatwa concerningQabd in Hibah and the insertion of Qabd element in States Fatwa in Malaysia
Muhammad Fathullah Al Haq bin Muhamad Asni; Jasni bin Sulong

Hibah is an instrument in Islamic laws dealing with the voluntary transfer of property (tabarru’). Islamic scholars have reached consensus that in the act oftransfer of property,hibah requires offer (ijab) from the donor and acceptance (qabul)of offer from the grantee to ratify the transfer of property(Mawhub) to the grantee. The fuqaha’ hold two contrary views on the need for actual transfer of property (qabd) as a requirement to ratify the transfer in grants. The first group seesqabd as a requirement of the hibah contract and the other group hold that qabd is not necessary to complete the hibah contract. From the legislative perspective of law, the existence of differing Fuqaha’ opinions which directly result in unstandardised Islamic laws will in turn lead to uncertainties in the implementation of legislation and injustice. Therefore, this research explore the application of both sides of the opinions through examining the fatwa decided by each State Mufti Department in Malaysia. This is because, in the administration of law and the enforcement fatwa, only one opinion should be selected for inclusion as the adopted opinions to ensure consistency in the implementation of law. This research was conducted qualitatively by referring to the debate in the books of fiqh, Malaysian legal provisions, state fatwa, interviews conducted with Mufti from different states and scholarly works. The study found that the majority of the fuqaha’ opined that qabd element is a requirement to complete thehibah contract and therefore this opinion is considered the right opinion (rajih). The study also found that the majority of Muslim countries adopt qabd element in their hibah law as stated in the fatwa of the respective countries. Hence,qabd is an important element and is a precondition to confirm the hibah. Any hibah made is not valid qabd has took place. According to findings from this study, each state should enact standardised fatwa so that there is uniformity and consistency in the enforcement of fatwa and in the making of related decision regarding the hibah.

Full Text: PDF     DOI: 10.15640/jisc.v4n1a17