The Opinions of Hanafite and Shafi'ite Scholars on Withdrawal of Treasure that Had Been Made as Hibah (A Comparative Study)

Abstract

Hibah is provision of property right of an item (property) from one person to another when the provider is still alive without expecting any compensation. In daily life, people cannot be separated from the act of helping each other and giving. Hibah is one of those activities. Unfortunately, many people do not pay attention to ownership right of item/property that has been granted. Sometimes, a person who has provided his/her fortune wants to take the fortune again with or without reason. Basically, a hibah cannot be canceled. A hibah also cannot be withdrawn unless there are things that allow hibah to be withdrawn. This study aims to determine the opinions of Hanafite and Shafi'ite scholars about withdrawal of property that has been made as hibah. It covers the differences and similarities of the opinions of the scholars of the two schools. The method used in this research is descriptive-comparative. This study is a research library. Therefore, the data collection technique is done by the study of literature. The sources of data include books, literature, the Quran verses, hadith, and books of fiqh. After the data examination, it is known that according to Hanafite scholar, someone who has made her/his property as hibah may draw back the property. According to the opinion, the provider is entitled to the provided property. Therefore, she/he is allowed to pull back the treasure that had been made as hibah. However, the Hanafite scholars do not allow someone to pull back the hibah that has been given to the relatives of the providers. If someone made her/his property as hibah for the people who are still in the same nasab line with him/her, then the right to withdraw the hibah had fallen. Nevertheless, when someone make her/his own property as hibah for another person or people who are not in the same nasab line with him/her, then it is permissible for the donor to withdraw it. Meanwhile, according to Shafi'ite scholars, someone who has made her/his property as hibah for other persons cannot pull back the property, except for the hibah from a father to his son, or the hibah from a mother, a grandmother, and a grandfather. The Shafi'ite scholars forbid someone to pull back the hibah that has been given to someone else, because it can humiliate the receiver.