Hibah Act (CAP.225)

HV8IH SZZ XUdVH3 LAWS OF BRUNEI Hibah CAP. 225 3 LAWS OF BRUNEI REVISED EDITION 2021 CHAPTER 225 HIBAH ARRANGEMENT OF SECTIONS Section PART 1 PRELIMINARY 1. Citation 2. Interpretation 3. Application 4. Exclusive jurisdiction PART 2 HIBA H 5. Conditions for valid hibah 6. Hibah be made orally, in writing or by gesture 7. Contingent hibah 8. Conditional hibah 9. No formal delivery of hibah 10. Hibah of debt B.L. R.O. 3 2021 LAWS OF BRUNEI 4 CAP. 225 Hibah Hibah of undivided property Hibah under circumstances of marad-al-maul PART 3 DONOR Conditions for donor Hibah by agent Hibah by receiver of wadi 'ah PART 4 DONEE Donee Hibah to minor, insane person or sufih PART 5 GENERAL Hibah for purposes contrary to Hukum Syara ' Effect of valid hibah Revocation Hibah with condition of exchange Regulations SCHEDULE - WORDS, EXPRESSIONS AND ARABIC SCRIPT LAWS OF BRUNEI Hibah CAP. 225 5 HIBAH ACT An Act to make provision for the law governing hibah and for matters connected therewith or incidental thereto. Commencement: 1st January 201 9 [S 1/2019] PART 1 PRELIMINARY Citation 1. This Act may be cited as the Hibah Act. Interpretation 2. (1) In this Act, unless the context otherwise requires - bbdon~r" means a person who makes a hibah; "hibah" means the transfer of the possession of a property of the donor made voluntarily and without any consideration by the donor to the donee during the lifetime of the donor; "Hukum Syara'" means the laws of any sects which the Syariah Court considers valid by prioritising the Shafeite sect that has been accepted (qaul muktamad); "marad-al-maut" means illness which ordinarily causes death; "Minister" means the Minister of Religious Affairs; "parent" means mother or father, and includes their ascendants; L b p ~ ~ ~ e ~ ~ i o n " means the power to exercise exclusive control over a property for the purpose of deriving from it such benefit as it is capable of rendering, or is usually derived from it, by reason of having a right on that property; "property" means any valuable and saleable thing according to Hukum Syara', but does not include debt for the purpose of making a hibah thereof to any person except the debtor; B.L.R.O. 3 2021 LAWS OF BRUNEI 6 CAP. 225 Hibah "safih" means a person who recklessly spends his property in an inappropriate and unreasonable manner; "Syariah Court" means the Syariah Subordinate Court, the Syariah High Court or the Syariah Appeal Court, as the case may be, established under section 6(1) of the Syariah Courts Act (Chapter 184); "wyadi 'uh" means property vested in a person, not being the owner of such property, for the purpose of custody and trust. (2) Any provision or interpretation of any provision in this Act that is inconsistent with Hukum Syara' shall be invalid to the extent of such inconsistency. (3) In relation to any matter which is not expressly provided for in this Act, the Syariah Court shall apply Hukum Syara '. (4) All words and expressions used in this Act and not defined therein but defined in the Interpretation and General Clauses Act (Chapter 4) shall have the meanings respectively assigned thereto in that Act to the extent that they do not conflict with Hukum Syara '. (5) For the avoidance of doubt as to the identity or interpretation of any word and expression used in this Act and listed in the Schedule, reference may be made to the original form in Arabic script with respect to that word and expression shown against it in the Schedule. Application 3. Notwithstanding anything to the contrary in any other written law, this Act applies to all matters in which at least one of the parties professes the Islamic religion. Exclusive jurisdiction 4. It is hereby declared that no court, other than a Syariah Court shall have jurisdiction to hear or determine any matter in which at least one of the parties professes the Islamic religion and which relates to any matter arising in this Act. LAWS OF BRUNEI Hibah CAP. 225 7 PART 2 HIBA H Conditions for valid hibah 5. A hibah shall not be valid unless - (a) the property belongs to the donor; (b) declaration of the hibah is made, either expressly or impliedly, by or on behalf of the donor; (c) acceptance of the hibah is made. either expressly or impliedly. by or on behalf of the donee; (4 the possession of the property is delivered by the donor to the donee either physically or symbolically depending on the nature of such property; (e) the property is a determinate property and not its usufruct only; and (fl the property exists at the time the hibah is made. Illustrations (a) A said to B by the pronouncement "I give you this thing". then B said "I accept". The hibah is expressly accepted. (b) A said to B "These are your clothes". B then holds those clothes. The hibah is impliedly accepted. (c) A said to B with the pronouncement "1 give this house to you". Hence that house is a hibah from a detenninate property where A makes a hibah to B of the house as a whole and not just to reside in it. (d) A makes a hibah to B of fruits that may be produced by his orchard this year. The hibah is not valid because that property does not exist at the time the hibah is made. (e) A makes a hibah to B of a lamb which is still in its mother's womb. The hihah is not valid because that property does not exist at the time the hibah is made. a Hibah be made orally, in writing or by gesture 6. ( 1 ) Hibah may be made either orally or in writing: B L.R.O. 3 2021 LAWS OF BRUNEI 8 CAP. 225 Hibah Provided that if a donor is incapable of such, a hibah may be made in any intelligible gesture. (2) A hibuh made under subsection (1) shall be witnessed by at least two persons. (3) A hibuh made in writing may be signed by, or on behalf of, the donor. Contingent ltibah 7. Any hibah which is dependent on the occurrence or non-occurrence of an uncertain future event is not valid. (a) A makes a hibah to B of a house if B is married. The hibah is not valid. (b) A makes hibah to B of fruits if its yield is good this year. The hibah is not valid. Conditional ltibah 8. Where a donor makes a hibah to a donee with conditions or restrictions as to the possession, disposal or use of the property, the conditions or restrictions shall be void but the hibah shall be valid and the donee shall have absolute ownership of that property. (a) A makes a hibah to B of a house with the condition that it is for B's lifetime only and when B dies the house will revert to A. The hibah is valid but the condition is void and B shall have absolute ownership of the house and after the death of B, the house will be for B's heirs. and if B has no heirs, that house will be for Bai/ulnzal. (b) A makes a hibah to B of a house with the condition that if B dies before A. the house will revert to A and if A dies before B, the house will be for B. The hibah is valid but the condition is void and B is the absolute owner of the house and after the death of B, the house will be for B's heirs and if B has no heirs, the house will be for Baitulmal. (c) A makes a hibah to B of a house with the condition that B and his heirs will not sell that house. The condition is void but the hibah is valid and B shall have the absolute ownership of the house. No formal delivery of ltibalt 9. Hibah shall be validated by declaration and acceptance without the need for formal delivery of possession if - LAWS OF BRUNEI Hibah CAP. 225 9 (a) the hibuh is given to receiver of wadi 'ah when the property is in his custody; (b) the hibah is given to a tenant of that property; or (c) both the donor and the donee reside in the same property when the hibah was made. Hibnh of debt 10. A hibah of debt made by a creditor to his debtor shall amount to remission of the debt payable by the donee. Explanation - A hibah of debt made by the creditor to any other person other than his debtor shall not be valid. Hibah of undivided property 11. (1) Property given to two or more donees is valid notwithstanding that property has not been divided respectively to each of the donees. ( 2 ) A hibah of property jointly owned by two or more persons is valid notwithstanding that at the time the hibah was made the property has not been divided or determined respectively to each of them. Illustrations (a) A makes a hibah to B and C of a house without first dividing it. B and C accepted the house. The hibah is valid notwithstanding each of their portion has not been determined. (b) A and B own some amount of money as a result of profit from their business. That money has not been divided and detennined to each of them and B said to C "I hibah to you the portion that I am entitled to receive". The hibah is valid notwithstanding each portion has not been determined. Hibah under circumstances of marad-al-mnut 12. Where at the time hibah is made the donor is in a state of marad-al- maut, the hibah shall be valid to the extent of one-third of the property in respect of which the hibah is made. B.L.R.O. 32021 LAWS OF BRUNEI 10 CAP. 225 Hibah PART 3 DONOR Conditions for donor 13. Subject to the provisions of this Act, a hibah shall be made by a person who - (a) has attained 15 years of age of qamariah year and is sane; (b) is not compelled; (c) is not safih; and (d) has not been declared bankrupt. Hibah by agent 14. ( 1 ) Hibah made by a person who is not the owner of the property is not valid unless that person is authorised by the owner of the property to make the hibah as an agent on his behalf. (2) If the property is jointly owned by the owner of the property and the agent, the hibah made by the agent is valid only to the extent of the portion of the property owned by him unless the other owner of the property authorised the agent to make a hibah of the other owner's portion of the property. Hibah by receiver of wadi'ah 15. Hibah made by receiver of wadi'ah is not valid unless he is authorised by the owner of the property to make the hibah in that respect (as a trustee) on his behalf. PART 4 DONEE Donee 16. The donee shall exist at the time a hibah is made. LAWS OF BRUNEI Hibah CAP. 225 11 Explanation - Hibah made to an unborn child or a person whose whereabouts is unknown is not valid. Hibah to minor, insane person or sarfih 17. (1) A hibah made by a parent to his minor child, or by a guardian to his ward, is valid without any formal delivery of possession. (2 ) A hibah made to a minor, an insane person or a sajih by a person other than his parent or guardian, shall be validated by delivery of possession to his parent or his guardian, as the case may be. PART 5 GENERAL Hibah for purposes contrary to Hukum Syara' 18. Hibah made for a purpose contrary to Hukum S'jara ' is not valid. Effect of valid lliball 19. A valid hibah shall not affect any provisions of any other written law relating to the transfer of possession of property which is the subject matter of hibah. Revocation 20. A valid hibah shall not be revoked by a donor except for a hibah made by a parent to his child, provided that the property is still in the possession of that child. Hibalt with condition of exchange 21. Hibah made with the condition of a specified exchange is deemed to be a contract of sale and purchase and and shall not be subject to the provisions of this Act. A makes a hibah to B of his house with the condition that B in exchange thereof will give his car to A. A and B exchange the house and car accordingly. This is a contract of sale and purchase and is not hibah. B.L. R 0. 3 2021 LAWS OF BRUNEI 12 CAP. 225 Hibah Regulations 22. (1) The Minister may, with the approval of His Majesty the Sultan and Yang Di-Pertuan, make regulations which are necessary or expedient for giving effect to and carrying out the provisions of this Act, and including the prescription of fees and of any other thing required to be or which may be prescribed under this Act, and for the due administration thereof. (2) Such regulations may include such incidental, consequential and supplementary provisions as the Minister considers necessary or expedient. LAWS OF BRUNEI Hibah CAP.225 13 SCHEDULE (section 2(5)) WORDS. EXPRESSIONS AND ARABIC SCRIPT Hibah Wadi 'uh