The Gift of Divisible Shared Property: A Comparative Jurisprudential Study

Abstract

This research examines the ruling on the gift of divisible jointly owned property through a comparative jurisprudential study. The research is divided into two sections. The first section defines the terms "gift" and "joint ownership" linguistically and technically, and explains the definitions of the term "gift" according to the Hanafi, Maliki, Shafi'i, Hanbali, Zahiri, Zaidi, and Imami schools of thought. Their definitions are quite similar. The second section addresses the ruling on the gift of jointly owned property, including the various schools of thought on the gift of divisible jointly owned property. It presents the different schools of thought, their supporting evidence, the debates surrounding these schools, and the most sound opinion. The research concludes with a summary of the most important findings.

There is no disagreement among jurists that gifting indivisible property is permissible. According to the Hanafi school, gifting undivided property is invalid if it is divisible, but valid if it is indivisible.

However, the majority of Malikis, Shafi'is, Hanbalis, Zahiris, Zaydis, and Imamis hold that gifting undivided property is valid, whether it is divisible or indivisible. One of the Hanafi arguments against gifting divisible undivided property is that a gift is only valid if it is received, and undivided property cannot be received without the addition of something else, which is not a gift.

One of the arguments of the Malikis, Shafi'is, Hanbalis, and Imamis for the permissibility of gifting divisible undivided property is that anything that can be sold can also be gifted, just like divisible property.