Gift Contracts (Hiba) in Kuwaiti Law — Conditions, Rules & Revocation

Definition and Legal Nature

A hiba (gift) is a contract whereby the donor disposes of property without consideration, or for nominal consideration. It is a present-effect gratuitous disposition operating during the donor's lifetime — distinguishing it from a bequest (waṣiyya), which takes effect only after death.

A gift is a consensual contract requiring offer and acceptance, and is a title-transfer contract passing ownership from donor to donee.

Elements of a Gift Contract

A gift rests on three elements:

1. Donor (wāhib): The person gifting the property — must own the gifted property and have capacity to make gratuitous dispositions (adult, sane, acting freely)
2. Donee (mawhūb lahu): The recipient — may be any natural or legal person; must accept the gift
3. Subject (mawhūb): The property gifted — must be existing, specified, owned by the donor, and legally tradeable

Additionally, the form: offer by the donor and acceptance by the donee, oral or written.

Validity Conditions

Beyond the essential elements, a valid gift requires:

A guardian or trustee may not gift a minor's property. An insolvent debtor's gift harming creditors may be annulled through an action to set aside the disposition.

Gifts of Real Property — Registration

Real property gifts are subject to special rules under Kuwaiti law:

• Formality: A real property gift is not concluded until registered with the Real Estate Registration Department — registration is a constitutive requirement, not merely an opposability measure
• Notarization: The gift contract must be notarized as a preliminary to registration
• Fees: Reduced registration fees apply to real property gifts compared to sales (especially between relatives)
• Tax: Kuwait does not impose tax on real property gifts

Failure to register means the gift is not concluded at all and produces no legal effect, even between the parties.

Gifts of Movables and Money

Unlike real property, movable gifts do not require registration:

• Cash: Completed by physical delivery or bank transfer
• Physical movables: Completed by actual delivery (taking possession) — the gift is not complete before possession
• Shares and securities: Completed by transfer in the company's or depository's records
• Personal rights: Completed by assignment per the rules of assignment of rights

Possession of movables is a condition for completion of the gift, not for its conclusion — the gift is concluded by offer and acceptance but is not complete until delivery.

Conditional Gifts (Hiba bi'l-Thawāb)

A conditional gift or hiba bi'l-thawāb is a gift where the donor stipulates a specific consideration:

• If the consideration equals the gift's value: treated as a sale
• If the consideration is less: treated as a gift for the excess
• If a non-monetary condition is stipulated: e.g., gifting property on condition of lifetime care

The donor may also reserve a usufruct right over the gifted property for life — known as a gift with retention of usufruct.

Revocation — Rules and Bars

As a rule, the donor may freely revoke the gift before delivery. After delivery, revocation is possible by mutual consent or court judgment:

Justifiable Grounds for Judicial Revocation:

• The donee's breach of obligations toward the donor
• The donor has a child born after the gift (when previously childless)
• The donor becomes severely impoverished after the gift

Bars to Revocation:

• Gift between spouses or to a close relative (maḥram)
• The gifted property has been destroyed, consumed, or disposed of
• The property has increased in value through connected improvements
• Death of either party
• Gift made for charitable purposes

Gifts During Terminal Illness

Kuwaiti law subjects gifts made during terminal illness to special rules protecting heirs:

• Definition: Terminal illness (maraḍ al-mawt) is an illness where death is likely and which in fact ends in death
• Rule: Gifts during terminal illness are treated as bequests — valid only within one-third of the estate and not to heirs without the other heirs' approval
• Proof: The burden of proving the gift was made during terminal illness falls on the party alleging it

The rationale is that a terminally ill person may use gifts to circumvent inheritance rules and favor some heirs over others.

Frequently Asked Questions

Can future property be gifted?

No. The gifted property must exist at the time of the gift. A gift of property not yet in existence is void.

Can a father revoke a gift to his children?

No. A gift to a close relative (maḥram), including children, is irrevocable under Kuwaiti law once delivered.

Are gifts taxed in Kuwait?

Kuwait does not impose tax on gifts, whether real property or movables. However, registration fees apply to transferring real property title by gift.