Feasibility of Revocation in Spousal Donations Based on Jurisprudential Teachings (A Critique of Article 803 of the Civil Code with Proposed Amendments)

The Civil Code considers in Article 803, the presumption principle in the contract of gift (Arabic: اَلْهِبَة, Romanized: al-Hiba) to be permissible, and it states the exceptions where it becomes obligatory (presumed to be binding). By interpreting this in the context of exclusivity, the gift between spouses is included under the permissibility of revocation. However, Article 1037 adopts an approach that is conflicting with Article 803. This is while the issue of spousal gifts is a matter of dispute among jurists. Some, based on the authentic narration of Muḥammad ibn Muslim (Ṣaḥīḥih Muḥammad ibn Muslim) and consensus (Arabic: إجْماع, Romanized: ʾIjmāʿ), argue for permissibility, while others, citing the kinship (persons related to the legator in the female line) between spouses, the Qurʾānic verse “pacta sunt servanda or honor your contracts,” and the authentic narration of Zurārah ibn Aʿyan from Imām Ṣādiq (peace be upon him), believe in the obligation and binding of gifts. Considering that the source of the disagreement lies in the interpretation of the evidence, the author, in this study, evaluates the arguments of proponents of both views by referencing library sources and employing a descriptive-analytical approach. Regarding the reasoning of those who advocate for permissibility, it has been concluded that the subject of the authentic narration of Muḥammad ibn Muslim (Ṣaḥīḥih Muḥammad ibn Muslim) pertains to the return of Ṣadaqa (alms) rather than a gift. Since the condition for the realization of Ṣadaqa is the intention of seeking nearness to God, the basis for the permissibility of returning is the non-fulfillment of Ṣadaqa. Additionally, the reported consensus (al-Manqūl) also encounters both minor and major obstacles. However, in examining the reasoning of those who support the obligation, it becomes clear that the first two arguments they present do not sufficiently substantiate their claim. This is because the notion of kinship between spouses demands evidence, which is lacking in this context. Moreover, the cited verse pertains only to situations where there is uncertainty regarding the obligation of the contract. In contrast, numerous authentic narrations affirm the established principle that gifts are permissible. In relation to the authentic narration of Zurārah, despite various objections, it has been shown that there is no conflict with the narration of Muḥammad ibn Muslim and that it is not rejected. The fact that jurists have not acted upon one part of the narration does not invalidate the other part—specifically, the obligation of gifting between spouses—especially since this particular part has been upheld by many. Thus, by distinguishing between the parts of the narration, the latter part remains valid and continues to be acted upon. Thus, it is suggested to the esteemed legislator to include the gift between spouses as an exemption (exclusions) in the future amendments of the Civil Code.