Waqf means retaining a property in trust and donating its yield/usufruct.
وَهُوَ: تَحْبِيْسُ الأَصْلِ، وَتَسْبِيْلُ الثَّمَرَةِ.
The Book of Selling and
Commercial Transactions
Book on Endowments
الْوَقْفِ
The Book of Purification
The Book of Prayer
Importance of Prayer & Ruling of its Abandonment
Facing the Qiblah & Intention in the Prayer
Etiquettes of Walking to Prayer and its Description
Description of Prayer Continued
Description of Prayer Continued
Description of Prayer Continued
Pillars and Mandatory Acts of Prayer
Two Prostrations of Forgetfulness
Supererogatory (Voluntary) Prayers
Supererogatory (Voluntary) Prayers Continued
Times of Prohibition of (Supererogatory) Prayer
Congregational Prayers & Latecomers
Jumu'ah (Congregational Friday) Prayer
The Book of Funerals
The Book of Fasting
The Book of Hajj and 'Umrah
Book of Zakat
The Book of Selling and Commercial Transactions
Introduction & Commercial and Selling
Selling of Primary & Secondary Commodities
Cancellation Options in Transactions
Cancellation Options Continued
Debt Transference & Guarantor-ship
Mortgaging & Security Deposits
Partnership & Companies Continued
Reviving Barren Lands & Per-Job Wage
Lost and Found Property & Foundlings
Prize Money & Deposits for Safekeeping
The Book of Bequests
The Book of Inheritance
The Book of Marriage
The Book of Divorce
The Book of Sadaq
The Book of Dhihar
The Book of Lian
The Book of Foods
Book of Fatal and Non-Fatal Assault
The Book of Indemnities
The Book of Hudood
The Book of Jihad
The Book of the Judiciary
The Book of Testimonies
Appendix
Glossary
The Book of Endowments (Waqf)
1029
This is permissible for any item whose sale is permissible, and that can bring continuous benefits without perishing [upon its usage].
وَيَجُوْزُ فِي كُلِّ عَيْنٍ يَجُوْزُ بَيْعُهَا، وَيُنْتَفَعُ بِهَا دَائِمًا مَعَ بَقَائِهَا، وَلاَ يَصِحُّ فِي غَيْرِ ذٰلِكَ،
1029. Waqf is a recommended (mustaḥabb) act of worship. The Prophet (SA) said:
“When a descendant of Adam dies, all his or her good deeds cease except three: perpetual charity (ṣadaqah jâriyah) [this is understood to refer to waqf], knowledge from which others may benefit after him or her, and a righteous child who will pray for him or her.” (M – from Abu Hurayrah)
إِذَا مَاتَ ابْنُ آدَمَ انْقَطَعَ عَمَلُهُ إِلا مِنْ ثَلاثٍ: صَدَقَةٍ جَارِيَةٍ، أَوْ عِلْمٍ يُنْتَفَعُ بِهِ مِن بَعدِه، أَوْ وَلَدٍ صَالِحٍ يَدْعُو لَهُ
Jâbir narrates:
“From the Messenger of Allah’s Companions, every single person of (financial) means set up a waqf.” (Reported by Abu Bakr al-Khassâf in Kitâb Aḥkâm al-Awqâf)
لَمْ يَكُنْ أَحَدٌ مِنْ أَصْحَابِ النَّبِيِّ ذُو مَقْدِرَةٍ إلَّا وَقَفَ.
There is no report of any Companion contesting the ruling that waqf is mustaḥabb. That is why some of the verifying scholars cited the consensus of the Companions in support of the ruling of waqf.
Reason supports the concept of waqf. In addition to being an ongoing charity and a means of drawing closer to Allah, waqf is an essential instrument in supporting small and large ventures of public interest, like orphanages, dams, roads, schools, hospitals, universities, da‘wah organizations, guesthouses (places where wayfarers may stay for free), and other similar venues. One may set up a waqf and make one’s own descendants the only beneficiaries of it. This will bar them from disposing of the property itself, while allowing them to benefit from its usufruct or yield. For example, if one fears that one’s children would recklessly spend a certain property (were they to inherit it), one may lock it up in a waqf so that they cannot sell it, but they will still be able to benefit from its rent.
This will not be part of the inheritance. Waqf cannot be inherited. However, a person can name his or her descendants as sole beneficiaries of the usufruct of the property held in waqf.
It would not be valid otherwise, such as in prices, foods, and perfumes.
مِثْلُ الأَثْمَانِ وَالْمَطْعُوْمَاتِ وَالرِّيَاحِيْنَ.
It can only be [established] for good/righteous ends, 1030 as [indicated] in a report narrated on the authority of ‘Umar (RA): ‘Umar asked, “O Messenger of Allah! I acquired some property at Khaybar which is dearer to me than anything I possess, so what do you instruct me to do with it?” He responded, “If you wish, retain it and give (its crop yield) in charity, but (the endowed property) itself should not be sold, gifted, or inherited.” So ‘Umar donated it [for the crop yield to be divided] among the poor, relatives of his, slaves [to buy their freedom], those in the path of Allah [for jihad efforts], wayfarers, and guests. The individual responsible for it (waqf manager) is not to be blamed for making use of a reasonable amount of it, and feeding a friend [from it], without hoarding. 1031
وَلاَ يَصِحُّ إِلاَّ عَلَى بِرٍّ أَوْ مَعْرُوْفٍ، مِثْلُ مَا رُوِيَ عَنْ عُمَرَ أَنَّهُ قَالَ: يَا رَسُوْلَ اللهِ، إِنِّيْ أَصَبْتُ مَالاً بِخَيْبَرَ لَمْ أُصِبْ مَالاً قَطُّ هُوَ أَنْفَسُ عِنْدِيْ مِنْهُ، فَمَا تَأْمُرُنِيْ فِيهِ؟ قَالَ : "إِنْ شِئْتَ حَبَسْتَ أَصْلَهَا وَتَصَدَّقْتَ بِهَا غير أنها لَا يُبَاعُ أَصْلُهَا، وَلَا يُوهَبُ، وَلَا يُورَثُ". قَالَ: فَتَصَدَّقَ بِهَا عُمَرُ فِي الْفُقَرَاءِ وَفِي الْقُرْبَى وَفِي الرِّقَابِ، وَفِي سَبِيْلِ اللهِ وَابْنِ السَّبِيْلِ وَالضَّيْفِ. لاَ جُنَاحَ عَلَى مَنْ وَلِيَهَا أَنْ يَأْكُلَ مِنْهَا أَوْ يُطْعِمَ صَدِيْقًا غَيْرَ مُتَمَوِّلٍ فِيهِ.
1030. Conditions of waqf validity:
· The purpose must be pleasing to Allah.
· The donor has authority to dispose of his or her wealth.
· The property is not something that perishes by being used, and it will continue to exist while people benefit from it.
· The property is precisely designated. It is not valid to say, “I will put one of my houses in a trust.”
· If it is for an individual, he or she must be one who can own the property. In other words, it may not be given to the dead (such as deceased awliyâ’) or to animals. It is effective immediately and not conditional, except if contingent upon death, because ‘Umar made a will that if anything were to happen to him, then the land he owned in Khaybar would be given in charity. (D). This should be no more than one-third of the value of the person’s money to be inherited, because it must be within the limits of the waṣiyah (bequest).
1031. (Ag – from Ibn ‘Umar)
Waqf can be [effected] through a statement 1032 or an action that is indicative of it, 1033 such as building a mosque and allowing people to pray in it, or [building] restrooms (or water fountains) that are made accessible to the public.
وَيَصِحُّ الْوَقْفُ بِالْقَوْلِ وَالْفِعْلِ الدَّالِّ عَلَيْهِ، مِثْلُ أَنْ يَبْنِيَ مَسْجِدًا وَيَأْذَنَ لِلنَّاسِ بِالصَّلاَةِ فِيهِ، أَوْ سِقَايَةً وَيُشَرِّعَهَا لِلنَّاسِ.
It is not permissible to sell it [the waqf] unless the benefit that it provides has ended altogether. In that case, it can be sold, and another should be bought to take its place. 1034
وَلاَ يَجُوْزُ بَيْعُهُ إِلاَّ أَنْ تَتَعَطَّلَ مَنَافِعُهُ بِالْكُلِّيَةِ، فَيُبَاعُ وَيُشْتَرَى بِهِ مَا يَقُوْمُ مَقَامَهُ.
For instance, a warhorse that is retained [as a waqf] but is no longer fit for battle can be sold, and another horse that can serve that end is purchased in its place. 1035 Similarly, if a mosque is no longer of benefit in its current location, it can be sold and relocated to a place where it will be of benefit. 1036
وَالْفَرَسُ الْحَبِيْسُ إِذَا لَمْ يَصْلُحْ لِلْغَزْوِ، بِيْعَ وَاشْتُرِيَ بِهِ مَا يَصْلُحُ لِلْغَزْوِ. وَالْمَسْجِدُ إِذَا لَمْ يَنْتَفِعُ بِهِ فِي مَكَانِهِ، بِيْعَ وَنُقِلَ إِلَى مَكَانٍ يَنْتَفِعُ بِهِ.
1032. While Imam Abu Ḥaneefah indicated that one could recant a statement of waqf, his two disciples Abu Yoosuf (d. 182 AH) and Muhammad ash-Shaybâni (d. 189 AH), as well as the three other major imams, indicated that the statement is binding.
1033. (a, -S): The action is not sufficient to make the waqf binding without a confirmatory statement.
1034. If it is a mosque and can no longer be used, then the money should be spent on another mosque.
If a waqf is set up to benefit a mosque, and it produces more than is needed, the excess is spent on another mosque. It is also permissible to give this to the poor.t.
1035. If the price of the old horse is not sufficient to buy a younger one fit for jihad, the money is used towards buying a share in a horse that will be used for that end.
1036. After the treasury of Kufa was robbed during the time of ‘Umar ibn al-Khaṭṭâb, he ordered his agent there to move the mosque that was in the Tammâreen (the market of the date traders) to be next to the treasury. (Cited by Ibn Qudâmah in al-Mughni) So, if a masjid became unsafe or too small for the congregation and cannot be expanded, it should be sold, and the money should be used to build another one for the same congregation. This is only allowable in the Ḥanbali madh-hab. (A/SM) The same applies to other waqfs. The principle here is that waqf is infinitely binding, and it is not permissible to annul it or sell it unless its benefits cease. In this case, it should be sold, and the money should be spent on a similar purpose. If it is not possible to spend it on something exactly the same, then on something close in nature.
With regard to [the practical administration of] a waqf, [such as] its expenditures, its stipulations, how it is organized, what types of people are included or excluded as potential beneficiaries, its manager and his or her compensation, the determining factors that must be referred back to are the stipulations made by the endower. 1037 [For example,] if a waqf is [stipulated to be] endowed to the “children” of a certain person, and then to the “needy”, then there would be no differentiation made between the male and female [children of that person] unless some sort of preference [for one gender] had been [expressly] stipulated. Furthermore, only when none of the children of the specified person remained would any “needy” persons receive [assistance from the waqf].
وَيُرْجَعُ فِي الْوَقْفِ وَمَصْرِفِهِ وَشُرُوْطِهِ وَتَرْتِيْبِهِ، وَإِدْخَالِ مَنْ شَاءَ بِصِفَةٍ أَوْ إِخْرَاجِهِ بِهَا، وَكَذٰلِكَ النَّاظِرُ فِيهِ، وَالنَّفَقَةُ عَلَيْهِ، إِلَى لَفْظِ الْوَاقِفِ فَلَوْ وَقَفَ عَلَى وَلَدِ فُلاَنٍ ثُمَّ عَلَى الْمَسَاكِيْنِ، كَانَ الذَّكَرُ وَالأُنْثَى بِالسَّوِيَّةِ إِلاَّ أَنْ يُفَضِّلَ بَعْضَهُمْ عَلَى بَعْضٍ، فَإِذَا لَمْ يَبْقَ مِنْهُمْ أَحَدٌ رَجَعَ عَلَى الْمَسَاكِيْنِ.
If the waqf is allotted to a certain [group of] recipients who can all be served [or reached, by the waqf], then distributing an equal portion to each one of them is mandatory, unless some of them were [expressly] preferred [by the stipulations of the waqf]. If serving or reaching all of them is impossible, 1038 then preferring some of them over others is permissible, as is allotting it to one of them in particular.
وَمَتَى كَانَ الْوَقْفُ عَلَى مَنْ يُمْكِنُ حَصْرُهُمْ، لَزِمَ اسْتِيْعَابُهُمْ بِهِ، وَالتَّسْوِيَّةُ بَيْنَهُمْ إِذَا لَمْ يُفَضِّلْ بَعْضَهُمْ. وَإِنْ لَمْ يُمْكِنْ حَصْرُهُمْ، جَازَ تَفْضِيْلُ بَعْضِهِمْ عَلَى بَعْضٍ، وَتَخْصِيْصُ وَاحِدٍ مِنْهُمْ بِهِ.
1037. It is obligatory to honor the conditions of the one who made the endowment, as long as it does not go against the Sharia, because the Prophet (SA) said:
“…and Muslims abide by their conditions, except a condition that will make haram what is halal or make halal what is haram.” (T – from ‘Amr ibn ‘Awf; T: S)
…وَالْمُسْلِمُونَ على شُرُوطِهِمْ إلا شَرْطًا حَرَّمَ حَلَالًا أو أَحَلَّ حَرَامًا.
Also, ‘Umar stipulated certain conditions in his waqf, as in the report mentioned above.
1038. Such as setting up a waqf for the poor, because including all of them is impossible.
Book on Endowments
( Page : no 90)