The Introduction to The Book of Waqf, to be republished soon, insha'Allah
Al-Waqf[2]
In
the Arabic language, the term waqf means ḥabs[3].
In the Revealed Law, it means to retain property that is specific[4]
and owned[5]
whose ownership is transferrable[6]
and it can be benefitted from[7]
while the property itself remains,[8]
and this is by suspending disposal of it, while the financial proceeds go
towards something that is permissible[9]
and existent.[10]
Al-Waqf
This chapter is the chapter on waqf,
and waqf is one of the great acts of charity that have many, immense
virtues, because it is a continuous, ongoing charity.[11]
This has been mentioned in the ḥadīth
of the Messenger of Allah, may Allah bless him and grant him peace, {When the
son of Adam dies, his deeds come to an end except for three: ongoing charity…}[12]
and he mentioned this first, then {or a righteous child who prays for him or
knowledge that is benefitted from.} In another narration, knowledge is
mentioned before the righteous child.
They have said: Indeed Imam
Al-Rāfiʿī explained the meaning of ongoing charity and said that it could only
apply to waqf, and the scholars have agreed with him in this.
Waqf took place in the time
of the Messenger of Allah, may Allah bless him and grant him peace, and many of
the Companions of the Messenger of Allah, may Allah bless him and grant him
peace, made endowments out of some of their wealth and made it a retained,
continuous charity. They include: Abū Ṭalḥah, who made an endowment out of
Bayruḥāʾ[13]
for the closest of his relatives, and our master, ʿUmar ibn Al-Khaṭṭāb, who
made an endowment out of his share from Khaybar.[14]
He made it a continuous endowment and permitted his son to eat directly from it
and to feed passersby. He also wrote out a document stipulating what he had
made as an endowment.
Some of them said: Indeed our lady
Fāṭimah, peace be upon her, made endowments and ordered for endowments to be
written down. She made them for her relatives and the women of the Messenger of
Allah, may Allah’s blessings and peace be upon him. The details of what she
wrote have been related from some of the scholars.
They have said: Indeed, most of the
wealthy men of the Helpers[15]
made endowments out of their properties, and most of their property was date
palms.
Likewise, our predecessors in Ḥadramawt;
it is rare that you will find property, especially in Dūʿan, that does not
contain an endowment. In Tarīm there were many acts of charity, and the
endowments reached such a degree that they made endowments for the pigeons of
the Sacred Precinct,[16]
including the house of Jubayr.[17] They say – back in the days that they were
inhabited – that these included some patches of arable land that were made as
an endowment for the pigeons of the Sacred Precinct. When the crop was
harvested, the amount gathered from the endowment for the pigeons of the Sacred
Precinct was transported to the Two Sacred Precincts to be given to them.
Even stranger is that in Tarīm we
have an endowment for foundlings,[18]
whose parents are not known. One of the scholars has told me that in the Levant[19]
there is a place that contains an endowment for every vessel[20]
that is broken by a servant and that servant has to pay for it. He brings the
broken vessel to the overseers of the endowment, informs them that it was
broken by him and then they take it from him and pay him the equivalent price,
after which he goes and buys a replacement.
This is how our predecessors would
diversify acts of charity, due to their intense enthusiasm to compete in acts
of righteousness. The endowments were many and some still survive to this day
while others have fallen into ruin, including those that have been taken over
by oppressors.
They have said that the value of the
endowments of Imam Al-Sayyid ʿAbdullah Bā ʿAlawī for the Bā ʿAlawī Masjid
reached 90,000 dinars in that time, and in a place called Nuwaydirah Tarīm they
found twenty-one wells in some of the best places[21]
and they were an endowment from the family of Munaffir Al-Ḥāmid for that
masjid, and that’s why the imamate[22]
was amongst them.
As for endowments for guests, this
exists in abundance in Islamic countries.
In the Arabic language, waqf
means to obstruct.[23]
Thus, you can say, ‘We obstructed so-and-so from travelling.’[24]
Similarly, the Exalted has said, {And call them to a halt. They will be asked.}[25]
In the Revealed Law, it means to
retain property that is specific and owned whose ownership is transferrable and
it can be benefitted from while the property itself remains, and this is by
suspending disposal of it, while the financial proceeds go towards something
that is permissible and existent.
The Pillars of an Endowment
The Pillars of an Endowment
The pillars
of an endowment are four: the endower, the beneficiary of the endowment, the
dedicated article and the form.
If Zayd
were to have a plot of land containing date palms and he said, ‘I have made
these date palms an endowment for the poor’[30],
such a form of endowment comprises the four pillars; Zayd is the endower, he
has made an endowment out of specific property, which is the plot of land, and
the dedicated property is to be benefitted from while the property itself
remains by suspending disposal of it. Rather, the spending is in the proceeds
going to the poor. These poor people represent something that is specific and
present, and at this point the four pillars emerge: the endower is Zayd, the
dedicated article is the plot of land containing date palms, the beneficiary of
the endowment is the poor and the form is Zayd’s statement, ‘I have made these
date palms an endowment for the poor’, and each pillar has its own conditions.
The Conditions of the Endower
The Conditions of the Endower
The conditions of the endower are
two:
The first condition is free
choice. As for the action of someone who is forced – as we have repeated
several times – it is not considered. If an individual were forced to dedicate
some property by someone who is able to implement his coercion, the endowment
would not be valid.
The second condition is full
competence to donate the dedicated article, for it is not valid to dedicate
that which one doesn’t own. Full competence to donate also means that the
endower is sane, mature and not suspended from transactions, and it is a
condition that is shared by both the endower and the dedicated article, i.e.
the property that the endower is to dedicate must be something that can be
donated.
[1] (tn): by Imam Muḥammad ibn Aḥmad ibn ʿUmar ash-Shāṭirī (Jeddah: Dār al-Minhāj, 1427/2007), p.483 to 491
[2] (tn): Normally translated as
‘endowments’.
[3] (tn): i.e. to obstruct, shut off,
confine or retain
[4] i.e. not something that is in one’s
safekeeping (dhimmah) nor something vague, like one of two slaves.
[5] Ar. mamlūk, i.e. by the
endower (wāqif), as it is not valid to make an endowment out of
something that is rented.
[6] Ar. qābil al-naql, and this
would exclude a slave woman who has a child by her master (mustawladah)
and a slave who has a contract of manumission (mukātib), because their
ownership cannot be transferred.
[7]Even if something that can only be
benefitted from in the future, such as a young slave or small donkey, and what
cannot be benefitted from is excluded, such as a chronically ill donkey that is
never expected to recover.
[8] Even if only a short period of
time, the minimum being the time in which it would be feasible for it to be
rented out or hired. This excludes what cannot be benefitted from unless it is
eliminated, such as a candle used for lighting, food for eating or basil leaves
that have been cut off for their scent. It is not valid to make an endowment
out of any of these.
[9] i.e. not unlawful (ḥarām)
[10] i.e. in the present time, as it is
not valid to make an endowment for someone who will be born to the endower and
then for the poor, and this is called munqatiʿ
al-awwal (the first recipient of
the endowment is cut out).
[11] Ar. ṣadaqah jāriyah
[12] The rest of the ḥadīth mentions
knowledge that is benefitted from and a righteous child who supplicates for
him, and it has been narrated by Imam Muslim in his Ṣaḥīḥ on the
authority of Abū Hurayrah.
[13] (tn): a well-known garden, as
mentioned by Imam Ibn Ḥajar in Tuḥfat al-Muḥtāj bi
Sharḥ al-Minhāj (Beirut: Dār al-Kutub al-ʿIlmiyyah,
2011), v.2, p.488, and the most beloved of his properties, as mentioned by
Al-Khaṭīb Al-Shirbīnī (Mughnī al-Muḥtāj, v.3, p.352)
[14] (tn): i.e. the Battle of Khaybar in
7 AH
[15] (tn): Ar. Anṣār
[16] (tn): i.e. in Makkah and Madīnah
[17] (tn): i.e. one of the families
there
[18] (tn): Ar. laqīṭ, i.e. an
abandoned or deserted child of unknown parentage.
[19] (tn): Ar. Al-Shām
[20] (tn): i.e. plate, bowl, glass etc.
[21] (tn): i.e. in terms of land value
[22] (tn): i.e. of the masjid
[23] (tn): Ar. ḥabs
[24] (tn): Ar. awqafna fulānan ʿan
al-safr
[25] (tn): Sūrat Al-Ṣāffāt 37:24
[26] (tn): Ar. wāqif
[27] (tn): Ar. mawqūf ʿalayh
[28] (tn): Ar. mawqūf
[29] (tn): Ar. ṣīghah
[30] (tn): Ar. al-fuqarāʾ
[31] Ar. al-ikhtiyār, for an
endowment is not valid from someone who is forced without right. As for with
right, an example would be someone vowing to make an endowment out of part of
his wealth and then refraining from doing so after making the vow, and thus the
ruler can force him to do it, in which case the endowment would be valid. If he
refrains from doing so, the ruler makes an endowment out of it according to
where he thinks benefit lies.
[32] Ar. ahliyyat al-tabarruʿ fī al-ḥayāt,
for it is not valid from someone who is suspended from transactions (maḥjūr
ʿalayh) due to prodigality (safah), but his bequest (waṣiyah)
is valid even if he dedicates his house, because such suspension is lifted
after his death.
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