The Conditions of the Form of the Endowment
The conditions of the form of the endowment are five: an expression that imparts what is meant,[1] permanence,[2] implementation,[3] an obvious recipient[4] and adherence[5]
The Conditions of the Form of the Endowment
The conditions of the form of the endowment are five:
The first is an expression that imparts what is meant, such as you saying, ‘I have given this as permanent, retained charity’, or ‘charity that shall not be sold or given as collateral’, or ‘I have dedicated this to charitable purposes for perpetuity.’[6] As for one saying, ‘I have dedicated this’, and then he goes quiet, this is not valid. However, if one were to say, ‘I have dedicated this for Allah’, this form is differed over and the clearest position[7] is that the endowment would not be valid, and this is the position of ar-Ramlī and Ibn Ḥajar.
The explanation of al-Bājūrī states, ‘It is known from what has been determined that the recipient must be obvious, for if it is not made obvious, such as someone saying, ‘I have dedicated this muṣḥaf’, or ‘this book’, ‘for Allah the Exalted, as is found to be written in several muṣḥafs and books, it is not valid, because the beneficiary of the endowment is a pillar. If it is missing, the endowment is invalid.’ And al-Bājūrī is a verifying scholar.[8] The counterpart to the clearest position is that the endowment is valid.
Ash-Sheikh Bā Makhramah differed with ar-Ramlī and Ibn Ḥajar and issued a fatwā to the people of Ḥadramawt stating that such a form is valid, and he said, ‘It is spent on the poor.’ He used as his proof the person who says, ‘I have bequeathed such-and-such for Allah.’ They have said that that the bequest is valid, and the money is spent on the poor, so he said, ‘What is the difference between “I have dedicated” and “I have bequeathed”?’
The speech of Bā Makhramah is sound and he says it is valid to dedicate a fan but not valid to dedicate a tooth-stick.[9]
The second condition is permanence, as it is not allowed for an endowment to be temporary. However, Imam Abū Ḥanīfah says that it is allowed to be temporary.
The third condition is implementation, as it is not allowed to attach stipulations, while an exception has been made for stipulations connected to one’s death.[10]
The fourth condition is that the recipient be obvious, and it must be accepted if the beneficiary is a specific individual or he has a limited amount of children. As for an endowment dedicated to a general beneficiary or a masjid, or to the poor, then acceptance is not a condition.
Selling an Endowment:
If the beneficiaries of an endowment were to agree to sell what had been endowed to them, they would not be allowed to sell it, and this is why some people write Allah the Exalted’s words on their endowment: {Then if anyone alters it after hearing it, the crime is on the part of those who alter it.}[11] And Abū Ḥanīfah says it is permissible to sell it.
The forms of an endowment differ, and each form has its own ruling. If someone says, ‘I have dedicated this house to my children’, it would include both the males and the females. If one says, ‘I have dedicated this house to my offspring’, or ‘to my progeny’, or ‘to my descendants’, then this would include even the children of the daughters. If one were to say, ‘to those ascribed to me’, then it would include his male and female children as well as his sons’ sons.[12] If he were to say, ‘to my sons’, then it would only include the males.[13]
If one says, ‘I have dedicated this house to my brothers (ikhwah)’, it would only apply to the males, because the word is masculine – from what I can ascertain – based on the Exalted’s statement, {The brothers [ikhwah] of Yūsuf came.}[14] Others have said that is includes both genders, and their proof is the Exalted’s statement, {If there are siblings [ikhwah], men and women}.[15] And the intention of the endower is followed if it is known. If not, the one looking into the matter uses juridical reasoning,[16] and the proceeds of the endowment are distributed equally; the female gets the same as the male.[17]
The first is an expression that imparts what is meant, such as you saying, ‘I have given this as permanent, retained charity’, or ‘charity that shall not be sold or given as collateral’, or ‘I have dedicated this to charitable purposes for perpetuity.’[6] As for one saying, ‘I have dedicated this’, and then he goes quiet, this is not valid. However, if one were to say, ‘I have dedicated this for Allah’, this form is differed over and the clearest position[7] is that the endowment would not be valid, and this is the position of ar-Ramlī and Ibn Ḥajar.
The explanation of al-Bājūrī states, ‘It is known from what has been determined that the recipient must be obvious, for if it is not made obvious, such as someone saying, ‘I have dedicated this muṣḥaf’, or ‘this book’, ‘for Allah the Exalted, as is found to be written in several muṣḥafs and books, it is not valid, because the beneficiary of the endowment is a pillar. If it is missing, the endowment is invalid.’ And al-Bājūrī is a verifying scholar.[8] The counterpart to the clearest position is that the endowment is valid.
Ash-Sheikh Bā Makhramah differed with ar-Ramlī and Ibn Ḥajar and issued a fatwā to the people of Ḥadramawt stating that such a form is valid, and he said, ‘It is spent on the poor.’ He used as his proof the person who says, ‘I have bequeathed such-and-such for Allah.’ They have said that that the bequest is valid, and the money is spent on the poor, so he said, ‘What is the difference between “I have dedicated” and “I have bequeathed”?’
The speech of Bā Makhramah is sound and he says it is valid to dedicate a fan but not valid to dedicate a tooth-stick.[9]
The second condition is permanence, as it is not allowed for an endowment to be temporary. However, Imam Abū Ḥanīfah says that it is allowed to be temporary.
The third condition is implementation, as it is not allowed to attach stipulations, while an exception has been made for stipulations connected to one’s death.[10]
The fourth condition is that the recipient be obvious, and it must be accepted if the beneficiary is a specific individual or he has a limited amount of children. As for an endowment dedicated to a general beneficiary or a masjid, or to the poor, then acceptance is not a condition.
Selling an Endowment:
If the beneficiaries of an endowment were to agree to sell what had been endowed to them, they would not be allowed to sell it, and this is why some people write Allah the Exalted’s words on their endowment: {Then if anyone alters it after hearing it, the crime is on the part of those who alter it.}[11] And Abū Ḥanīfah says it is permissible to sell it.
The forms of an endowment differ, and each form has its own ruling. If someone says, ‘I have dedicated this house to my children’, it would include both the males and the females. If one says, ‘I have dedicated this house to my offspring’, or ‘to my progeny’, or ‘to my descendants’, then this would include even the children of the daughters. If one were to say, ‘to those ascribed to me’, then it would include his male and female children as well as his sons’ sons.[12] If he were to say, ‘to my sons’, then it would only include the males.[13]
If one says, ‘I have dedicated this house to my brothers (ikhwah)’, it would only apply to the males, because the word is masculine – from what I can ascertain – based on the Exalted’s statement, {The brothers [ikhwah] of Yūsuf came.}[14] Others have said that is includes both genders, and their proof is the Exalted’s statement, {If there are siblings [ikhwah], men and women}.[15] And the intention of the endower is followed if it is known. If not, the one looking into the matter uses juridical reasoning,[16] and the proceeds of the endowment are distributed equally; the female gets the same as the male.[17]
_____________________
[1] Such as, ‘I have made an endowment…’, or ‘I have dedicated…’, or ‘I have donated such-and-such for the benefit of such-and-such to be inviolable (muḥarram) or everlasting (muʾabbad) charity.’ According to Ibn Ḥajar [al-Haytamī] and others, it is not a condition that the beneficiaries accept the endowment, regardless of whether they are specific or general. [Shams ad-Dīn] ar-Ramlī and other say that it is a condition that the specific beneficiary accept immediately, but not anyone else.
[2] Ar. taʾbīd, such that it is not made temporary, for if someone were to say, ‘I dedicate this to the poor for one year’, it would not be valid, and this regards that which is not comparable to the emancipation of slaves. As for it being like a masjid or hospice, it becomes permanent and the condition is nullified. (tn): ‘The scholars have made an exception with regard to this condition – the condition of timing – for masjids, hospices and graveyards and whatever is done that resembles the emancipation of slaves [i.e. permanence is automatically understood], or is comparable to it. They have ruled that the endowment is valid and permanent, and the condition is nullified, out of desire for the form to be as correct as possible. Thus, if one were to say, ‘I have dedicated this land of mine to be a masjid (or a graveyard, or a hospice) for one year’, the endowment is permanently valid and the time is nullified.’ [Imam Muṣṭafā Al-Bughā et al, al-Fiqh al-Manhajī (Damascus: Dār Al-Qalam, 1433/2012), v.2, p.230]
[3] Ar. tanjīz, i.e. no stipulations attached, for if one were to say, ‘If the new month comes in, I will dedicate such-and-such to the poor’, it would not be valid. This also applies to that which does not resemble emancipation, and thus if one were to say, ‘If Ramaḍān comes in I will make this place a masjid, it is valid and the place does not become a masjid unless Ramaḍān has come in. It also applies to that which is not connected to death, and thus if one were to say, ‘I dedicate such-and-such to the poor after my death’, it is valid and it is an endowment that falls under the ruling of bequests. Therefore, it would be valid to take it back. Also, if one were to implement the endowment and stipulate that the proceeds be given after one’s death that would be allowed. (tn): The meaning of resembling emancipation is in its separation from the jurisdiction of human beings, as it is agreed that the masjid, just like a free human being, is the property of Allah the Exalted. Please see Ḥasan ibn Aḥmad ibn Muḥammad al-Kāf, at-Taqrīrāt as-Sadīdah fī Masāʾil Mufīdah: Qism al-Buyūʾ wa al-Farāʾiḍ (Riyadh: Dār al-Mīrāth al-Nabawī, 1434/2013), p.164
[4] Ar. bayān al-maṣrif, for if one were to say, ‘I have dedicated such-and-such’, it would not be valid, even if one were to add, ‘…for Allah’ according to Ibn Ḥajar and ar-Ramlī, and they differ with Abu Makhramah, who said it would then be valid in such a situation. He should also spend it on beneficiaries that are close at hand. If one were to say, ‘I have bequeathed a third of my wealth’, it would be valid by consensus and the money would be spent on the poor.
[5] Ar. ilzām, for it is not valid to stipulate a choice [Ar. khiyār, i.e. right of cancellation] as to whether the endowment shall remain or be reclaimed, as is the case with sales and other transactions. One also cannot stipulate the right to change any of the conditions, such that one can include whomever one wants and exclude whomever one wants.
[6] (tn): The abovementioned expressions employ different Arabic terms, such as taṣadduq and tasbīl, which are synonyms for waqf in this case. Imam Wahbah az-Zuḥaylī says, ‘The expressions of waqf are six: waqaftu, ḥabbastu, sabbaltu, taṣaddaqtu, ʿabbadtu [i.e. ‘I have made everlasting…], and ḥarramtu [i.e. I have made inviolable…]’ [al-Fiqh ash-Shāfiʿī Al-Muyassar (Damascus: Dār Al-Fikr, 2008), v.1, p.723.]
[7] Ar. al-aẓhar, i.e. the clearest position amongst two or more positions of ash-Shāfiʿī, may Allah the Exalted have mercy on him, and there is a strong difference of opinion between them. Its opposite is ẓāhir (i.e. clear). [al-Fiqh ash-Shāfiʿī Al-Muyassar (Damascus: Dār Al-Fikr, 2008), v.1, p.73 and Minhāj at-Ṭālibīn wa ʿUmdat al-Muftīn by Imam an-Nawawī (Jeddah: Dār al-Minhāj, 1432/2011), p.65.]
[8] Ar. al-muḥaqqiq (tn): i.e. one who follows the imam of his madhhab in the foundations (uṣul al-fiqh) as well as the principles (qawāʾid) but he differs with him in some branch applications.
[9] Ar. as-siwāk
[10] (tn): Please see the footnote above
[11] (tn): Sūrat Al-Baqarah 2:181
[12] (tn): but the not children of his daughters
[13] (tn): This is because one’s lineage and one’s people (qawm) is determined by the father. Allah says in Sūrat Al-Ḥujurāt (49:11), {People [qawm] should not ridicule other people who may be better than them and nor should women mock other women who may be better than them}, which is an indication that qawm is for males. Furthermore, every prophet in the Qurʾān addresses his people by saying ‘yā qawmī’, (O my people…), with the exception of ʿĪsā, peace be upon him. While his mother Maryam, peace be upon her, is from the Children of Israel, he has no father, so he address them by saying, ‘yā Banī Isrāʾīl’ (O Children of Israel…).
[14] (tn): Sūrat Yūsuf 12:58
[15] (tn): Sūrat Al-Nisāʾ 4:176
[16] Ar. ijtihād
[17] Ash-Sheikh Muwaffaq ad-Dīn Ibn Qudāmah has mentioned in his book al-Mughnī that it is recommended to distribute an endowment as one would distribute inheritance [i.e. males receive the shares of two females, as mentioned in Sūrat Al-Nisāʾ 4:11 and 4:176], because males are regarded as having greater need than females. [(tn): For further details, please see the chapter on a woman’s inheritance in the book Islamic Law Is Not Misogynistic by Imam Muḥammad at-Tāwīl.]
[1] Such as, ‘I have made an endowment…’, or ‘I have dedicated…’, or ‘I have donated such-and-such for the benefit of such-and-such to be inviolable (muḥarram) or everlasting (muʾabbad) charity.’ According to Ibn Ḥajar [al-Haytamī] and others, it is not a condition that the beneficiaries accept the endowment, regardless of whether they are specific or general. [Shams ad-Dīn] ar-Ramlī and other say that it is a condition that the specific beneficiary accept immediately, but not anyone else.
[2] Ar. taʾbīd, such that it is not made temporary, for if someone were to say, ‘I dedicate this to the poor for one year’, it would not be valid, and this regards that which is not comparable to the emancipation of slaves. As for it being like a masjid or hospice, it becomes permanent and the condition is nullified. (tn): ‘The scholars have made an exception with regard to this condition – the condition of timing – for masjids, hospices and graveyards and whatever is done that resembles the emancipation of slaves [i.e. permanence is automatically understood], or is comparable to it. They have ruled that the endowment is valid and permanent, and the condition is nullified, out of desire for the form to be as correct as possible. Thus, if one were to say, ‘I have dedicated this land of mine to be a masjid (or a graveyard, or a hospice) for one year’, the endowment is permanently valid and the time is nullified.’ [Imam Muṣṭafā Al-Bughā et al, al-Fiqh al-Manhajī (Damascus: Dār Al-Qalam, 1433/2012), v.2, p.230]
[3] Ar. tanjīz, i.e. no stipulations attached, for if one were to say, ‘If the new month comes in, I will dedicate such-and-such to the poor’, it would not be valid. This also applies to that which does not resemble emancipation, and thus if one were to say, ‘If Ramaḍān comes in I will make this place a masjid, it is valid and the place does not become a masjid unless Ramaḍān has come in. It also applies to that which is not connected to death, and thus if one were to say, ‘I dedicate such-and-such to the poor after my death’, it is valid and it is an endowment that falls under the ruling of bequests. Therefore, it would be valid to take it back. Also, if one were to implement the endowment and stipulate that the proceeds be given after one’s death that would be allowed. (tn): The meaning of resembling emancipation is in its separation from the jurisdiction of human beings, as it is agreed that the masjid, just like a free human being, is the property of Allah the Exalted. Please see Ḥasan ibn Aḥmad ibn Muḥammad al-Kāf, at-Taqrīrāt as-Sadīdah fī Masāʾil Mufīdah: Qism al-Buyūʾ wa al-Farāʾiḍ (Riyadh: Dār al-Mīrāth al-Nabawī, 1434/2013), p.164
[4] Ar. bayān al-maṣrif, for if one were to say, ‘I have dedicated such-and-such’, it would not be valid, even if one were to add, ‘…for Allah’ according to Ibn Ḥajar and ar-Ramlī, and they differ with Abu Makhramah, who said it would then be valid in such a situation. He should also spend it on beneficiaries that are close at hand. If one were to say, ‘I have bequeathed a third of my wealth’, it would be valid by consensus and the money would be spent on the poor.
[5] Ar. ilzām, for it is not valid to stipulate a choice [Ar. khiyār, i.e. right of cancellation] as to whether the endowment shall remain or be reclaimed, as is the case with sales and other transactions. One also cannot stipulate the right to change any of the conditions, such that one can include whomever one wants and exclude whomever one wants.
[6] (tn): The abovementioned expressions employ different Arabic terms, such as taṣadduq and tasbīl, which are synonyms for waqf in this case. Imam Wahbah az-Zuḥaylī says, ‘The expressions of waqf are six: waqaftu, ḥabbastu, sabbaltu, taṣaddaqtu, ʿabbadtu [i.e. ‘I have made everlasting…], and ḥarramtu [i.e. I have made inviolable…]’ [al-Fiqh ash-Shāfiʿī Al-Muyassar (Damascus: Dār Al-Fikr, 2008), v.1, p.723.]
[7] Ar. al-aẓhar, i.e. the clearest position amongst two or more positions of ash-Shāfiʿī, may Allah the Exalted have mercy on him, and there is a strong difference of opinion between them. Its opposite is ẓāhir (i.e. clear). [al-Fiqh ash-Shāfiʿī Al-Muyassar (Damascus: Dār Al-Fikr, 2008), v.1, p.73 and Minhāj at-Ṭālibīn wa ʿUmdat al-Muftīn by Imam an-Nawawī (Jeddah: Dār al-Minhāj, 1432/2011), p.65.]
[8] Ar. al-muḥaqqiq (tn): i.e. one who follows the imam of his madhhab in the foundations (uṣul al-fiqh) as well as the principles (qawāʾid) but he differs with him in some branch applications.
[9] Ar. as-siwāk
[10] (tn): Please see the footnote above
[11] (tn): Sūrat Al-Baqarah 2:181
[12] (tn): but the not children of his daughters
[13] (tn): This is because one’s lineage and one’s people (qawm) is determined by the father. Allah says in Sūrat Al-Ḥujurāt (49:11), {People [qawm] should not ridicule other people who may be better than them and nor should women mock other women who may be better than them}, which is an indication that qawm is for males. Furthermore, every prophet in the Qurʾān addresses his people by saying ‘yā qawmī’, (O my people…), with the exception of ʿĪsā, peace be upon him. While his mother Maryam, peace be upon her, is from the Children of Israel, he has no father, so he address them by saying, ‘yā Banī Isrāʾīl’ (O Children of Israel…).
[14] (tn): Sūrat Yūsuf 12:58
[15] (tn): Sūrat Al-Nisāʾ 4:176
[16] Ar. ijtihād
[17] Ash-Sheikh Muwaffaq ad-Dīn Ibn Qudāmah has mentioned in his book al-Mughnī that it is recommended to distribute an endowment as one would distribute inheritance [i.e. males receive the shares of two females, as mentioned in Sūrat Al-Nisāʾ 4:11 and 4:176], because males are regarded as having greater need than females. [(tn): For further details, please see the chapter on a woman’s inheritance in the book Islamic Law Is Not Misogynistic by Imam Muḥammad at-Tāwīl.]
No comments:
Post a Comment