Friday 13 September 2019

A Summary of the Rulings of Waqf (Part 1)


The Introduction to The Book of Waqf, to be republished soon, insha'Allah

https://ar.wikipedia.org/wiki/%D9%85%D8%B3%D8%AC%D8%AF_%D8%A7%D8%A8%D9%86_%D8%B7%D9%88%D9%84%D9%88%D9%86

 
The Chapter on Waqf from Shar al-Yāqūt al-Nafīs[1]

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 are four: the endower,[26] the beneficiary of the endowment,[27] the dedicated article[28] and the form.[29]


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 are two: free choice[31] and full competence to donate whilst alive[32]

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 Muammad ibn Amad 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 Tufat al-Mutāj bi Shar 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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