The jurists have mentioned that sometimes an endowment is disconnected at the beginning and sometimes it is disconnected in the middle. If it is disconnected at the beginning, such as someone saying, ‘I have dedicated this house to a man – and he doesn’t specify who – and then to Zayd’, the endowment is not valid, because there is no recipient at the beginning and one of the conditions of an endowment is implementation, and it is an endowment dedicated to someone unknown.
As for being disconnected in the middle, such as someone saying, ‘I have dedicated this house to Zayd and then a man – who is unspecified – and then to the poor, it is permissible, and when it is the turn of the unknown recipient they have said that it is spent on those nearest in kin to the endower, while another position is that it is spent on the poor.
If someone says, ‘I have dedicated this house to Zayd, ʿAmr and Bakr and then the masjid’, it is spent on the three.[2] If one of them dies, there is a difference of opinion regarding his share. Some of them have said that it is divided between the remaining two, and it is the relied-upon position, as long as the word ‘masjid’ is preceded by the conjunction ‘then’.[3] Another position is that the deceased’s share is transferred to the masjid.
An endowment is never sold, even if it is in a state of disrepair, as it is only permissible to rent it, except in a situation of compulsion, such as the state deciding to open a street and deciding to demolish the endowment because it is located in the area where the project is to be built. If the local authority pays compensation for the endowment then it is obligatory to take the compensation, and then one buys or builds something in place of it. Only the Ḥanbalīs allow for it to be replaced.[4]
The Ruling for Dedicating an Endowment to Oneself
It is not valid to dedicate an endowment to oneself, but they have said that if someone wants to dedicate something to himself then let him mention an attribute that is specific to him and no one else, such as him saying, ‘I have dedicated my house to the eldest of the family of so-and-so’ and he is the eldest of them; the endowment would be valid. This method is used by some people to prevent themselves from selling, but Imam Abū Ḥanīfah says that it is permissible to dedicate an endowment to oneself. While it is the opposite of the most correct position in the school of ash-Shāfiʿī, his proof is strong. He says, ‘If someone deserves something then it is an endowment, and if he doesn’t deserve it then it’s a case of ownership.’
And there are exceptions to the most correct position regarding the validity of dedicating an endowment to oneself, and they include bringing the idea before the ruler and the ruler regarding it as valid. Al-Khaṭīb stated this in al-Mughnī and it is acted upon today, because his ruling has not been nullified.
In the Ḥanbalī School it is valid to dedicate an endowment to oneself, and one must follow the proper procedures in the courts and registers. Abū Ḥanīfah allows for an endowment to be temporary, and then it becomes inheritance, and this is beautiful for whoever wants to do so.
The Shāfiʿīs have said that it is not allowed to replace anything from the furnishings or doors as long as they are fit for use, unless it is possible for them to be used in the same endowment, such as making them pieces of wood that can be used to cover the roof, in which case it would be permissible to change them.
In al-Minhāj:[5] ‘The most correct position is that it is permissible to sell the mats of the masjid if they have deteriorated and its columns if they are broken and only fit for burning.’
What’s strange is the words ‘if they have deteriorated’, because if they’ve reached that state, who will buy them?
Likewise, regarding replacing the old doors on an endowment for new ones, the jurists have said that is not allowed, because removing and pulling out the doors of masjids and putting other doors in their place while the original ones are still fit for use will deny the endower his reward for them, and this constrains the renewal and renovation of endowments.
If we wanted to install other doors that were harder, stronger, more solid and more beautiful, then why the prohibition? Even if we wanted to transfer the old doors to another endowment, such as from one masjid to another, they would say that it is not allowed, because they have been dedicated to this masjid.
However, Al-Sayyid ʿAlawī ibn ʿAbdullah Al-Saqqāf, when he rebuilt the masjid of Imam Ṭaha ibn ʿUmar Al-Saqqāf in Seiyun,[6] he transferred some of the old doors to other masjids, such as the masjid of Al-ʿAidrūs. He, i.e. Al-Sayyid ʿAlawī, is a great jurist, so he must have found a proof for that to be allowed.
If the doors are sold – according to the position of Imam Abū Ḥanīfah, we are subjected to another problem, because he says that the value is spent on the endower’s inheritors. The priority would be to spend it for the benefit of the masjid, if they consent to it. This is if they are limited in number. If they are not limited in number and it is not possible to include all of them, then it becomes clear that the money is spent in the same way that lost money is spent.[7]
An illustration of an endowment would be for Zayd to say, ‘I have dedicated this house to the poor.’
_____________________
[1] Ar. munqaṭiʿ
[2] (tn): i.e. and not the masjid
[3] Ar. thumma
[4] (tn): i.e. even when there is no compulsion
[5] (tn): i.e. by Imam Yaḥyā An-Nawawī
[6] (tn): a city in Ḥadramawt
[7] (tn): i.e. it is spent towards the interests of the Muslims
[8] One writes in the form of the endowment, ‘All praise be to Allah. To proceed: Zayd has dedicated and retained his well-known house for the benefit of the poor, and it is a valid, everlasting endowment that it not be sold, given as collateral, taken ownership of [because now it belongs to Allah], transferred or replaced. It is a valid endowment in the Revealed Law and it fulfills all the legally considered conditions. He has begun by looking at himself [i.e. to be responsible for it] and then the most mature of his children and then their children, and this is how things shall remain forevermore as long as he has progeny.’ Then one writes the date.
No comments:
Post a Comment