Section Four
Entailment (Al-Waqf)
Waqf is: when the owner of an asset taking the asset out of his ownership and entailing it for people to benefit from it without the party for whom it is entailed having authority of transferring it from his (the owner's) ownership. The scholars have added to the waqf a section they called ‘tahbis’, which is: habs, i.e. entailment by the owner of the asset’s benefit to a person or organisation for a period of time without taking the asset out of his ownership. The difference between waqf and tahbis is that the former is perpetual and the owner takes the asset out of his ownership, while in the latter it is not the case in both these aspects.
(A) Types of waqf and its form
954. Regarding ownership by the beneficiaries of both the asset and benefit, or of the benefit without owning it, waqf is divided into two types:
First: specific waqf, which is when a person makes something a waqf for another person or a group of people, or something else specified, such as a mosque and an orphanage etc.
Second: general waqf, which is when a person makes something a waqf as a general thing, which is either human which is given to individuals for all time, such as a waqf for the religious merji‘, scholars, travellers, the poor etc, or something which cannot be applied to specific things, but it is intended to facilitate charitable or good deeds using it; in this case it is given the term ‘al-Jihah’, such as making a farm a waqf to provide revenue for treatment of the ill, or feeding the poor in general, or for religious teaching and similar general endeavours and good causes.
955. Regarding specific waqf, the asset made waqf and its benefit come under the ownership of the beneficiary if the the person who made the waqf announced the form of the waqf, especially if he declared formally or wrote down that they would become the owners; in these cases, the asset made waqf will have all ownership consequences including khums, zakāt – when their conditions are met – selling any gains that accumulate, renting the benefit, inheritance etc, unless he made conditional the actual benefiting, in which case it is not allowed to transfer its benefit to other parties than the beneficiaries. That said, excluded from the ownership consequences is transferring the asset itself from the ownership of the beneficiary, since he has no right to sell the asset, give it as gift (hibah) or transfer the ownership in any other way.
956. The ownership of the asset in a general waqf according to the beneficiaries is as follows:
1- If the asset is made a waqf for a human party, here the asset comes into the ownership of the beneficiary, but its benefits may have three applications:
a- That the person making the waqf wants the beneficiaries to benefit themselves from the asset made waqf, such as praying in the mosque or sleeping in a hotel, then it is clear that in such benefit, compensation/exchange for it is not allowed, nor inheritance, but rather it is limited to the beneficiaries alone receiving the benefit themselves according to the fixed entitlement of the waqf.
b- That the person making the waqf wants to make a type of beneficiary the owner of the asset and appoints a guardian for distributing it to the individuals of that type who are present at any time; in this case the individuals of that type who exist then do not own their share before the guardian hands it over to them, but then if he hands it over to them, they become its owner and become allowed to dispose of it as they like.
c- That the person making the waqf wants the ownership of the benefit by the existing beneficiaries to be seen as a common property without a guardian. In this case also, they do not own their shares until after each one of them gets his share as an independent owner.
2- If the waqf is made for al-Jiheh, the jiheh is either specific (such as when designating the produce of a farm waqf to be spent on feeding Muhammad and his family), or general (such as spending its revenues on treating the ill). The asset and its benefits are owned by that jiheh in general, but in things like the spending for feeding Muhammad , his ownership of the produce follows what the person who made the waqf wanted when he made it: if his intention was that, the ruling of which will then be like the first type (specific waqf), but if his intention was to spend it on him without making him owner of the benefits, then he does not own anything except the share that the guardian gives to him, but he has the right to transfer it from his ownership by selling or the like, and it may be inherited after he dies, and has all the other consequences of ownership.
(B) Basic elements of the waqf
957. Several matters have to be observed in the waqf:
First: The form (Sighah), so it is not sufficient to show intention only without demonstrating it using words or deeds that make it clear.
Waqf is a transaction that does not need the acceptance of the other party; also, to validate it, it is not conditional that there exists the intention of qorbah, although it is a cause for reward from Allah, the Most High.
Second: Perpetuity (ta’bid), so if the person making the waqf specifies time, it is not valid as waqf, but it would be regarded as tahbis, and have the consequences of tahbis that will be explained, unless he meant waqf, in which case it becomes void.
Third: Fulfilment (tanjiz), which means making the asset ready for actual benefiting, so it is invalidated if the waqf was pending a future matter, whether certain to happen or probable, such as if he says: ‘My house is waqf if Muhammad returns from his travel’; the same if he makes it pending something that at the present time is probable (not certain), unless this present thing is required for the validity of the waqf, in which case it seems that it is acceptable, such as if he says: ‘My house is waqf if it was owned by me’ and the like.
And if he made the waqf form pending his death, the waqf becomes invalidated if he meant establishing the waqf now depends on death, not if he meant by it a will to make it waqf after his death, in which case the will be valid at the third and it must be executed after his death.
Fourth: The waqf must be for others, so a waqf for one’s self independent of others or joined to them is invalid, such as if he says: ‘My house is waqf for me’, or ‘My house is waqf for me and my brother’. It would be a kind of making waqf for one’s self if he made his house waqf and made renting it conditional, so that its rent would be assigned to pay his debts after his death, or to be spent for performing the duties of worship on his behalf or the like.
Fifth: Handing over: if the asset is handed over to the beneficiary, the waqf has been established and becomes binding; however, before handing over, it is an obligatory precaution in the ownership waqf that the person who made the waqf does not retract this during his life. If he dies and the heirs are adults, then it is an obligatory precaution that they give up the asset made waqf and leave it as waqf, but if they are young, it is more probable that the waqf is not regarded as binding, making it (the asset) inheritance for them; this is if the waqf was specific. If the waqf was general, handing over is not conditional for its validity and establishment, nor is being binding, but it becomes binding for the mere making of it, even if no one would benefit from the waqf.
958. If he made waqf for someone for whom (the beneficiary) is guardian, such as a waqf of the father for his children, and the asset is at the guardian’s disposal, handing over will be enough on behalf of those for whom he is guardian; however, if the asset is with someone else as a trust or loan, in this case he must take it (back) so that handing over on behalf of those for whom he is guardian is established.
959. The ability to hand over is not conditional when establishing the waqf, nor is it essential that the asset made waqf is at the disposal of the person making the waqf, but it is enough for securing a hand-over after that, even if it was not possible when the waqf was made; so, making a misappropriated asset waqf is valid, so is making it for absent, imprisoned or similar people who cannot be handed over – the important thing for the waqf to become established completely is handing it over to them, even if after a long time, if the conditions continue to be valid; even, immediate handing over is not obligatory even when possible after the waqf was made.
960. If the waqf is established with all its conditions, it becomes binding, whether the intention of qorbah is involved or not, making it unacceptable for the person who made the waqf to retract from it and bring the asset back to his ownership. Moreover, if he had specified conditions, format and beneficiary for it, the waqf becomes established and binding as he made it, and he has no right to replace or change it.
(C) The person making the waqf/entailer (al-Wāqif)
961. The person making the waqf, or the entailer, must be free to dispose of his assets by bolūgh, sanity, free will and not being indicted, so a child cannot make waqf even if he has reached ten years of age unless with his guardian’s permission and unless there is a potential benefit to the child from the waqf. That said, waqf made in a will by him after his death is valid if he had reached ten years when registering his will. Also, waqf cannot be executed if it was made by force, even if the entailer accepted it after the disappearance of the person doing the forcing; nor is it to be executed if he made it waqf when he was young or insane then later accepted it or his guardian later accepted it. In other words: to establish a waqf the aforementioned conditions must be present: acceptance afterwards, in case of absence of some of them, is not enough, but the waqf must be re-made after the disappearance of the obstacle.
962. ‘Al-Fodūli ’ (one who is intrusive) is a term used to describe someone who is not the owner but who establishes a transaction in the interest of the owner but without his knowledge. When established by a non-owner, it is possible that the waqf may become valid if the owner’s acceptance is later secured.
(D) The asset made waqf
963. The following things must be present in the asset made waqf:
1- It must be an asset, so a benefit separate to the asset cannot be made a waqf.
2- It must exist when the contract is made or be subsidiary to an existing waqf, such as a waqf of a tree or a waqf of the tree or an animal with its renewable produce of fruit or young; so, it is not valid to make a waqf of the fruit or the embryo before they come to existence. That said, a ruling of the validity of an existing asset before the completion of its existence is probable (but) with satisfaction of the criterion that it would be complete within its specified time, such as making an embryo waqf before it is born.
3- The asset made waqf must have a specified (external) entity, i.e. a specified existence that can be pointed to and felt, so it is not valid to make waqf a general thing that is unspecified, such as a debt that someone else owes a person before paying it back, or any unspecified sheep from a herd, and so on.
However, a share of a common property is not regarded as unspecified, but it has an existence specific to it, so it can be made waqf without any problem.
4- The asset must be specified, so a declaration involving possibilities it is not valid such as if someone who owns two houses says: ‘I have made waqf one of my houses; it may be this house or that one.’
5- The potential benefit in the asset must be allowed.
6- It must have a benefit that can be reaped with the asset remaining unaffected, such as the benefit of the shadow of a tree, or the benefit of riding an animal or obtaining milk from it etc.
7- The asset must be owned by the person making the waqf, so it is not valid to make a waqf with something that is owned by others unless they give permission; it is also not acceptable to make a waqf with something for which the Shari’ah prohibits ownership, such as aggressive, unruly (harāsh) dogs or the like.
(E) The beneficiary
964. The conditions for the beneficiary are:
1- The beneficiary must exist or will exist in the future, and cannot be utterly non-existent or someone who cannot benefit from the waqf, such as making a waqf for Muhammad who died before the waqf was made; this is in the specific waqf. In the general waqf, the existence of the beneficiary, actual or in the future, is not a condition for the validity of the waqf; as for the utterly non-existent thing, although it can be imagined in a general waqf, making a waqf for it is pointless and leads to the invalidation of the waqf.
2- It must be specified, so it is not valid if involving possibilities, such as a waqf for the benefit of either the scholars or the poor, unless if what is meant is choice, in which case it will be valid.
3- It must be allowed, so it is not allowed to make a waqf for the propagation of falsehood or the spreading corruption and vice etc.
965. Waqf is not conditional on Islam, so it is allowed for a Muslim to make a waqf for a non-Muslim amongst his relatives or others; waqf for them is valid and allowed if it comes within humanistic or charitable areas that are reasonable in Islam in general and if there is a benefit or specific merit that justifies it.
(F) Disposal of the waqf
First: The waqf guardian
966. In general, the waqf must have a guardian who supervises it, protects it and disposes of it to its beneficiaries. The person who made the waqf has more right to attain this position than any other, so if he appoints himself or another person a guardian, he or his appointee is the guardian; but if he did not appoint a guardian, then if the waqf was specific and for ownership, in this case guardianship is given to the beneficiary, and if the waqf was specific or not for ownership but to be used to spend on the beneficiary, in this case guardianship is given to the Islamic authority.
967. The person making the waqf has the right to specify the guardianship over the asset made waqf in the format, time and character that he wants – he may limit it to one guardian who has exclusive rights of disposal, or make others, one or more, join him, either for execution or supervision, and other situations that differ according to cases and people.
968. It is not obligatory on the person appointed guardian to accept this appointment, and his becoming a guardian does not depend on his approval; so if the person making the waqf appoints a guardian, he becomes a guardian even if he did not declare his acceptance and his guardianship does not become void merely by rejecting it if he accepted it after this. Also, if he accepted it, he has no right to reject it and it becomes binding. Moreover, the person who made the waqf has no right to sack the guardian unless he has made the right to sack him a condition.
969. It is not conditional that a guardian is appointed when the waqf is established, for it is sufficient that his intention was to appoint him afterwards; also, if he was unaware while making the waqf then realised afterwards, is acceptable to appoint the guardian then. However, if he did not appoint a guardian at the time of making the waqf on purpose, in this case he has no right to appoint either himself or anyone else guardian after that.
970. The guardian should qualify to dispose of the waqf by bolūgh, sanity and reasonable conduct; so neither Islam nor righteousness (‘adāleh) are conditional, but it is sufficient if he had the ability to manage the waqf even if through the co-operation of experienced people, and he should be trustworthy, especially in a general waqf; the same applies to supervisors (of the waqf).
971. It is allowed for the person who made the waqf to allocate for the guardian some of the growth of the asset made waqf as a payment for carrying out the guardianship duties, according to the payment that the person who made the waqf sees as suitable. But if he did not allocate a payment for him, it is allowed for the guardian to take the amount equal to the payment for similar work, if there is a common rate of payment for his work.
Second: The disposal
It was mentioned earlier that benefiting from the waqf must be limited to what the person who made the waqf had specified for its disposal. However, he might not have detailed the disposal; there are various reasons why this might become an issue:
972. If the asset was made waqf for a particular benefit, such as a building for living in, it is – from the principle standpoint – not allowed to change it to another benefit; this may be seen in two situations:
1- If it is known that the intention of the person who made the waqf was to keep that usage forever, either by stating it or through indications that imply that, it is not allowed to change it, such as a building for living in being changed into a shop and the like. Moreover, changes from what it is probable that he intended are not allowed.
2- If none ofof (1) above apply, but the aim of the usage for which it was made waqf was an abundant benefit then it was reduced not because of some temporary reasons but continuously, in this case it is allowed to change it to something that is more beneficial.
973. Legitimate conditions set by the person making the waqf are valid and must be observed; so if he made it conditional that the house made waqf is not to be rented for more than one year, or requires immediate disposal by the beneficiaries, for example, it must be implemented according to his conditions.
974. Things made waqf for general usage, such as mosques, libraries and the like, may be benefited from by a usage other than those specified in the waqf if it is not contradictory or harmful to the original one; so there is no problem in sitting in the mosque for purposes other than worship, such as giving lessons and the like.
975. If something was made waqf to be spent on one or more dead persons, it must be spent in his/their interest, prioritising according to importance; so if there is a debt and a pilgrimage which was obligatory due to ability to perform it, these must be given priority over other worship obligations, (and so on) until reaching the non-obligatory.
976. If something was made waqf so that its revenues are spent on a mosque, public library or other public establishments, the revenues must be spent according to what is suitable for the beneficiaries and its needs; a waqf for a mosque, for example, may be spent on renovations, carpets, lighting and the like which are all regarded as part of it; the same applies to other entities besides than mosques.
Third: Rulings regarding damage to the waqf and situations in which its selling is allowed
977. If some parts of the asset made waqf or its accessories are subjected to damage so that it can no longer be benefited from at all, such as if a tree in a farm gets uprooted, or some of the furniture gets worn out, there may two scenarios:
1- If the person who made the waqf had made the asset for benefiting in a specific way, such as a farm that is a waqf for a mosque for example, and the damage cancelled the benefit intended by the person, in this case it is allowed to sell it and the revenue from the sale must be spent on the rest of parts if they need it, otherwise it should be spent on the beneficiary.
2- If not the same as above, but rather a kind of waqf – specific or general – such as a farm the revenue from which is made waqf for the poor (a general usage) or for the offspring of Muhammad (a specific usage), in this case it must be spent on them. The same ruling applies if the person who made the waqf wanted the asset to be used in a special way then some of it got damaged; in this case if it was possible to benefit from the asset made waqf in other ways, such as a dry tree to be used as a pole or a ceiling in the farm, it becomes obligatory, otherwise, it is allowed to sell it and to use the revenue from the sale in the same manner on the farm if it needs it, otherwise it must be spent on the beneficiary.
978. If something happens to some of the parts of the asset made waqf or its accessories that calls for getting rid of it although it is still useable, such as the mosque carpet if a new and better carpet is laid to replace it, here:
1- If it can be used as it is, in this case if it can be used in the place it is made waqf for, even if in another benefiting way, such as using the carpet as a curtain from hot or cold for example, it is obligatory to keep its waqf status and use it in its place; but if it can no longer be used in any way in its place and it is feared that it may be destroyed or lost if it is kept unused, here it must be used in another place that is similar to the first, if it was a kind of waqf made for immediate benefit, such as mosques, boarding schools, Husainiyyehs and the like. But if it was a waqf the revenues from which are to be spent on the beneficiary, then it should be sold and the revenue from the sale is to be spent on the asset if it needs it, otherwise on the beneficiaries, such as the poor or the offspring of Muhammad .
2- If it cannot be benefited from if it stays as it is and if it stayed as it is, it would be destroyed or lost, in this case it must be sold and the revenue from the sale is to be spent on the premises if they need it, otherwise on a similar place if it was for immediate general use; but if there is no similar place, it should be spent for any good cause; if it was not for general use, then it must be spent on the beneficiaries.
979. It is not allowed to sell a waqf except in the following cases:
First: If it was subjected to damage, preventing benefiting from it in the manner for which it was made waqf, such as a slaughtered animal, an old tree-trunk, a knocked down building and the like, or if little, appreciable benefit was left, or if it was subjected to some causes of damage that if sustained it would lead to damage that would cancel any appreciable benefit from it, in these cases it can be sold; but selling it shall, however, be delayed until such time that all its benefits are exhausted (but) before the damage sets in it, such as a building which suffers cracks, a farm the soil of which turns saline and the like.
Second: If major dispute takes place between the beneficiaries, which would only happen if the waqf was of the ownership type, for the offspring or others, not if it was for spending on them, or in other types of waqf. If such a dispute takes place and it is feared that it would lead to disputes that harm the persons and the assets and it is not possible to reach an agreement between them, nor control the dispute, except through selling, in this case selling is allowed, rather it becomes obligatory. If it is possible, after selling it, to buy an asset similar to the sold one and establish it as a waqf on the same lines as the first one without causing a new dispute, this becomes obligatory as a precaution.
Third: If the person who made an asset waqf had made selling conditional if something takes place, either because of loss of benefit, or if selling it is more beneficial, or if the beneficiaries need the revenue from the sale, or the like, where the person who made the waqf has dictated as conditions.
980. If selling the waqf becomes allowed, then if it was of the specific ownership type that the beneficiary himself is in control of, in this case he does not need the permission of anyone to sell it; if the waqf has a designated guardian, he has the right to sell it when appropriate and the others will have to seek his permission to sell it, otherwise the Islamic authority (al-ākim ash-Shar‘ī) will have to be referred to for permission for the sale as an obligatory precaution.
Epilogue
Tahbis entailment and its 'sisters'
We have mentioned previously that tahbis is similar to waqf in entailing the asset in order to gradually reap its benefit, but that it is different in being not based on taking the asset out of the owner’s ownership, but it remains in his ownership and to be inherited by his heirs, and the one to whom it is entailed has no right to dispose of it as the owner by selling, buying etc. The 'sisters' of this form of entailment (tahbis) are:
First: As-Soknā (derived from sakan, i.e. living), which is a name for tahbees if the asset is a house or the like which is entailed for specific kinds of living, such as a hotel, boarding school etc.
Second: Al-‘Omrā (derived from ‘omr, i.e. time or age), which is a name for any tahbis the time of which equals the age of the person making the entailment or the what is entailed, whether the asset is a house, a book or anything else.
Third: Ar-Roqbā (derived from raqabah, i.e. soul), which is a name for any tahbis the time of each is less than the age of one of them, whatever the entailed asset.
These three are specific for the cases where the beneficiaries are specific individuals, one or more, but if the tahbis is to a jihah or general entity, it is only called ‘habs’.
981. The ruling of tahbis is not different to that of waqf in that to establish it it must be done by something that identifies it, whether wording or acts, and it does not need the acceptance of the beneficiary, and it does not depend on the existence of the intention of qorbah, and it becomes binding after handing it over, even before handing it over if it was for a jihah, even if to a person as an obligatory precaution, and other conditions mentioned in the waqf, except what relates to perpetuity and taking the asset out of the ownership of the entailer.
982. If the entailer dies before handing the entailed asset to the beneficiary and the heirs are young, the entailment will not be binding and the asset returns back to the heirs.
983. If the owner established the tahbis and did not declare a certain duration for it, here are two situations:
First: If the jihah for which he entailed the asset is limited and is not continuous, such as a certain person, in this case the entailment is cancelled when the entailer and the asset returns as an inheritance for his heirs; but it seems that it is binding on him during his life and he has no right to retract from it.
Second: If the jihah is not limited, but it is continuous, such as scholars and the poor, in this case the tahbis stays as it is and in force as long as the asset exists, and when the asset is no longer beneficial, it returns to the ownership of the entailer.
984. If the entailer declared continuity and perpetuity for it, it seems that it is a waqf in the form of tahbis, in which case the rulings of waqf apply.
985. Since the asset in habs does not leave the ownership of the owner, the owner can, then, sell the entailed asset without its benefit without invalidating the entailment or contradicting it; the beneficiary, however, has no right to sell the benefit or to transfer it away from him himself because he is clearly not an owner.