Islamic Fiqh > Endowments (waqf) and property > Managing a waqf: the nazar (custody) > Second case: remuneration assessed by the judge
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Updated on 27 September 2026 at 3:52 AM
This part belongs to the full section: All sections of this part.
If the endower stipulated nothing, is the nazir entitled to a wage? May the judge assess it? And may it exceed the wage of the like?
The majority of jurists (Hanafis, Malikis, Hanbalis) answer that if the endower stipulated nothing, the judge may give the nazir a wage from the endowment's revenue: for the Malikis, according to what his ijtihad requires; for the Hanafis and the Hanbalis, without exceeding the wage of the like.
The Hanafis: if the endower fixed something for him, it is his, much or little, according to the stipulation, whether he works or not, for it was not made in return for work. If the endower fixed nothing and the judge fixes the wage of the like, it is permitted; if he fixes more, the excess over the wage of the like is withheld, provided he works; otherwise he earns nothing. Ibn Abidin notes that al-Ashbah states this in the chapter on claims; and if the judge appoints him without fixing anything: if the custom (ma'hud) is that he works only for the wage of the like, he obtains it, custom standing as stipulation; otherwise nothing is his. "Seize this clarification: one must return to it; it is the understood meaning of their words and what is scattered throughout their statements" (Tanqih al-Fatawa al-Hamidiyya 3/87; al-Bahr al-Ra'iq 5/264; Ibn Abidin 4/451).
Ibn Nujaym (may Allah have mercy on him) quotes al-Quniyya: a judge is removed; the caretaker claims the removed judge granted him such and such, an honorific allowance or assistance, and the removed judge confirms him: this is accepted only with evidence; then, if what was fixed equals the wage of the like of his work or less, the second judge gives it to him; otherwise he reduces the excess and gives the remainder. It follows that the second judge reduces what exceeds the wage of the like: therefore a judge's confirmation of a nazir beyond the wage of the like is invalid (al-Bahr al-Ra'iq 5/264).
The Hanbalis: if the endower named nothing for the nazir, the madhhab by analogy: if he is known for taking the wage of the like for his work, that is, accustomed to taking compensation for his work, he obtains the wage of the like; otherwise, if he is not accustomed to taking compensation, nothing is his, for he is a volunteer in his work. Al-Buhuti (may Allah have mercy on him) says: this is clear for the nazir's worker; as for the nazir himself, it was stated earlier that if nothing is named for him, he eats in a proper manner (Kashshaf al-Qina' 4/328).
Al-Buhuti quotes beforehand this word of the shaykh Ibn Taymiyya: when the nazir neglects, what was allotted to him decreases in proportion to what he neglected of the obligatory work upon the endowment: what was assessed for him is distributed over what he did and did not do, and the share of what he did not do falls away.
This statement is supported by al-Ahkam al-Sultaniyya concerning the administrator: he earns what was fixed for him if the fee (ju'l) is known; if he neglects part of the work, he does not earn the part corresponding to the neglected work; if the work was done but with cheating by the administrator, he earns the fee for the existence of the work, and no more, even if his work is worth more than what was fixed for him, for the one who fixed it did not commit to that. If the fee is unknown and does not come from the property of disbelievers, the fee contract is defective and the administrator receives the wage of the like; if the fee was assessed in the register (diwan) and several administrators worked by that amount, it is the wage of the like, which the unnamed administrator earns, for the apparent agrees with the actual (Kashshaf al-Qina' 4/328; al-Furu' 4/450).
The Malikis: supervision of the reserved property belongs to whom the endower designated; he gives it to someone he trusts in religion and honesty; if he neglects this, supervision belongs to the judge, who appoints whom he approves, and the caretaker is granted, from the rent of the endowment, what the judge deems appropriate according to his ijtihad (al-Taj wa-l-Iklil 4/579; Mawahib al-Jalil 7/499; Manh al-Jalil 8/148).
Al-Hattab (may Allah have mercy on him) reports from Ibn 'Arafa, from Ibn Fattuh: the judge may grant the one he appoints to supervise the reserved properties a known monthly provision, which he assesses by his ijtihad according to his work; the imams acted thus.
Ibn 'Attab, from al-Mushawwir: his wage comes only from the treasury; if he took it from the reserved properties, it is taken back from him and his wage is restored to the treasury; if it is not given from it, his wage is upon Allah. Nothing was allotted to him from these properties because that would alter the pious bequests. On this word of al-Mushawwir, Ibn Ward ruled: it is not permitted to take his wage from the reserved properties except by charging the one who made the endowment. Abd al-Haqq and Ibn 'Atiyya disagreed with him and said: this is permitted, and I know of no contrary text; al-Burzuli transmitted the words of Abd al-Haqq and Ibn 'Atiyya.
And Allah knows best (Mawahib al-Jalil 7/502-503).
The Shafi'is: if the endower stipulated no wage for the nazir, the latter earns no wage on the sound view, like the washerman; if he takes anything from the endowment's property, he guarantees it, and he is not released from liability without actually taking possession (qabd). He may nevertheless refer the matter to the ruler so that the wage of the like is fixed for him, even if he is wealthy, like the orphan's guardian; and this is safer for the endowment. According to another statement, the lesser of his maintenance and the wage of the like is assessed for him.
Ibn al-Sabbagh ruled that he may do so independently, without a ruler (continued in the next case).
Al-Shirwani (may Allah have mercy on him) adds: one may ask what the ruling is if the ruler is absent in that place or referral to him is impossible for fear of the corruption he would cause to the endowment: may the nazir then act independently as described? This requires consideration; on the first view, it is possible that this is the meaning of Ibn al-Sabbagh's words, as long as no explicit text of generalization has reached us from him. And Allah knows best. The commentator "Sayyid Omar" adds: what precedes in the commentary, just before the branch, supports the first view, but the safer course is to arbitrate a pious scholar who fixes what has been mentioned (al-Shirwani's glosses on Tuhfat al-Muhtaj 7/548; Mughni al-Muhtaj 3/482; al-Najm al-Wahhaj 5/524; Nihayat al-Muhtaj 5/459; al-Dibaj 2/535; al-Jamal's gloss 3/592).
The jurists differ when the endower stipulated nothing for the nazir and the judge fixed no wage: does he earn a wage in return for his work?
The Hanafis: if the judge appointed him without fixing anything, it is examined: if the custom is that he works only for the wage of the like, he obtains it, custom standing as stipulation; otherwise nothing is his, as Ibn Abidin reports (Ibn Abidin 4/397; Tanqih al-Fatawa al-Hamidiyya 3/87).
Ibn Nujaym (may Allah have mercy on him) adds: if he is the judge's appointee, he has the wage of the like; but does he earn it without the judge's assessment? In al-Quniyya a first statement: if the judge appoints a caretaker absolutely without fixing a wage and the caretaker labors for a whole year, nothing is his. A second: the caretaker earns the wage of the like of his effort, whether the judge or the people of the place fixed a wage for him or not; for he accepts the burden only with a wage, and custom stands as stipulation (al-Bahr al-Ra'iq 5/264).
Ibn Abidin, after Ibn Nujaym's words: al-Ramli succeeded, in his glosses, in applying the first statement to the case where no custom of paid work exists (Tanqih al-Fatawa al-Hamidiyya 3/84).
The Shafi'is: if the endower stipulated nothing, the nazir earns no wage on the sound view. Ibn al-Sabbagh ruled that he may act independently without a ruler. And al-Shirwani, as noted above, holds it possible that this is the meaning of Ibn al-Sabbagh's words, but that the safer course is the arbitration of a pious scholar.
The Hanbalis: if nothing is named for the nazir of the endowment, there are two views. The first: he eats from the endowment's produce in a proper manner, whether needy or not, by analogy with the collector of zakat (Sharh Muntaha al-Iradat 3/490; Matalib Uli al-Nuha 3/418). The second: if he is known for taking the wage of the like for his work, that is, accustomed to taking compensation for his work, he obtains the wage of the like; otherwise nothing is his, for he is a volunteer (Kashshaf al-Qina' 4/328; al-Furu' 4/451; al-Insaf 7/64).
The Malikis did not state a position on the case where neither the endower nor the judge fixed anything.
The jurists of the four schools expressly state that the nazir's function is to safeguard the endowment, maintain it, rent it, collect its revenue and do everything that benefits it.
The Hanafis say the administrator must manage the endowment's interests: maintenance, exploitation, selling produce, spending what has accumulated according to the endower's stipulation; he is required to perform personally only the like of what his peers do, and he must not fall short of it; what laborers and agents do is not obligatory upon him, to the point that if authority is given to a woman with a known wage, only the like of what women customarily do is required of her.
If the beneficiaries of the endowment dispute the caretaker and tell the ruler: "The endower granted him this only in return for work, and he does nothing," the ruler does not impose on him work beyond what administrators do; if an illness strikes him while he can still command, forbid, take and give, he is entitled to the wage; otherwise, no wage. If the beneficiaries impugn his trustworthiness, the ruler removes him only for manifest treachery with evidence; if he wishes to add another man alongside him, he may, and his known share remains his; if he wishes to grant the newcomer a share of his known sum, this is accepted; and if he sees him overburdened and assigns the newcomer a fixed amount from the endowment's produce, this is permitted; he should be moderate in what he grants himself from the produce (al-Is'af p. 53-54; al-Bahr al-Ra'iq 5/263).
The Shafi'is: the mutawalli's function, whether absolute or delegated, encompasses all matters of maintenance, renting, collecting the produce, dividing it among the beneficiaries, and preserving the principal and the revenues with precaution, for this is the custom (ma'hud) in its like. Likewise borrowing upon the endowment in case of need, if the endower stipulated it or the judge permitted it, whether with his own money or another's. If the endower delegated to him only part of these matters, he does not exceed it, following the stipulation like an agent. The endower may appoint a mutawalli for part of the matters and another for the rest: maintenance and collecting the produce to one, preserving and dividing among the beneficiaries to the other; or stipulate preservation and the hand for one, and disposal for the other (Rawdat al-Talibin 4/165; Mughni al-Muhtaj 3/482; Tuhfat al-Muhtaj 7/544, 546; al-Najm al-Wahhaj 5/523; Nihayat al-Muhtaj 5/458-459; Kanz al-Raghibin 3/267; al-Dibaj 2/535).
The Hanbalis: the nazir's function is to safeguard the endowment, maintain it, rent it, cultivate it, litigate over it, collect its revenue (wage, cultivation or fruit), strive to increase it, and spend it in its designated channels: maintenance, repair, payment to the beneficiaries, and buying the food or drink the endower stipulated; for the nazir is the one charged with the endowment, its preservation, its revenue and the execution of his endower's stipulation; and seeking a lawful share in this work is required by the sharia: it therefore belongs to the nazir.
The nazir is entitled to place his hand upon the endowment and its revenue, and he holds the power of confirmation in his functions; this is mentioned for the nazir of the mosque: he appoints those who perform its functions (the imam, the muezzin, the caretaker and others), just as the beneficiary-nazir may appoint those who manage its interests, such as a collector or a guard. Al-Harithi said: when he refrains from appointing the one whose appointment is obligatory, the ruler appoints in his place, as in the guardian's withholding in marriage (al-Insaf 7/67; Kashshaf al-Qina' 4/325; Manar al-Sabil 2/335).
Abu al-Walid Ibn Rushd al-Qurtubi (may Allah have mercy on him) said: if one reserves property for his children, all of them minors, their father's possession counts for them if he testifies on their behalf and settles their sadaqa or their reservation; he is then the one managing their affairs and their nazir for the rent, the fruit, or what the sadaqat need of repair and maintenance (al-Bayan wa-l-Tahsil 12/268).
The plurality of nazirs: the jurists of the four schools agree that an endowment may have more than one nazir, one, two or more.
They nevertheless differ when the endower assigns supervision to two: may either of them act alone without the other? Abu Hanifa, the Shafi'is and the Hanbalis answer no: if the endower assigned the endowment to two nazirs, the disposal of one of them independently of the other is invalid.
The Shafi'is specify: if supervision is delegated to two, neither disposes alone without explicit mention; if supervision is given to two upright men among his children and only one is upright, the judge adds another upright man; if it is stipulated for the most discerning of his children and each of them proves to be the most discerning, they share supervision without independence, as long as capacity exists among them, for the quality of "most discerning" fell away through the conflicting evidence while the origin of discernment remained; if superior discernment is found in one of them, supervision is exclusively his, acting upon the evidence; and the most discerning among the grandchildren includes the most discerning of the daughters' children, for the description truly applies to him (Mughni al-Muhtaj 3/482; al-Najm al-Wahhaj 5/523).
The Hanbalis: if supervision is stipulated for two or more, the disposal of one without the other is invalid, absent a stipulation by the endower, like the two agents or the two executors of one person. If the endower stipulates for each of them ("I made supervision belong to each of the two"), it is valid; or if he gives disposal to one and the hand to another, it is valid; or if he gives the maintenance of the endowment to one and collecting its revenue to another, it is valid: each has what was stipulated for him, for one must abide by his stipulation. If supervision is stipulated for the two most excellent of his sons and only one of the two is found excellent, a trustworthy man is added to him, for the endower was not content with a single one; likewise if he gave it to two and one of them died or was removed (al-Mughni 5/377; al-Mubdi' 5/337; al-Insaf 7/59; Sharh Muntaha al-Iradat 4/360; Matalib Uli al-Nuha 4/337; Kashshaf al-Qina' 4/329-330).
Al-Mardawi (may Allah have mercy on him) reports from al-Harithi: if supervision is assigned to two, neither of them disposes without a stipulation; likewise if the ruler or the nazir assigns it to them. But if it is stipulated for each of the two, each disposes independently, for each of them holds supervision independently. In al-Mughni: if the beneficiary is nazir, whether by stipulation or for lack of a stipulated nazir, and he is alone, he disposes independently; if they are a group, supervision belongs to all, each in his share. End of quotation.
Al-Harithi concludes: the apparent is that the individual, in the case of a joint stipulation, does not dispose independently of his share, for supervision is assigned to all: partnership is required in all supervision, and every supervision is shared.
If supervision is assigned to two upright men among his sons and only one remains, or one of them refuses or dies, the ruler installs another in his place, for the endower was not content with one. If he made each of them independent, there is no need to install another: the substitute is dispensable and the wording does not indicate it.
If supervision is assigned to the most excellent, then the next most excellent, of his sons, and the first refuses: does it pass to the ruler during his lifetime, or to the one after him? The same disagreement arises as when the first group refuses: so said al-Harithi. (Al-Mardawi adds that this is close to the case where the nearest guardian withholds: does authority pass to the ruler or to the next guardian? as comes in the author's words on the pillars of marriage.) If one is designated for his merit and then someone more excellent than him appears among them, supervision passes to him, the stipulation being present in him (al-Insaf 7/58-59).
Ibn Nujaym (may Allah have mercy on him) said: what the endower stipulated for two, neither of the two may do alone, unless the endower stipulated replacement for himself and for the other: then only the endower may act alone, not such a one, as in the Fatawa of Qadi Khan.
The import of this rule: if the endower stipulated for the two the power to add and remove (new nazirs), neither of the two has this power, even after the other's death: that stipulation becomes void upon the death of one of them. Likewise if acting alone was stipulated for both and one of them dies: the judge installs another in his place, and the survivor may not act alone unless the judge installs him, as in al-Is'af (al-Ashbah wa-l-Naza'ir p. 197-198).
Ibn Abidin (may Allah have mercy on him) comments: the phrase "or supervision" indicates the acknowledgment (iqrar) of supervision over the endowment's revenue: if the nazir acknowledges that such a one deserves with him half of the supervision, he is bound by his acknowledgment, and that man shares the function as long as both live. What remains is the death of one of them: if it is the one who acknowledged, the ruling is apparent: the acknowledgment becomes void and supervision passes to whom the endower stipulated after him. If the one acknowledged dies, a frequent question, to which Ibn Abidin says he was often asked: the judgment demanded by reason is the nullity of the acknowledgment as well; but the acknowledged share does not return to the acknowledger; it is the judge who directs it to the acknowledged one or to whom he wills among the beneficiaries of the endowment, since we validated the acknowledgment on the assumption that the endower provided for it for the acknowledged one, as in al-Khassaf: it is then as if he had given supervision to two.
In al-Ashbah: what the endower stipulated for two, neither of the two may do alone; when one of them dies, the judge installs another; and the survivor may not act alone unless the judge installs him, as in al-Is'af. One cannot say here that what was acknowledged passes to the poor, as we said for the acknowledgment of the produce: the poor have no right in supervision; their right is only in the produce.
Ibn Abidin concludes this passage: "this is what I clarified in Tanqih al-Hamidiyya, without seeing anyone point it out: seize it" (Ibn Abidin 4/442). And Abu Yusuf, among the Hanafis, holds that each of the two may dispose independently (al-Is'af p. 50; Ibn Abidin 4/397).
Among the Hanafis: the endower may grant the mutawalli of the endowment a general delegation by way of independence, by installing him in his own place and giving him the right to assign supervision and bequeath it to whom he wills. In that case the nazir may delegate supervision to another during his lifetime and good health, as well as in a mortal illness; but he cannot remove unless the endower granted him both delegation and removal. If the delegation granted to him is not general: if he delegates while in good health, it is invalid; if he delegates in a mortal illness, it is valid, and he must have the removal and the delegation like a bequest. Assignment during good health is different: for in good health he is like an agent, and an agent has no power of removal (Ibn Abidin 4/425-426).
The Shafi'is: if the endower says "I made supervision belong to such a one, with the right to delegate it to whom he wants," and he delegates it to a person, does the delegator's supervision cease, or is the delegate his agent? The point of the question: if the delegator dies, does supervision remain with the delegate; and if the delegate dies, does it return to the delegator or not?
Al-Khatib al-Shirbini (may Allah have mercy on him) quotes the author's Fatawa: if the endower stipulated supervision for a man and granted him the right to assign whomever he wills, and assignment follows assignment until an assignment to a person: does the assignor have the power to remove the assignee? Does supervision return to the assignor? And if the assignor or the assignee assigns to a third, may the first remove him? Answer: the assignor has neither the removal of the assignee nor a share with him; supervision does not return to him after his death; and neither he nor the second has the removal of the third to whom the second assigned (Mughni al-Muhtaj 3/482-483; Tuhfat al-Muhtaj 7/549).
The Hanbalis: the nazir by origination (the specific beneficiary, and the ruler in the case of an endowment for unspecified persons without designation by the endower) may appoint an agent in his place and remove him, because of the origination of his authority, like one disposing of his own property and the ruler's disposal over the orphan's property. As for the stipulated nazir, he has neither the appointment of a nazir nor a bequest of supervision, for his supervision derives from the stipulation and nothing of the kind was stipulated for him, unless it was stipulated that he appoint whom he wills or bequeath: then, if he bequeaths it, he becomes its owner. But if the beneficiary is himself the one stipulated, it is more likely that he has the power of appointment, because of the origination of his authority, the stipulation standing as a confirmation of the effect of the endowment in his favor (Kashshaf al-Qina' 4/329; Sharh Muntaha al-Iradat 4/360; Matalib Uli al-Nuha 4/330).
The Hanafis: it is incumbent upon the judge to audit the trustees over orphans' property and its produce every six months, or every year as he sees fit, to examine whether they have rendered the trust in what was entrusted to them or betrayed it; if they rendered the trust, he confirms them; if they betrayed it, he replaces them. Omar (may Allah be pleased with him) audited the trustees every year; the same applies to those in charge of endowments: he accepts their word on the amount of produce and property collected, the executor and the caretaker being equal in this; for the principle in the sharia is that the decisive word is the judge's word regarding the amount received and what they report of endowments made for the orphan or the estate, and of what was spent on the costs of the lands: if he is an executor, his word is accepted in what is plausible, not in what is not (al-Muhit al-Burhani 8/513; al-Bahr al-Ra'iq 5/262; al-Fatawa al-Hindiyya 3/349).
Ibn Rushd, concerning the nazir of an endowment made for women: if they are not capable of managing their own affairs and it is established before the ruler that he manages poorly and is untrustworthy, it becomes necessary to remove him and appoint another, disregarding the approval of the women who had approved him (al-Bayan wa-l-Tahsil 12/223; Mawahib al-Jalil 7/501-502).
The Hanbalis: the beneficiaries of the endowment may demand that the nazir have copies of the endowment deed made, so as to hold documented copies, and inquire about its condition.
Ibn Muflih (may Allah have mercy on him) reports that their shaykh argued with the Prophet's (peace and blessings of Allah be upon him) auditing his administrator of the sadaqa, although he held the power to dispose of it and the beneficiaries were unspecified: here it applies a fortiori. His text: if he is suspect and they are not content with him; and appointing the general collector who gathers the scattered workers follows need and interest; if the collection of money and its spending cannot be accomplished except through him, it becomes obligatory. He may dispense with him when workers are few, the imam acting and auditing himself, like the imam himself holding judgeship; this is why the Prophet (peace and blessings of Allah be upon him) personally handled judgment and the settling of accounts in Medina, while still appointing despite the distance; their shaykh mentioned it (al-Furu' 4/453; al-Mubdi' 2/214; Majmu' al-Fatawa 31/86-87; Kashshaf al-Qina' 4/335; al-Insaf 7/68).
Among the proofs of auditing administrators is this report transmitted by the two shaykhs (al-Bukhari and Muslim) from Abu Humayd al-Sa'idi (may Allah be pleased with him):
The Prophet (peace and blessings of Allah be upon him) appointed Ibn al-Lutaybiyya over the sadaqat of Banu Sulaym. When he came to the Messenger of Allah and the latter audited him, he said: "This is what is yours, and this is a gift that was given to me. The Messenger of Allah said: "Why did you not sit in your father's and mother's house until your gift came to you, if you are truthful? Then the Messenger of Allah stood, addressed the people, praised Allah and extolled Him, then said: "As for what follows: I appoint men from among you over some of the affairs Allah has entrusted to me; then one of you comes and says: this is what is yours, and this is a gift that was given to me.
Why did he not sit in his father's and mother's house until his gift came to him, if he is truthful? By Allah, none of you shall take from it anything without right, except that he comes to Allah carrying it on the Day of Resurrection. Let no man come to Allah carrying a bellowing camel, a lowing cow or a bleating sheep. Then he raised his hands until I saw the whiteness of his armpits and said: "O Allah, have I conveyed?
Have I conveyed? My eye has seen and my ear has heard."
Narrated by al-Bukhari (6772) and Muslim (1832)
Al-Nawawi (may Allah have mercy on him) said: this report establishes the auditing of administrators, to know what they collected and spent (Sharh Sahih Muslim 12/220).
The hafiz Ibn Hajar reports that al-Muhallab said: the report of this chapter is a foundation for auditing the trustee, auditing being the correction of his trust. Ibn al-Munir said in the gloss that it is possible the administrator spent part of the zakat in its designated categories and was audited on what he collected and spent; and from all the transmission routes it appears, said Ibn Hajar, that the cause of demanding his audit was the sadaqa money found with him while he claimed it had been given to him as a gift (Fath al-Bari 3/366).
Shaykh al-islam Ibn Taymiyya (may Allah have mercy on him) said: this report is a foundation for auditing the scattered workers (Majmu' al-Fatawa 31/86). And Ibn al-Qayyim (may Allah have mercy on him) said: it contains a proof for auditing workers and trustees: when their treachery becomes apparent, they are removed and a trustworthy man is appointed (Zad al-Ma'ad 3/509).
There is no disagreement among the jurists of the schools: the nazir's hand over the endowment's property is a hand of trust (amana), not a hand of aggression: he guarantees only if he transgresses or neglects.
Ibn Abidin (may Allah have mercy on him) reports that our scholars (may Allah have mercy on them) explicitly declared that the nazir's hand over the endowment is a hand of trust, not of aggression. In al-Quniyya it is said that our scholars declared it unanimously, and in al-Dhakhira: if he sold the land, took its price, and the price perished in his hand, no guarantee falls upon him, the price being a trust with him; and the taking of the money by the judge and his aides is like the taking of robbers. "Many of our later scholars said of the judges of their time: they bore the name of judges while being more deserving of the name of thieves" (Tanqih al-Fatawa al-Hamidiyya 3/78; see Majma' al-Damanat 2/687; Sharh Fath al-Qadir 6/241; al-Ashbah wa-l-Naza'ir p. 273).
The removal of the waqf nazir and who holds the right of removal: when the endower appoints a nazir over his endowment, may he remove him for any reason? And may the judge also remove him? The jurists differed on this.
First case: the endower's removal of the nazir. Abu Yusuf, among the Hanafis (and it is the position of the fatwa among them), and the Malikis hold that the endower may remove the nazir even without an offence, for he is his agent. Muhammad ibn al-Hasan said: it is permitted if there is a stipulation, not without one.
The Hanafis specify: if the endower removes the nazir, his removal stipulated at the time of the endowment is valid by consensus; if he did not stipulate it at the time of the endowment, they differ: according to Muhammad, the removal is invalid; according to Abu Yusuf, it is valid even without an offence, for the nazir is his agent; and the fatwa follows Abu Yusuf (al-Bahr al-Ra'iq 5/245; al-Ashbah wa-l-Naza'ir p. 195; Ibn Abidin 4/427; al-Is'af p. 53).
Among the Malikis, as noted, it is not valid for the endower to stipulate supervision for himself; but his stipulation regarding the nazir is followed: if he stipulated supervision for another, he may remove him even without an offence. Ibn 'Arafa said: the endower is entitled to remove him even without an offence; and if the endower appointed capable persons, he may remove and replace them (al-Mukhtasar al-fiqhi 13/78; al-Dasuqi's gloss on the Sharh al-Kabir 5/475; Mawahib al-Jalil 7/501; al-Taj wa-l-Iklil 4/579).
The Shafi'is and the Hanbalis distinguish, within the madhhab among them, between two situations.
The Shafi'is say: if the endower stipulated the supervision of a person at the time of the endowment, he may not remove him, even for an interest, for what he stipulated is not changed, just as no one else may change it; he has no supervision after stipulating it for another; and he may not remove the one for whom he stipulated teaching or to whom he delegated at the time of the endowment, even for an interest, just as when the endowment benefits his poor children he may not replace them with the rich; contrary to the one to whom this right was granted after the completion of the endowment: he may then remove (Rawdat al-Talibin 4/166; Asna al-Matalib 2/472; Kanz al-Raghibin 3/268; al-Najm al-Wahhaj 5/525-526; Mughni al-Muhtaj 3/483-484; Tuhfat al-Muhtaj 7/549; Nihayat al-Muhtaj 5/460-461; al-Dibaj 2/534).
The Hanbalis first specify: if the endower stipulated supervision for another (a beneficiary or an outsider) and then removed him, his removal is invalid, like excluding some of the beneficiaries; unless the endower stipulated for himself the removal of the nazir: then he owns it through that stipulation. And if the endower stipulated supervision for himself and then gave, assigned or delegated it to Zayd, the endower may remove the one designated, delegated or assigned, for he is his substitute, like an agent (al-Insaf 7/60-61; Sharh Muntaha al-Iradat 4/359-360; Kashshaf al-Qina' 4/329; Matalib Uli al-Nuha 4/329).
The nazir of the endowment is either the one the endower appointed, or the one the judge appoints in the absence of an appointment by the endower.
First case: if the endower appointed a nazir over his endowment, the judge may not remove him except for an offence, according to the majority of jurists (Hanafis, Malikis, Shafi'is); and if he removes him, he does not become removed, nor does the second become mutawalli (al-Bahr al-Ra'iq 5/245; al-Ashbah wa-l-Naza'ir p. 195; Ibn Abidin 4/382; al-Mukhtasar al-fiqhi 13/78; al-Dasuqi's gloss 5/475; Mawahib al-Jalil 7/501; al-Taj wa-l-Iklil 4/579; Mughni al-Muhtaj 3/481; al-Dibaj 2/534).
The Hanbalis add: if the endower appointed him or stipulated him while he was wicked, or upright and then became wicked, a trustworthy man is added to him to safeguard the endowment, and his hand is not removed, for combining the two rights is possible. Ibn Qudama (may Allah have mercy on him) adds: it is possible that his appointment is invalid and that he is removed if he becomes wicked during his term of authority; for it is authority over another's right, which wickedness nullifies, as if the ruler had appointed him; or if the endowment cannot be safeguarded while his authority over another's right remains: as soon as safeguarding from him becomes impossible, his authority is removed, for safeguarding the endowment takes precedence over keeping the wicked person's authority over it (al-Mughni 5/377-378; Sharh al-Kabir 6/214; al-Insaf 7/67; Kashshaf al-Qina' 4/327; Sharh Muntaha al-Iradat 4/359; Manar al-Sabil 2/334).
Second case: the judge's appointee. The jurists differ when it is the judge who entrusted the supervision: may he remove him? The Hanafis in one view, the Malikis and the Shafi'is hold that the judge may not remove the nazir without an offence or a cause (manifest treachery of the first or another reason) (Ibn Abidin 4/382; al-Dasuqi's gloss 5/475; Mawahib al-Jalil 7/501; Tuhfat al-Muhtaj 7/550; Nihayat al-Muhtaj 5/460-461).
The Hanafis in the second view, and the Hanbalis, hold that removing the nazir is permitted even without treachery if he is the judge's appointee; and the second judge may not reinstate him, even if the first removed him without cause, his act being presumed sound, unless his competence is established (al-Bahr al-Ra'iq 5/245; al-Ashbah wa-l-Naza'ir p. 195; Ibn Abidin 4/382; Tanqih al-Fatawa al-Hamidiyya 3/98-99).
The Hanbalis specify: the judge, for an endowment upon unspecified persons without designation by the endower, appoints a nazir on his behalf; the appointee is his deputy, with the power to remove him whenever he wills, because of the origination of his authority: his appointee is thus a deputy, as in absolute ownership (al-Furu' 4/448; al-Insaf 7/61; Kashshaf al-Qina' 4/329; Sharh Muntaha al-Iradat 4/360; Matalib Uli al-Nuha 3/326, 330).
The jurists differ when the nazir removes himself from the supervision of the endowment: is he entitled to do so or not?
The Hanafis, al-Subki among the Shafi'is, and one Hanbali view hold that the removal the nazir makes of himself does not take effect, unless the judge or the endower forces him out; but if he abstains from supervision, the ruler installs someone in his place (al-Ashbah wa-l-Naza'ir p. 155; Ibn Abidin 4/428; al-Suyuti's al-Ashbah wa-l-Naza'ir p. 277; al-Furu' 4/449; al-Insaf 7/61).
The Malikis, the Shafi'is (against al-Subki), and the apparent view of the Hanbalis hold that the nazir may remove himself from the supervision of the endowment, and he is thereby removed.
The Shafi'is specify: if the specific nazir removes himself at the time of the creation of the endowment, the endower may not appoint another, for he has no supervision after giving supervision at the time of the endowment to another; it is the ruler who then appoints a nazir. And if, at the time of the endowment, he gave supervision to Zayd before the endowment passes from Omar (the endower) to the poor, and Zayd removes himself before that transfer, his removal does not take effect; and the endower cannot remove Zayd either then or afterwards, as noted (Fatawa Ibn al-Salah 1/383; Rawdat al-Talibin 4/167; Asna al-Matalib 2/472; al-Suyuti's al-Ashbah wa-l-Naza'ir p. 277).
The Malikis: the nazir may remove himself even if appointed by the endower; the endower then appoints another of those he wills, otherwise the ruler (al-Dasuqi's gloss on the Sharh al-Kabir 5/475; al-Sawi's gloss 9/166).
Shaykh al-islam Ibn Taymiyya (may Allah have mercy on him) said: when supervision was stipulated for a man and then for another after him: if the first dies, removes himself or becomes wicked, it is as if he had died (al-Fatawa al-Kubra 4/507; see al-Furu' 4/449; al-Insaf 7/61).