Islamic Fiqh > Endowments (waqf) and property > Conditions for the validity of a waqf > The First Pillar: The Formula of the Waqf (al-Siyaghah)
Contents
Updated on 25 September 2026 at 6:57 PM
This part belongs to the section: All parts.
According to the jurists, the waqf rests upon pillars (arkan), the first of which is the declaration formula (al-siyaghah). This part examines in depth the first pillar (the declaration of offer, its explicit and allusive terms, and what may take its place), then the second pillar of consent (acceptance and the beneficiary's refusal), the binding character of the waqf, and the question of its ownership, before turning to the conditions of the formula and the capacity of the endower. The positions of the four schools are reported with their proofs, their internal divergences and their classical references.
The jurists agreed that the offer (al-ijab) is a pillar of the waqf and that the waqf is not concluded without it. They differed, however, over acceptance (al-qabul): whether it must be required or not, a question detailed further on. By the formula of the offer is meant whatever attests the will of the endower (al-waqif), whether a spoken word, or what stands in its place: an intelligible gesture of a mute person, writing, or an act. The spoken word divides into explicit expression (sarih) and allusive expression (kinayah), and the jurists debated which terms belong to each.
The majority (al-jumhur) holds that the explicit expressions are three: "waqawtu" (I have made a waqf), "habbastu" (I have consecrated by habous) and "sabbaltu" (I have released in sabil). The details are as follows.
The Hanafis say: the terms of the waqf are six: "waqawtu, habbastu, sabbaltu, tasaddaqtu (I have given alms), abbabtu (I have made perpetual) and harramtu (I have made inviolable)". The first three are explicit in themselves, the rest are allusive and valid only with intention (Al-Jawharah an-Nadirah, 4/102). And the Hanafi at-Tabarbulusi (may Allah have mercy on him) says: "its pillar" is the word of the waqf or what carries its meaning, such as saying "alms made inviolable," "alms consecrated by habous," "alms made perpetual," "alms that is neither sold, given away nor bequeathed," or "alms placed in waqf" (Al-Ishaf, p. 10).
The Malikis say: the word of waqf and of habous are both explicit as to perpetuity. If one says "I have made a waqf of this house," "this house is a waqf" or "I have consecrated this house by habous," this much suffices to consecrate its inviolability definitively, so that ownership never returns to it. If one adds "a waqf or habous that is neither sold, given away nor bequeathed," that is emphasis, but limiting oneself to the word waqf or habous suffices. This is because the meaning of this term in custom is the way (the road), the perpetual consecration of the property and the permanent attribution of its benefit: the ruling necessarily follows from it. It is the same whether one restricts it by an inexhaustible purpose, by a determined person, or by a known limited number: "I have made a waqf or consecrated my house by habous for the poor, or for Zayd, or for the children of so-and-so," except if one sets a term to the waqf or limits it to the lifetime of a person.
Ibn Rushd (may Allah have mercy on him) said: habous and waqf have one and the same meaning and never part in any respect. And al-Qadi Abdal-Wahhab (may Allah have mercy on him) said: the terms by which the waqf is concluded are to say "I have made a waqf, I have consecrated by habous, I have given alms" and all that conveys this meaning. As for the word waqf, it is explicit as to perpetuity: if one says "I have made a waqf of this house" or "this house is a waqf," this suffices to consecrate its inviolability and ownership never returns; adding "a waqf that is neither sold nor given away nor bequeathed" is mere emphasis. As for the word habous, it means to say "this house is a habous for such purpose," or even without that; but if he says only "a habous" or "I have consecrated it by habous," it becomes a habous for the purpose he designated, and if he designates no purpose, the property is directed to the ways of righteousness and good. As for the ruling on perpetuity, it is examined: if he has not joined to it a formula of perpetuity such as "a waqf that is neither sold nor given away," and the habous is for a specific person or for people identified by name, without mention of descendants or lineage (as in "a habous for so-and-so," for a particular man, or for named people without mention of their posterity), his view differs: does it become perpetual or not? Two transmissions exist.
But if the word habous is joined in both respects by some formula of perpetuity, such as "a habous, or waqf, inviolable, perpetual, neither sold nor given away," or if its unrestricted word is used for indefinite or described people, such as the poor, the scholars, the tribe of Tamim, so-and-so and his descendants, or my children and their posterity, without designation or place of return, the madhhab does not differ: these two forms produce perpetuity and inviolability (Al-Ma'unah, 2/487-488 ; Al-Mukhtasar al-Fiqhi, 13/40-41 ; Adh-Dhakhirah, 6/316 ; Ash-Sharh al-Kabir with the hashiyah of ad-Dasuqi, 5/469 ; Mawahib al-Jalil, 7/487 ; At-Taj wal-Iklil, 4/571 ; Sharh Mukhtasar Khalil, 7/88-89 ; Tahbir al-Mukhtasar, 4/650).
The Shafi'is in the madhhab say: the waqf of a speaker who cannot write is not valid except by a word that conveys the intended meaning, such as that of manumission, for it is a transfer of the corpus and the benefit, or of the benefit alone; it thus resembles all other transfers of ownership and differs from sale, which was already concluded by physical delivery: sale existed in the Age of Ignorance and the Law came permitting it, so that usage applied to it; as for the waqf, it was not known, and in it one follows that by which the Law came. Exception: if he builds a mosque in wasteland with that intention, it becomes a mosque, and the act joined to the intention takes the place of the word, his ownership leaving the property once it is settled in its place. It is thereby known that if he builds a mosque and permits prayer in it, it does not become a mosque; likewise if he permits burial in his property, it does not become a graveyard. And if we see a mosque in which people pray, its ruling continues and is not changed, for it is in the hands of those for whom it was designated. All this concerns the speaker; as for the mute person, his waqf is valid by his intelligible gesture like his other donations, and that of the writer by his writing joined to intention.
The word of the endower divides into explicit and allusive. The explicit is what derives from the word of waqf, such as "I have made a waqf of such property for such purpose," or "my land or my properties are mawqufah (a waqf) for such purpose," for in linguistic usage it serves nothing else. Consecration by habous (at-tahbis) and release in sabil (at-tasbil) and what derives from them, as in "my properties are a habous for such purpose," are explicit according to the sound view, owing to the frequency of their use and their fame in Law and custom: this appears in the hadith of Umar (may Allah be pleased with him): "Consecrate the corpus by habous and release the fruit in sabil." And they serve nothing else in linguistic usage. Al-Mutawalli said: no waqf is reported from the Companions except by these two words. A second view holds the words of sabil and habous to be allusions, for they never gained the fame of waqf. A third: habous is explicit and sabil allusive, for the Prophet (peace and blessings be upon him) distinguished between them in the hadith: "Consecrate the corpus by habous and release the fruit in sabil," the fruit not being placed in waqf by consensus. The point of dispute arises only if one confines oneself to one word: if one emphasizes it by the verbal noun, saying "I have consecrated it by habous, a perpetual, inviolable consecration," its explicitness is undisputed. The views in all this are four: all explicit, all allusive, waqf alone explicit, sibil alone allusive.
Ad-Damiri (may Allah have mercy on him) reports from the shaykh: whoever drafts a waqf deed and has it witnessed should annex to the terms of the endower the acknowledgment of intention, so as to escape the disagreement and settle the validity of the waqf. The terms mentioned in this chapter are: waqf, habous (at-tahbis), sabil (at-tasbil), inviolability (at-tahrim), perpetuity (at-ta'bid) and alms (as-sadaqah): six terms whose root is alms; but since it is shared between alms and other meanings, it has fallen behind the rank of the explicit, and the highest in rank is the word waqf, then habous, then sabil, then inviolability and perpetuity, then alms (An-Najm al-Wahaj, 5/477 ; Al-Muhadhdhab, 1/442 ; Al-Bayan, 8/73 ; Al-Wasit, 5/183-184 ; Rawdat at-Talibin, 4/141 ; Mughni al-Muhtaj, 3/461-462 ; Nihayat al-Muhtaj, 5/425 ; Kanz ar-Raghibin, 3/247 ; Ad-Dibaj, 2/520).
As-Suyuti (may Allah have mercy on him) said: the sound waqf on which the majority settled is that "waqawtu, habbastu, sabbaltu" are explicit; it has been said they are allusive; it has been said that "waqawtu" alone is explicit; and it has been said: it and "habbastu" (Al-Ashbah wan-Nazair, p. 299).
The Hanbalis say: the waqf is obtained by a single word, its explicit forms being "waqawtu, habbastu, sabbaltu": whoever utters one of these three words, his waqf is valid, for they admit of no other meaning by the usage of the people among whom he is, and by the usage of the Law; the Prophet (peace and blessings be upon him) said: "If you wish, consecrate its corpus by habous and release its fruit in sabil." These words in the waqf are therefore like the word of repudiation in divorce. Attributing the habous to the corpus and the sabil to the fruit implies no difference in meaning: the fruit too is retained according to the purpose for which its disposal was stipulated. If an owner says "I have consecrated by habous the fruit of my palms for the poor," that is a binding waqf by the agreement of whoever holds habous to be explicit in the waqf. Al-Mardawi (may Allah have mercy on him) said: as for "sabbaltu," it is explicit according to the sound view of the madhhab, followed by the companions.
Al-Harithi said: the sound view is that it is not explicit, because of the saying of the Prophet (peace and blessings be upon him): "Consecrate the corpus by habous and release the fruit in sabil," wherein he distinguished the meaning of habous from that of sabil, so that neither can be explicit for the other. It is known that the waqf is the retention of the corpus against the means of acquisition, while sabil is the release of ownership: how then could it be explicit for the waqf? (Al-Insaf, 7/5 ; see Al-Mughni, 5/350-351 ; Al-Kafi, 2/454 ; Al-Muharrar, 1/370 ; Al-Mubdi', 5/314 ; Sharh Muntaha al-Iradat, 4/331 ; Kashshaf al-Qina', 4/294-295 ; Ar-Rawd al-Murbi', 2/169 ; Matalib Uli an-Nuha, 4/273 ; Manar as-Sabil, 2/320).
The jurists differed over certain terms: are they explicit or allusive? The majority holds them, however, to be among the allusions, like "tasaddaqtu, abbabtu, harramtu," which require a circumstance or an intention for the waqf to be valid. The details are as follows.
The Hanafis say: the terms of the waqf are six: "waqawtu, habbastu, sabbaltu, tasaddaqtu, abbabtu, harramtu": the first three are explicit in it and the rest allusive, valid only with intention (Al-Jawharah an-Nadirah, 4/102). And at-Tabarbulusi (may Allah have mercy on him) recalls: "its pillar" is the word of the waqf or what carries its meaning, such as "alms made inviolable, or consecrated by habous, or made perpetual, or that is neither sold, given away nor bequeathed, or alms placed in waqf" (Al-Ishaf, p. 10).
The Malikis say: the word of alms does not produce perpetuity unless joined to a restriction, such as "that is neither sold nor given away," or "it is alms for him and his posterity," or if it is for a determined person or an unending purpose, as in "I have given alms for the poor and needy, or for the mosques, or for the seekers of knowledge," and likewise when such a purpose is itself accompanied by a restriction like "that is neither sold nor given away." Otherwise it is ownership of the beneficiary, who sells it and distributes the price by the diligence of the trustee. Likewise the waqf is valid and becomes perpetual if made for a countable group: "for so-and-so and his posterity, or for his sons, or for his lineage, or for his offspring," without needing an added restriction, for the mention of posterity is a restriction for the sake of the right of those who come after. As for an uncountable indefinite group, such as the poor and needy, the restriction is obligatory as has passed. The countable is he whose individuals can be enumerated, and other than him is he whose individuals cannot be enumerated.
Al-Qadi Abdal-Wahhab (may Allah have mercy on him) said: as for the word of alms, "this house is alms for so-and-so," it follows two paths: the first, that the giver intends transferring the corpus; the other, that he intends habous. If the giver intends transferring the corpus, that is permitted and the property becomes the ownership of the recipient like a gift; if he intends by it habous, then there are two cases: if the alms is for a specific man or specific identified people without mention of posterity, two transmissions exist, as with the word habous: the first, it does not become perpetual: the property is first delivered to the one named for it, and ownership returns when that purpose lapses; the second, it becomes perpetual, directed to the purpose set for it, then to the poor and needy when the purpose lapses. But if the alms is made for unknown or uncounted people, like the tribe of Tamim or the tribe of Taghlib, or for those described by a quality, like the scholars and the poor, or if he stipulated their posterity in both cases, it becomes perpetual and is not ownership. Ibn Abdal-Hakam even reported from some of our companions that in this case, if one says "alms for so-and-so and his posterity as long as they live" without saying "as a habous," it would be ownership of the last descendant, man or woman, who would dispose of it by sale or otherwise; but most of our companions hold it a habous, and this saying is of no account: the sound view is that it is a habous. As for the case where the word of alms is used unrestricted, without anything implying habous, neither a formula of perpetuity nor a quality of the recipients, the meaning of habous does not arise, for the apparent meaning of alms requires transferring the corpus: it turns to habous only through an accompanying circumstance. If one combines the word of habous and alms, saying "this house is a habous, alms," or "a habous," and adds "that is neither sold nor given away," "inviolable, or perpetual, or a waqf," the madhhab does not differ: it becomes perpetual thereby. But if he says only "a habous of alms" or "alms as habous" without mentioning an indefinite group or posterity, our companions differed over the exegesis of Malik's saying: some say it follows two transmissions, like "a habous" alone; some say one transmission: it returns as habous and never reverts to ownership (Al-Ma'unah, 2/488-489 ; and see the same references as above).
The Shafi'is say: if one says only "tasaddaqtu," that is neither explicit for the waqf nor an allusion to it, so the waqf does not result even with intention, for the word vacillates between obligatory alms, voluntary alms and the waqf: being explicit for other than the waqf, it cannot be an allusion to it. Except if he attaches it to a general purpose, like "I have given alms of it for the poor or for the fighters," intending the waqf: it then becomes an allusion. If he attaches it to a specific purpose, "I have given alms of it to you or to them," it is not a waqf according to the sound view, for the word gives no indication of it. To the apparent: if he intends the waqf by it, it becomes a waqf between him and Allah (exalted is He) without legal effect, unless he says "I intended the waqf by it": it then becomes a waqf between him and Allah and in the ruling as well. If he joins to the word of alms a term of the waqf ("alms that is mawqufah, consecrated by habous, released in sabil, inviolable or perpetual"), or a rule of the waqf ("alms that is neither sold, given away nor bequeathed"), that becomes a waqf according to the sound view of the madhhab, for this conjunction with the word of alms admits of nothing but the waqf.
The Hanbalis say: the word "tasaddaqtu" is an allusion to the waqf and is not explicit, for alms is an ambiguous word used for zakat, apparent in voluntary alms, and the waqf is not valid by it alone in what it is directed to, like the allusions of divorce, for no linguistic or legal usage is established for it apart from the intention of the waqf. Whoever uses an allusion and acknowledges having intended the waqf by it is bound by ruling, for with the intention it became its apparent meaning; and if he says "I did not intend the waqf by it," his word is accepted, for none but he perceives his intention. Or he joins to the word of allusion one of the five terms, the three explicit and the two allusive: "I have given alms of an alms that is mawqufah, or consecrated by habous, or released in sabil, or inviolable, or perpetual." Or he joins the allusion to a rule of the waqf: "alms that is neither sold, nor given away, nor bequeathed, or I have given alms of my house for such tribe, or for such category," for all this is employed only for the waqf: the ambiguity vanishes. Or he describes the allusion by the attributes of the waqf. Or he joins the allusion to a rule of the waqf, saying: "I have given alms of my land for so-and-so, the management being mine the days of my life," or "the management for so-and-so, then after him for so-and-so," and likewise: "I have given alms of it for so-and-so then after him for his son, or for so-and-so then for so-and-so, or for such tribe, or for such category as the poor or the fighters," for these words are employed for nothing but the waqf: one is then as if one had used the explicit word. If the owner of a house says "I have given alms of it for so-and-so," and the recipient later says "he intended the waqf," and the latter does not confirm him, saying "it is only alms and I dispose of its corpus as I wish," the recipient's word is not accepted in the ruling, for it contradicts the apparent meaning (Al-Mughni, 5/350-351 ; Al-Kafi, 2/454 ; Al-Mubdi', 5/314 ; Sharh Muntaha al-Iradat, 4/332-333 ; Kashshaf al-Qina', 4/295 ; Ar-Rawd al-Murbi', 2/169 ; Matalib Uli an-Nuha, 4/274 ; Manar as-Sabil, 2/320).
Ash-Shafi'i (may Allah have mercy on him) said: if one gives alms of one's house for a people, or for a known living man on the day of the gift, saying "alms made inviolable," or "mawqufah," or "alms released in sabil," it has left his ownership and never returns as inheritance. Al-Mawardi (may Allah have mercy on him) said: this is as he said; the terms of the waqf are six, among them "tasaddaqtu, waqawtu, habbastu," for alms admits the waqf, voluntary alms with transfer, and obligatory alms; if one joins to it an indicator pointing to the waqf, it turns to it and the ambiguity ceases: the indicator is to say "I have given alms of an alms that is mawqufah, or consecrated by habous, or released in sabil, or inviolable, or perpetual," or "alms that is neither sold, given away nor bequeathed." Likewise, if he intends the waqf, the alms turns to it between him and Allah without legal effect, and it does not become a waqf in the ruling until he acknowledges it: like "you are divorced" with the intention of divorce, which takes place between him and Allah, and becomes effective in the ruling when she acknowledges the intention. But if he says "waqawtu," that is explicit, for the Law employed it when the Prophet (peace and blessings be upon him) said to Umar: "Consecrate the corpus by habous and release the fruit in sabil," and the usage of the Law stands as the usage of habit (Al-Hawi al-Kabir, 7/581).
The Hanbalis say: if one says "harramtu" such property, the waqf is not valid by it alone, apart from what it is directed to, except with the intention of the waqf; whoever uses an allusion and acknowledges having intended the waqf by it is bound by ruling, and if he denies it, his word is accepted. Or he joins to the word of allusion one of the five terms: "I have given alms of an alms made inviolable," or to a rule of the waqf: "an alms that is neither sold, given away, nor bequeathed," or "I have given alms of my house for such tribe or such category," for all this is employed only for the waqf. Or he describes the allusion by the attributes of the waqf, or joins it to a rule of the waqf as: "I have given alms of my land for so-and-so, the management being mine during my lifetime," or the management for so-and-so then for another, and all the forms cited.
The Hanafis repeat their six terms, the first three explicit and the rest allusive requiring intention (Al-Jawharah an-Nadirah, 4/102). The Shafi'is, against the most correct view, hold "I have made it inviolable for the needy" to be explicit, for it achieves the purpose like habous and sabil, and because the word of inviolability, in inanimate things, serves nothing but the waqf (Al-Hawi al-Kabir, 7/518 ; Al-Muhadhdhab, 1/442 ; Al-Bayan, 8/73 ; Al-Wasit, 5/184 ; Rawdat at-Talibin, 4/141 ; Mughni al-Muhtaj, 3/461 ; Nihayat al-Muhtaj, 5/425 ; Kanz ar-Raghibin, 3/248 ; An-Najm al-Wahaj, 5/478-479 ; Ad-Dibaj, 2/520). Ibn as-Sabbagh (may Allah have mercy on him) adds: ash-Shafi'i made the words of inviolability and perpetuity, together with the word of alms, explicit for the waqf; were they allusive, alms would not become explicit through them, for an allusion added to an allusion never yields the explicit (Al-Bayan, 8/73 ; see Al-Hawi al-Kabir, 7/518).
Ibn Qudamah (may Allah have mercy on him) said: as for the allusion: "tasaddaqtu, harramtu, abbabtu," they are not explicit, for the words of alms and inviolability are ambiguous: alms is used for zakat and gifts, inviolability for zihar and oaths, upon oneself or another, and perpetuity admits the perpetuity of inviolability as that of the waqf; no usage of employment is established for these words, and the waqf does not result from them alone, like the allusions of divorce. If one of three things is joined to them, the waqf results: the first, another word that purifies them from the five terms: "alms that is mawqufah, or consecrated by habous, or released in sabil, or inviolable, or perpetual," or "this property is inviolable, mawquf, or a habous, or in sabil, or perpetual." The second, describing it by the attributes of the waqf: "alms that is neither sold, given away nor bequeathed," for this circumstance removes the ambiguity. The third, intending the waqf: it then follows according to what he intended, the intention making it a waqf inwardly only, for what lies in consciences is not observable; if he acknowledges what he intended, he is bound in the ruling by its appearing, and if he says "I did not intend the waqf," his word is retained, for he best knows his intention (Al-Mughni, 5/351 ; see Al-Kafi, 2/454 ; Al-Mubdi', 5/314 ; Sharh Muntaha al-Iradat, 4/332-333 ; Kashshaf al-Qina', 4/295 ; Ar-Rawd al-Murbi', 2/169 ; Matalib Uli an-Nuha, 4/274 ; Manar as-Sabil, 2/320).
The Hanafis mentioned twenty-six terms for the waqf, cited by Ibn al-Humam and Ibn Nujaym. Ibn Nujaym (may Allah have mercy on him) said: as for its pillar, it is the specific words designating it, and they are twenty-six:
Qadikhan also reported from the book of bequests a man who said "a third of my property is a waqf" without more. Abu Nasr said: if his property was in cash, this word is void, like "these dirhams are a waqf"; if it consisted of estates, they become a waqf for the poor (Al-Bahr ar-Ra'iq, 5/205-206 ; Sharh Fath al-Qadir, 6/202-203).
The jurists differed over the waqf: is it obtained by an act accompanied by indicators designating it, such as building a mosque and permitting people to pray in it, a graveyard and permitting burial, a water fountain and permitting drawing from it, or not? The Hanafis, on a long detail reported below, the Malikis and the Hanbalis in the madhhab hold: it thereby becomes a waqf with no return possible, the waqf being obtained by the act joined to indicators as by speech, for custom runs thus and it indicates the waqf: it may therefore establish it as does speech. The like of it is whoever sets food before his guest: that is permission to eat it; whoever fills a watering trough with water on the road: that is a sabil; whoever scatters grain among people: that is permission to gather it and taking it is permitted; likewise entering the bath and using its water without permission is lawful by the indication of the situation.
The Hanafis say: whoever builds a mosque does not cease to own it until he separates it from his property by the means he chooses and permits prayer in it. As for the separation, it is because it does not become purely Allah's except by it: so long as the right of the servant remains attached to it, it is not freed for Allah. As for prayer in it, it is because delivery is required according to Abu Hanifah and Muhammad, and delivery means permitting the people to pray in it: that is like taking possession, and when they pray in it, it is as if they took possession. As soon as a single person prays in it, his ownership leaves it according to Abu Hanifah and Muhammad, for the act of all the people being impossible to gather, the least is required. According to them too, congregational prayer aloud with adhan and iqamah is required: even a private prayer, without adhan or iqamah, does not make the place a mosque; but if he establishes for it an imam and a muezzin, even if the man is alone, and prays in it with adhan and iqamah, it becomes a mosque by consensus, for prayer performed in this manner stands as congregational prayer: do you not see that if the muezzin prays in the mosque in this fashion, whoever comes after him may no longer pray there in congregation? This transmission is the sound view, for mosques are built for establishing the prayers in congregation therein: the place does not become a mosque before this aim is achieved. If he hands the mosque over to a trustee whom he appoints to look after its interests, the sound view is that this is permitted, for a mosque may have a servant who sweeps and closes the door and the like.
Abu Yusuf (may Allah have mercy on him) said: his ownership leaves it by his word "I have made it a mosque," for delivery is, in his view, not a condition: it is the abolition of the servant's ownership, the property becoming purely Allah's through the fall of the servant's right, like manumission. Once it has become a mosque according to all, his ownership leaves it, its sale is forbidden, it is not inherited and no return in it is possible, for it has become Allah's property by His word:
and there is no return in what has become the property of Allah, like obligatory alms."And that the mosques are for Allah"
Surah Al-Jinn, 18
Whoever makes the mosque the cellar of his house or a chamber above it, opening its door to the street and separating it, or makes a mosque in the middle of his house permitting people to enter: he may sell it and it is inherited, for it has not become purely Allah's, the servant's right remaining in it. The mosque is only a mosque purified for Allah, and so long as the servant's right remains below it, above it or around it, purification is not complete. If the lower level is the mosque, it is because the owner of the upper floor has a right over the lower level, such that the latter may introduce nothing there without the approval of the owner of the upper floor. If the upper floor is the mosque, it is because the ground of the upper floor is the ownership of the holder of the lower level, who may undertake nothing there without his approval, such as building. Unlike the mosque of Bayt al-Maqdis (Jerusalem): its cellar belongs to no one; it belongs to the interests of the mosque, to the point that if another like it appeared, we would say it has become a mosque. If one makes the mosque the center of one's house, it is because one's property surrounds it: he retains the right to prevent entry, and the mosque requires that no right of prevention remain in it; Allah (exalted is He) says:
and because he did not separate it, keeping a passage for himself: it has not therefore become purely Allah's, until he moves his door to the main street: it then becomes a mosque."And who is more unjust than he who prevents that the name of Allah be mentioned in the mosques of Allah?"
Surah Al-Baqarah, 114
Al-Hasan reported from Abu Hanifah that he permitted the lower level to be a mosque and the upper a property, for the lower is the foundation and becomes perpetual, and the reverse is not permitted. From Muhammad, the reverse: the mosque is magnified, and there is no magnification if above it is a storey or a dwelling, unlike the other case. From Abu Yusuf, both are permitted since he saw the narrowness of places upon arriving in Baghdad; a similar transmission from Muhammad upon his arrival at Rayy. From Abu Yusuf and Muhammad: if one makes the mosque the center of one's house, it becomes a mosque even without moving its door to the street, for having approved its being a mosque (and there is no mosque without a road), the road enters it by necessity, as hiring enters without mention, given that he cannot benefit from it without access, the benefit being the aim. If he makes his land a mosque, no return nor sale is possible in it, and it is not inherited, the property having been freed for Allah. Unlike the waqf according to Abu Hanifah, where return is possible so long as the judge has not ruled: the difference has been explained. If what surrounds the mosque falls into ruin and one dispenses with it, it remains a mosque according to Abu Yusuf, for it is an abolition of ownership that does not return, like manumission: do you not see that the people of the Sacred Mosque dispensed with it in the time of the fitnah and it did not return to the heirs of its builder? According to Muhammad, it returns to his ownership or to his heirs after his death, for he designated it for a purpose that has ended, like the shroud that returns to its owner once used. Likewise the mat and the grass of the mosque: once dispensed with, they return to the owner according to Muhammad and pass to another mosque according to Abu Yusuf: on this disagreement too are the ribat and the well when their benefit ceases.
It is said: whoever builds a water fountain, a khan, a ribat or a graveyard does not cease to own it except by the ruling of a governor according to Abu Hanifah; his ownership leaves by the word according to Abu Yusuf; and according to Muhammad, when people draw from the fountain, lodge in the khan and the ribat and are buried in the graveyard, ownership leaves: each of the three built upon his principle, the requirement of the governor's ruling, delivery, or the word alone. If the endower delivers the property to the trustee, delivery is valid according to those who make it a condition. If he makes his land a road, the same disagreement runs. As for benefit, there is no difference between rich and poor in such things: all may lodge in the khan and the ribat, drink from the fountain and be buried in the graveyard, unlike the yield (the ghallah), which is lawful only to the poor, for the rich dispenses with alms through his property, while he does not dispense with these services as a habit: he cannot carry these things with him habitually, and so he needs them like the poor; the yield, however, is not necessary to him, his property dispensing him. Such is the ruling of the waqf: even if he makes a waqf of land to direct its yield to the pilgrim, the fighter or the seeker of knowledge, he may not direct it to those of them who are rich. And on this principle, if he makes his house a lodging for wayfarers, in any city, rich and poor are equal in it. The report of Uthman (may Allah be pleased with him) says:
The Prophet (peace and blessings be upon him) entered Medina and there was no sweet water in it except the well of Rumah. He said: "Who will buy the well of Rumah and place his bucket in it together with the buckets of the Muslims, for him better than it in Paradise?" So I bought it with my own money.Reported by an-Nasa'i (3608), at-Tirmidhi (3703), Ibn Hibban in his Sahih (2492), Ibn Abi Asim in As-Sunnah (1005) and ad-Daraqutni (4/197); hasan hadithIf the endower may drink from it, what then of the other rich men? (Al-Hidayah, 3/19-20 ; Al-'Inayah, 8/356, 359 ; Sharh Fath al-Qadir, 6/233-234 ; Al-Ikhtiyar, 3/53-54 ; Tibyin al-Haqa'iq, 3/329-331 ; Al-Bahr ar-Ra'iq, 5/268-269 ; Al-Jawharah an-Nadirah, 4/110, 115 ; Al-Lubab, 1/626-628 ; Al-Hindiyyah, 2/454-455 ; Ahkam al-Waqf of Hilal ar-Ray, p. 41-43).
The Malikis say: the waqf is valid by "I have consecrated by habous, I have made a waqf" or what takes their place, such as setting apart a mosque for the people, even without privileging one group over another, or obligatory over voluntary. If he builds a mosque and permits people into it, that is as if he declared it a waqf, without his needing to designate a time or a people or restrict prayer to the obligatory or the supererogatory: its being a waqf is ruled for him (Hashiyat ad-Dasuqi on Ash-Sharh al-Kabir, 5/469 ; Al-Mukhtasar al-Fiqhi of Ibn Arafah, 13/40).
The Hanbalis say: the waqf is valid by speech and by an act significant of the waqf by custom, like speech, for both indicate it: making his land a graveyard and permitting burial publicly, the private permission possibly bearing on other than the waqf; building a structure in the form of a mosque and permitting the people prayer publicly, even by opening the doors, by the adhan, by writing a board of permission or of waqf, or praying in what he built in the form of a mosque by himself or through one he appoints, with adhan and iqamah, the adhan and iqamah therein standing as public permission of prayer in it. Ash-Shaykh Taqi ad-Din said: even if he intended the contrary (an intention contradicting what the act indicates), it has no effect. Likewise if he annexed a room to the mosque and made the adhan in it, or built a house for human need (that is, urination, defecation and purification) opening its door to the people, or filled a trough or the like with water on the road or in his mosque: the indication of the situation designates the sabil. If he makes the mosque the lower part of his house and benefits from the upper: valid; the reverse too is valid: if he makes the mosque the middle of the house while benefiting from above and below, even without devoting a set portion, the waqf is valid and a portion may be carved from it, as when one sells a room of his house or rents a room of his house without designating a portion: the sale and the lease are valid and a portion may be carved by custom. The Shafi'is, and Ahmad in a transmission reported from him, hold: it does not become a waqf except by speech. The waqf is not obtained by the act, for this is the consecration of a corpus to a path of nearness: it was therefore required not to be valid without the word, like the waqf for the poor and needy. On this principle, if he builds a mosque and permits prayer in it, or permits burial in his land, neither becomes a waqf thereby.
The Shafi'is in the madhhab add: the waqf of a speaker who cannot write is valid only by a word conveying the meaning, such as manumission; otherwise what preceded: the act joined to intention takes the place of the word, his ownership leaving the property once it is settled in its place, and if we see a mosque in which people pray, its ruling continues, for it is in the hands of those who designated it so; the mute person: valid by his intelligible gesture like his other donations; the writer: by his writing with intention (Al-Muhadhdhab, 1/442 ; Al-Bayan, 8/73 ; Al-Wasit, 5/183-184 ; Rawdat at-Talibin, 4/141 ; Mughni al-Muhtaj, 3/461-462 ; Nihayat al-Muhtaj, 5/425 ; Kanz ar-Raghibin, 3/247 ; An-Najm al-Wahaj, 5/477 ; Ad-Dibaj, 2/520).
Ibn Qudamah (may Allah have mercy on him) said: the apparent of Ahmad's madhhab is that the waqf is obtained by the act joined to indicators designating it: building a mosque and permitting people to pray in it, a graveyard and permitting burial, a fountain and permitting access; in the transmission of Abu Dawud and Abu Talib, concerning one who annexed a room to the mosque and made the adhan in it: he does not return to it; likewise if he made graveyards and permitted the people, and the fountain: no return is possible for him. This is the view of Abu Hanifah. The qadi also mentioned another transmission: it does not become a waqf except by speech, which is the madhhab of ash-Shafi'i; the qadi took it from a saying of Ahmad when al-Athram asked him about a man who surrounded a plot of land with a wall to make it a graveyard, intending it in his heart, then it seemed good to him to take it back. He said: "If he made it for Allah, he does not return to it." This does not contradict the first transmission: by his words "if he made it for Allah" he may have meant that he intended, by surrounding it, to make it Allah's: this would then be a confirmation of the first transmission and an addition to it, since he barred him from return by the mere surrounding with intention. But if he meant by "he made it for Allah" that circumstances accompanied his act indicating that will, such as his public permission of burial in it, then it is precisely the first transmission. And if he meant a waqf pronounced by the tongue, its implication is that the waqf is not obtained by the mere surrounding with intention, which does not contradict the first, for in the first his permission of burial was joined to his act, which is absent here: there is thus no contradiction. Since his meaning cannot be determined from these readings, this transmission falls away and the madhhab becomes a single transmission, and Allah knows best. They argued: this is the consecration of a corpus to a path of nearness, so it must not be valid without the word, like the waqf for the poor. Our reply: custom runs thus and it indicates the waqf: it may therefore establish it as does speech. The like of it is whoever sets food before his guest: permission to eat; whoever fills a trough with water on the road: a sabil; whoever scatters grain among the people: permission to gather it, and taking is permitted; likewise entering the bath and using its water without permission, lawful by the indication of the situation. We have already established in sale that it is valid by mere delivery without a word, and likewise the gift and the present, by the indication of the situation: so it is here. As for the waqf for the needy, no habit runs without a word; and if anything can be produced by habit or by the indication of the situation, it is like our question, and Allah knows best (Al-Mughni, 5/350-351 ; see Al-Insaf, 7/4).