The Second Consent: Acceptance (al-Qabul)

This part belongs to the section: All parts.

The Second Consent: Acceptance (al-Qabul)

The waqf has two situations: it is either for a purpose from which acceptance is inconceivable, such as mosques and bridges, or for an uncountable purpose such as the poor and needy; or the beneficiary is a determined person such as Zayd, or a countable group. In the first situation, acceptance is not required according to the Hanafis, the Malikis, the Shafi'is and the Hanbalis in the madhhab, for this is impossible as regards mosques and the like; and if the acceptance of the entitled one were required, the waqf would not be valid for mosques and the poor. An-Nazim, of the Hanbalis, reports by way of possibility that the deputy of the imam accepts it (see Hashiyat Ibn Abidin, 4/342 ; At-Tawdih, 7/281 ; Ash-Sharh al-Kabir with the hashiyah of ad-Dasuqi, 5/478-479 ; At-Taj wal-Iklil, 4/577 ; Sharh Mukhtasar Khalil, 7/92 ; Tahbir al-Mukhtasar, 4/654 ; Minhaj al-Jalil, 8/146 ; Rawdat at-Talibin, 4/142 ; Al-Mughni, 5/349-350 ; Al-Mubdi', 5/324 ; Kashshaf al-Qina', 4/306-307 ; Matalib Uli an-Nuha, 4/296 ; Al-Insaf, 7/26). In the second situation the jurists differed: is the beneficiary's acceptance required?

The majority of jurists, the Hanafis, the Malikis and the Shafi'is according to the sound view, and the Hanbalis according to one view, require acceptance, for it is a donation to a determined human being whose acceptance is therefore a condition, like the gift and the bequest; the proof is that a bequest made to a determined human being is suspended upon his acceptance, whereas one made to an indefinite purpose, such as the needy, or to a mosque, needs no acceptance.

The Hanafis say: acceptance is not required when the beneficiary is indefinite, such as the poor; but if it is a determined person and then the poor, his acceptance is required with respect to him: if he accepts, the yield belongs to him; if he refuses, it goes to the poor. Whoever has accepted cannot refuse afterwards, and whoever refused at first cannot accept afterwards (Hashiyat Ibn Abidin, 4/342 ; Al-Ishaf, p. 17).

The Malikis say: when the waqf is for an indefinite beneficiary, such as the poor, the mosques and the like, acceptance is not required, for this is impossible as regards mosques. But if it is for a determined person such as Zayd, capable of refusal and acceptance, his acceptance is required for the validity of the waqf; if he is incapable, such as the insane or the minor, his guardian accepts on his behalf; if he has no guardian, one is appointed for him to accept in his name, as with the gift. If the determined beneficiary refuses what another placed in waqf for him, during the endower's life or after his death, the waqf returns as habous to the poor and needy, its yield distributed among them by the diligence of the trustee; according to one view, it returns as ownership to the endower or his heirs (At-Tawdih, 7/281 ; Ash-Sharh al-Kabir with the hashiyah of ad-Dasuqi, 5/478-479 ; At-Taj wal-Iklil, 4/577 ; Sharh Mukhtasar Khalil, 7/92 ; Tahbir al-Mukhtasar, 4/654 ; Minhaj al-Jalil, 8/146).

The Shafi'is say: if the waqf is for a purpose such as the poor, the mosques or the ribat, acceptance is not required categorically, being impossible, and the judge is not their deputy in accepting. If one says "I have made this for the mosque," it is a transfer of ownership, not a waqf: the acceptance of the guardian and his taking possession are required, as with a gift made to a child. If the waqf is for a person such as Zayd or a determined group, two views exist: the more correct of them requires acceptance, for it is remote that a corpus or benefit should enter a person's ownership without his consent; acceptance, if the recipient is capable, is connected to the offer, otherwise the acceptance of his guardian, like the gift and the bequest. The second view does not require it, like manumission. If the determined beneficiary refuses the property placed in waqf, his right lapses, whether we required his acceptance or not, like the bequest and the agency; if he returns after refusing, it does not return to him. Taking possession is not required according to the well-known view; according to the other, the waqf is not completed except by it, like the gift (Rawdat at-Talibin, 4/142-143 ; Mughni al-Muhtaj, 3/463-464 ; Nihayat al-Muhtaj, 5/426, 428 ; Kanz ar-Raghibin with the hashiyah of Qalyubi and Umayrah, 3/249 ; An-Najm al-Wahaj, 5/480-481 ; Ad-Dibaj, 2/521-522).

The Hanbalis in this transmission require its acceptance, for it is a donation to a determined human being, its acceptance a condition like the gift and the bequest, with the same proof from the bequest. On this principle, if he refuses, the waqf lapses in his right without lapsing for those after him, and it becomes like the waqf of interrupted inception: its validity is established for the others entitled, with two views on its nullity, based on separating the transaction. Ibn Qudamah (may Allah have mercy on him) said: if we hold it valid, does it pass from the present one to the one after him, or is the property directed meanwhile to a destination of the interrupted waqf until the death of the one who refused, then it passes to the next? Two views exist (Al-Mughni, 5/350 ; Ash-Sharh al-Kabir, 6/200 ; Al-Mubdi', 5/324 ; Al-Insaf, 7/26). Al-Mardawi (may Allah have mercy on him) reports from al-Harithi, on the view of requiring acceptance: acceptance must be connected to the offer, otherwise it lapses as in sale and gift; and from this follows that the acceptance of the second and third entitled persons is not required, their entitlement being detached from the offer. Some companions reported that this is problematic by comparison with acceptance of the bequest lagging behind the offer.

Ash-Shaykh Taqi ad-Din (may Allah have mercy on him) said: when acceptance of the determined person is required, the sitting must not be required; the waqf is assimilated to the bequest and the agency and is valid immediate or deferred, by word and act: taking its yield is acceptance. He pronounced, in rule fifty-five, that the management of the determined beneficiary takes the place of acceptance by the word (Al-Insaf, 7/28). The Hanbalis in the madhhab and the Shafi'is according to one view hold: if the waqf is for an indefinite purpose, such as the needy, the fighters and the scholars, or for that from which acceptance is inconceivable, such as mosques and bridges, the waqf does not need acceptance from that for which it is made, nor acceptance from another such as the deputies of the imam, for were it required, its validity over them would be prevented. Likewise for a determined human being: his acceptance is not required according to the sound view of the madhhab, for it is the removal of an ownership that prevents sale, and acceptance was not taken into account in it, like manumission; and it is one of the two kinds of waqf, whose acceptance was not required as for the other kind. Accordingly it does not lapse by refusal, like manumission: its refusal and acceptance and the absence of both are equal in ruling. In Al-Insaf, Abu l-Ma'ali said in An-Nihayah that it reverts upon his refusal like the agent who refuses the agency even though acceptance of it is not required; al-Harithi said: this is the most correct (Al-Insaf, 7/28 ; see Al-Mughni, 5/349-350 ; Ash-Sharh al-Kabir, 6/200 ; Al-Mubdi', 5/324 ; Kashshaf al-Qina', 4/306-307 ; Matalib Uli an-Nuha, 4/296 ; Rawdat at-Talibin, 4/142-143 ; Mughni al-Muhtaj, 3/463-464 ; Nihayat al-Muhtaj, 5/426, 428 ; Kanz ar-Raghibin, 3/249 ; An-Najm al-Wahaj, 5/480-481).

The Refusal of the Waqf Beneficiary

The majority of jurists, as has passed, does not require acceptance when the waqf is for a general indefinite purpose; when it is for a determined purpose, such as Zayd or a delimited group, the majority (the Hanafis, Malikis, Shafi'is according to the sound view, and Hanbalis in the madhhab) requires acceptance. They differed here over the case where the determined beneficiary refuses what was placed in waqf for him: does the waqf revert thereby, returning to the endower's ownership, or does it pass to another purpose?

The Hanafis say: if the waqf is for a specific person and then for the poor, his acceptance is required: if he accepts, the yield is his; if he refuses, it goes to the poor and he becomes as if dead. Whoever accepted what was placed in waqf cannot refuse afterwards, and whoever refused at first cannot accept afterwards. If one says "I have made a waqf of this land of mine for the children of Zayd, their descendants and their posterity, then after them for the needy," and some of them accept and some refuse, the whole yield belongs to those who accepted; if they all refuse, it belongs to the needy; if each accepted a share and refused the rest, what they refused goes to the needy. Should Zayd thereafter have children or descendants who accept all or some, it returns to those who accepted; if they all refuse, it is for the needy, and so on until they are extinct. If one says "this land is alms placed in waqf for Allah, forever, for Zayd and Amr as long as they live, then after them for the needy," and one of them dies or refuses, his share goes to the needy and the other does not deserve it, for he made the waqf for Allah at the outset and then made it obligatory for the two of them: what is Allah's belongs to the needy. The one of the two who accepted and remains alive is given precedence only in his share, unlike the first case, where he made it obligatory for them first and assigned what is after them to the needy: they therefore have nothing so long as all have not refused or become extinct. If one says "I have made a waqf of this land for Zayd and his children, then for the needy," and Zayd says "I refuse for myself and for my children," his refusal is valid for his share only; as for his children, if they are grown, refusal and acceptance are theirs; if they are minors, their share belongs to them. If one says "I have made a waqf of this land for Zayd, then for the needy," and Zayd says "I accept the yield of this year and refuse what is after it," or "I accept a third or half of it and refuse the rest," what he accepted is his and the rest is for the needy. If one says "this land is alms placed in waqf for Allah forever, for Zayd and Amr as long as they live and accept, then after them for the needy," and one accepts and the other refuses, the acceptor deserves his share and the refuser's share goes to the needy. If one of them was dead, the whole yield belongs to the living one, the waqf for the dead not being permitted; when the living one dies, the yield goes to the needy (Al-Ishaf, p. 17-18 ; Hashiyat Ibn Abidin, 4/342).

The Malikis say: if the determined beneficiary refuses what another placed in waqf for him, during the endower's life or after his death, there are three views: the first, that the waqf returns as habous upon the nearest poor of the endower's kinship group, like the waqf whose beneficiary has become extinct; it has also been said that it returns to the poor, its yield distributed among them by the diligence of the judge, without returning as ownership to its owner; the third view: it returns as ownership to the one who consecrated it or to his heirs. In sum: if it is accepted by the sane determined beneficiary or by the guardian of an incapable one, the matter is evident; if he refuses, it is a habous for another by the judge's diligence, and this when the endower made it an unrestricted habous, whether or not the one he designated accepted it; but if he intended the determined person specifically and he refused, it returned as ownership to the endower (At-Tawdih, 7/281 ; Ash-Sharh al-Kabir with the hashiyah of ad-Dasuqi, 5/474-475 ; At-Taj wal-Iklil, 4/577 ; Sharh Mukhtasar Khalil, 7/92 ; Tahbir al-Mukhtasar, 4/654 ; Minhaj al-Jalil, 8/146 ; Ash-Sharh as-Saghir, 9/141).

The Shafi'is say: if the determined beneficiary refuses the property placed in waqf, his right lapses, whether we required his acceptance or not, like the bequest and the agency, and if he returns after the refusal it does not return to him. Ar-Ruyani (may Allah have mercy on him) said: if he returns before the judge's ruling awarding it to another, it is his; if the judge ruled it for another, his right lapses. The imam an-Nawawi (may Allah have mercy on him) said: this is in the first generation; the second and third generations: the imam and al-Ghazali reported that their acceptance is never required, their entitlement not being connected to the offer; they reported two views on its reversion through their refusal, for the waqf has been established and become binding, its interruption being therefore remote. The trustee applied the disagreement over requiring their acceptance and its reversion through their refusal, based on whether they receive the right from the endower or from the first generation: if from the endower, their acceptance and refusal are like those of the first; otherwise their acceptance and refusal are not counted, like inheritance: this is the finer view. Nor is it remote that entitlement not be connected to the offer while acceptance is required, as in the bequest (Rawdat at-Talibin, 4/142-143 ; see Mughni al-Muhtaj, 3/463-464 ; Nihayat al-Muhtaj, 5/426, 428 ; Kanz ar-Raghibin, 3/249 ; An-Najm al-Wahaj, 5/480-481 ; Ad-Dibaj, 2/521-522).

The Hanbalis in the madhhab say: acceptance is not required, so on this it does not lapse by refusal, like manumission: its refusal and acceptance and the absence of both are equal in ruling. In Al-Insaf, Abu l-Ma'ali said in An-Nihayah that it reverts by his refusal like the agent who refuses the agency even though acceptance was not required; al-Harithi said: this is the most correct (Al-Insaf, 7/28). According to the second transmission, acceptance is required: if he refuses, the waqf lapses in his right without lapsing for those after him, and it becomes like the waqf of interrupted inception, its validity established for others, with two views on its nullity based on separating the transaction. Ibn Qudamah said: if we hold it valid, does it pass to the one after him, or is the property directed meanwhile to a destination of the interrupted waqf until the death of the refuser, then it passes on? Two views (Al-Mughni, 5/350 ; Ash-Sharh al-Kabir, 6/200 ; Al-Mubdi', 5/324 ; Al-Insaf, 7/26 ; Kashshaf al-Qina', 4/306-307 ; Matalib Uli an-Nuha, 4/296).

The Binding Character of the Waqf (Luzum al-Waqf)

The jurists differed over a waqf issued by an endower fulfilling all its conditions: does it become binding with no right of return, or does it remain the endower's property with a right of return? The majority of jurists, the two companions Abu Yusuf and Muhammad among the Hanafis, the Malikis, the Shafi'is and the Hanbalis, hold: the waqf is binding, the endower's right over the corpus of the waqf being cut off by any act impairing it, and his ownership leaving it as in sale: it is neither sold, given away nor bequeathed.

The proof is what Nafi' reported from Ibn Umar (may Allah be pleased with both of them):

Umar ibn al-Khattab acquired land at Khaybar and came to the Prophet (peace and blessings be upon him) to consult him about it. He said: "O Messenger of Allah, I have acquired land at Khaybar such as I have never acquired property more precious to me. What do you command me?" He said: "If you wish, retain the corpus as habous and give it as alms." Umar therefore gave it as alms: it shall not be sold, given away nor bequeathed.Reported by Bukhari (2586, chapter of conditions in the waqf) and Muslim (1632)

In another transmission of Bukhari, through Sakhr ibn Juwayriyah from Nafi' from Ibn Umar (may Allah be pleased with both of them):

Umar gave alms of property he owned at the time of the Messenger of Allah (peace and blessings be upon him), called Thamgh, consisting of palm trees. Umar said: "O Messenger of Allah, I have acquired property most precious to me, and I wish to give it as alms." The Prophet (peace and blessings be upon him) said: "Give alms of its corpus: it shall not be sold, given away nor bequeathed, but its fruit shall be spent." Umar gave it as alms, and his alms went in the way of Allah, for the captives, the needy, the guest, the wayfarer and the near kin; and no blame attaches to its keeper if he eats from it with propriety or feeds a friend without enriching himself by it.Reported by Bukhari (2613)

This shows that the words "give alms of its corpus: it shall not be sold, given away nor bequeathed, but its fruit shall be spent" are the words of the Prophet (peace and blessings be upon him), not of Umar (may Allah be pleased with him).

In a transmission: "Retain the corpus as habous and release its fruit in sabil" (reported by an-Nasa'i (3603) and Ibn Majah (2397)), which requires that it be retained as habous, all dealing in it by sale or alteration being cut off. Al-Hafiz Ibn Hajar (may Allah have mercy on him) relates in Fath al-Bari (5/401) these words of as-Subki: "I rejoiced at what occurs in the transmission of Yahya ibn Sa'id through al-Bayhaqi: 'Give alms of its fruit and retain its corpus as habous: it shall not be sold nor bequeathed,' whose apparent meaning is that the restriction is the Prophet's words (peace and blessings be upon him), unlike the other transmissions in which it appears to be Umar's words. Yet it occurs five chapters earlier through the way of Sakhr ibn Juwayriyah from Nafi', in the wording: the Prophet (peace and blessings be upon him) said: 'Give alms of its corpus: it shall not be sold, given away nor bequeathed, but its fruit shall be spent,' the most complete of the transmissions and clearest as to the aim: it is therefore better referred to Bukhari, and Bukhari reported it suspended in the chapter of sharecropping in the wording: 'The Prophet (peace and blessings be upon him) said to Umar: give alms of its corpus: it shall not be sold nor given away, but its fruit shall be spent, and Umar gave it as alms.' I noted there that the commentator ad-Dawudi had rejected this wording without its cause appearing to me; it then appeared to me to be the explicit attribution of the restriction to the Prophet (peace and blessings be upon him). And even were the restriction Umar's words, he uttered it only from what he had understood of the Prophet (peace and blessings be upon him) when he said to him: 'Retain the corpus as habous and release its fruit in sabil'."

It is also known that Umar (may Allah be pleased with him) sought nearness to Allah and returned to the Prophet (peace and blessings be upon him) concerning how to act: when he said "retain the corpus as habous," it was no longer permissible for him to depart from it. Likewise the document by which Umar established that it shall neither be sold nor given away, which could only have been written by his command, for he was the one directing and managing the matter. And because of the Companions' consensus: Abu Bakr, Umar, Uthman, Ali, Talhah, az-Zubayr, A'ishah, Zayd ibn Thabit, Rafi' ibn Khadij, Khalid ibn al-Walid, Jabir, Ibn Umar, Umm Salamah and Hafsah (may Allah be pleased with them all) did it, and refusal of it was not preserved from any of them. And because the need is pressing that the waqf be binding, so that its reward reaches him continually; and this need was met by the exit of ownership and its being made Allah's, as with the graveyard. And because whatever may bind by bequest after death may bind by word during life, like manumission. And because it is one of the ways of righteousness: it may therefore bind without the ruler's judgment, like the gift and obligatory alms (Al-Mabsut, 12/34 ; Bada'i' as-Sana'i', 6/19-20 ; Al-Hidayah, 3/19 ; Al-'Inayah, 8/356 ; Tibyin al-Haqa'iq, 3/325-326 ; Al-Ikhtiyar, 3/49-50 ; Al-Jawharah an-Nadirah, 4/97-98 ; Al-Ishraf, 3/245-246, no. 1091 ; Al-Ma'unah, 2/489 ; Adh-Dhakhirah, 6/323 ; Ash-Sharh al-Kabir with the hashiyah of ad-Dasuqi, 5/455 ; Sharh Mukhtasar Khalil, 7/79 ; Al-Iqna' of al-Mawardi, p. 119 ; Al-Hawi al-Kabir, 7/515, 521 ; Sharh Muntaha al-Iradat, 4/344 ; Kashshaf al-Qina', 4/309 ; Al-Ifsah, 2/45).

Al-Qadi Abdal-Wahhab (may Allah have mercy on him) said: the basis of "it becomes a habous made inviolable" is the Prophet's words (peace and blessings be upon him) to Umar: "Consecrate the corpus by habous and release the fruit in sabil." Umar intended to give the corpus as alms, an alms to be initiated, that is, transferring its corpus: he therefore indicated to him to retain his corpus as habous and release his fruit in sabil, which shows that the corpus is made inviolable in perpetuity; were it otherwise the aim would not be achieved, for it would return to his ownership and nullify his aim of giving it as alms. And because the unrestricted statement that this is a habous of its benefits deserves perpetuity, for he did not restrict it to any time: the unrestricted form therefore required perpetuity. And his specifying the beneficiary by saying "a habous for so-and-so" does not remove this, for that does not restrict the habous: it only initiates the gift; and because it is a word requiring consecration as habous, its unrestricted form must deserve perpetuity, on the model of the word waqf; and because the word "habous" is unrestricted, it must require inviolability, when it is for indefinite beneficiaries (Al-Ma'unah, 2/489-490).

The imam Abu Hanifah holds: the waqf is permitted, not binding, and remains the endower's property, for what is reported from Abdallah ibn Abbas (may Allah be pleased with both of them): when Surah an-Nisa descended and the shares of inheritance were made obligatory in it, the Messenger of Allah (peace and blessings be upon him) said:

No habous over the decreed shares of Allah.Reported by al-Bayhaqi in Al-Kubra (11688) and ad-Daraqutni (4/78) from the hadith of Ibn Abbas; ad-Daraqutni said: only Ibn Lahi'ah reported it through his brother, and both are weak

That is: no property is retained, in the absence of its owner's death, from the division among his heirs; and the waqf is a habous over the shares of Allah: it is therefore excluded by the Law, its sale, return and inheritance being permitted. And from Shurayh: "Muhammad came with the sale of the habis (the consecrated property)," this being his transmission from the Prophet (peace and blessings be upon him) permitting the sale of the property placed in waqf: the habis is the property placed in waqf, a passive form in the sense of the object, the waqf being in language a habous: the property placed in waqf is therefore consecrated, and its sale is permitted. Thereby it is known that the waqf does not necessitate the corpus leaving the endower's ownership.

Abu Hanifah argues further: the endower's conditions are respected in the waqf, which would not be so were it to leave his ownership, like the mosque; and he needs to give alms of the yield continually, which is possible only if the corpus remains his property; and the Prophet (peace and blessings be upon him) said to Umar: "Retain the corpus as habous and release its fruit in sabil," meaning: retain it in your ownership and give its fruit as alms, otherwise all of it would be released in sabil. For the exit of ownership to one who is not an intended owner is not lawful: Allah (exalted is He) forbade us the sa'ibah, the animal its owner would release from his ownership, as they claim, with none profiting but the poor or guests, unlike manumission or the mosque, where the servant's right is secured so that he may no longer benefit from it: this is why the servant's right is not cut off, and he even retains management of the property by directing its yields to its destinations and appointing the trustee. And because it is alms of the yield or of a nonexistent benefit, which is permitted only in the bequest. This is why Umar (may Allah be pleased with him) intended to sell it after the Prophet's death (peace and blessings be upon him), then disliked breaking what was between him and the Messenger of Allah and left it, as at-Tahawi reported; had it been binding, it would not have been permitted him to break it.

At-Tahawi (may Allah have mercy on him) reported through Yunus from Ibn Wahb that Malik reported to him from Ziyad ibn Sa'd from Ibn Shihab that Umar ibn al-Khattab (may Allah be pleased with him) said:

Were it not that I mentioned my alms to the Messenger of Allah (peace and blessings be upon him), or words to this effect, I would have taken it back.Interrupted isnad: Ibn Shihab az-Zuhri did not hear Umar; Sharh Ma'ani al-Athar (4/96)

When Umar said this, it showed that the mere setting apart of the land did not prevent his return to it; what prevented him was that the Messenger of Allah had commanded him something in it and parted from him upon his undertaking to fulfil it, so he disliked going back on it, as Abdallah ibn Amr disliked returning, after the Messenger's death (peace and blessings be upon him), to the fasting he had covenanted to perform though he was permitted not to fast. And this is Shurayh, judge of Umar, Uthman and Ali, the rightly guided caliphs (may Allah be pleased with them all): it is also reported from him through Sulayman ibn Shu'ayb from his father, from Abu Yusuf, from Ata' ibn as-Sa'ib, who said:

I asked Shurayh about a man who made his house a habous for the last and the last of his children. He said: I judge but do not give fatwa. He pleaded with him, and he said: no habous over the decreed shares of Allah.Sharh Ma'ani al-Athar (4/96)

This cannot be unknown to judges, nor can the imams follow one so ignorant, and no objector among the Companions of the Messenger of Allah (peace and blessings be upon him) or their successors (may Allah have mercy on them) denied it. And the words of the Messenger of Allah:

The son of Adam says: my wealth, my wealth. Have you any wealth, O son of Adam, but what you ate and consumed, wore and wore out, or gave as alms and stored away?Reported by Muslim (2958)

The rest belongs to the heir: the Prophet (peace and blessings be upon him) thus showed that inheritance vanishes only in the alms he confirmed, which occurs only after transfer to another.

The waqf is binding according to Imam Abu Hanifah only in three cases:

• 1. A ruler appointed by the imam rules it binding: the endower's ownership then leaves it without disagreement, for he judges in a disputed matter. The way of the ruling: the endower delivers the property placed in waqf to the trustee then wishes to return to it, pleading non-bindingness: they litigate before the judge, who rules it binding. Likewise if the heirs approve it, it is valid, for the ownership is theirs: if they consent to their ownership leaving, it is permitted, like one who bequeaths all his property.
• 2. He suspends it to his death, saying "when I die I shall have made a waqf of my house for such purpose," for by suspending it to his death he has placed it in the way of the bequest, which is permitted and counted within the third: it is a donation suspended to death, therefore of the third, like the gift and bequest in illness.
• 3. He makes it a mosque, separates it from his property and permits the people to pray in it, even if he prays in it alone: his ownership leaves it, for he made it purely Allah's; the prayer of one suffices, the act of all being impossible to gather, so the least is required, and the mosque being the place of prostration, the act of one suffices (Al-Mabsut, 12/34 ; Bada'i' as-Sana'i', 6/19-20 ; Al-Hidayah, 3/19 ; Al-'Inayah, 8/356 ; Tibyin al-Haqa'iq, 3/325-326 ; Al-Ikhtiyar, 3/49-50 ; Al-Jawharah an-Nadirah, 4/97-98).

The Binding of the Waqf by the Word Alone

The jurists differed: does the waqf bind by the word alone, or by taking possession (qabd)? Muhammad ibn al-Hasan and the Hanbalis in a transmission hold: the waqf does not bind except by taking possession, for it is a donation of property not removed from ownership: it does not therefore bind by it alone, like the gift (Al-Mubdi', 5/328). Muhammad ibn al-Hasan (may Allah have mercy on him) said: it does not leave until he appoints a trustee for the waqf and delivers it to him, for it is alms whose delivery is among its conditions, like the obligatory alms duly executed; and transfer from Allah (exalted is He) is inconceivable, for He is the owner of things: it is therefore established through delivery to the servant, as with zakat and the other executed alms (Bada'i' as-Sana'i', 6/19-20 ; Al-Hidayah, 3/19 ; Tibyin al-Haqa'iq, 3/325-326 ; Al-Ikhtiyar, 3/49-50 ; Al-Jawharah an-Nadirah, 4/98).

The Malikis, the Hanbalis in the madhhab, the Shafi'is and Abu Yusuf of the Hanafis (the fatwa resting upon him among them) hold: the waqf leaves by the word alone and taking possession is not required, for the Prophet's words (peace and blessings be upon him) to Umar: "Retain the corpus as habous and release its fruit in sabil" (an-Nasa'i (3603), Ibn Majah (2397)), without commanding him to take possession; and because he made the habous obligatory upon him; and because it is a donation preventing sale and gift: it therefore binds by it alone, like manumission; and because Umar placed in waqf those shares he had acquired from the land of Khaybar while administering his alms until Allah took him, without removing it from his hand; and Ali (may Allah be pleased with him) likewise administered his alms until Allah (exalted is He) took him; and Fatimah (may Allah be pleased with her) administered her alms until she met Allah: this shows that the waqf binds before taking possession. Nor do we admit it to be a gift, for the waqf stands as manumission, and manumission is not called a gift: so too the waqf. The meaning at root is that it is a transfer, as shown by the recipient's disposing of the gift by sale and otherwise; but the waqf is not such, as shown by the beneficiary's not disposing of it by sale or otherwise (Tibyin al-Haqa'iq, 3/325-326 ; Al-Ikhtiyar, 3/49-50 ; Al-Jawharah an-Nadirah, 4/98 ; Al-Hawi al-Kabir, 7/514-515 ; Al-Mughni, 5/349 ; Ash-Sharh al-Kabir, 6/206 ; Al-Mubdi', 5/328 ; Al-Insaf, 7/100 ; Kashshaf al-Qina', 4/309 ; Sharh Muntaha al-Iradat, 4/344 ; Al-Muharrar fi l-Fiqh, p. 370).

Ad-Dasuqi (may Allah have mercy on him) said: the waqf binds even without taking possession: if the endower wishes to return to it, he is prevented; and if it was not taken from him, he is compelled to remove it from his hand to the beneficiary (Hashiyat ad-Dasuqi on Ash-Sharh al-Kabir, 5/455 ; Al-Ma'unah, 2/489). And al-'Adawi (may Allah have mercy on him) said: if he wishes to return upon the waqf's validity, that is not his, for the waqf binds by the word (Hashiyat al-'Adawi in the margin of al-Kharashi, 7/84).

The Ruling on the Endower's Return to the Waqf

The jurists differed over the endower: is his return from the waqf valid? The majority of jurists, the Hanafis (the fatwa resting upon them), the Malikis, the Shafi'is and the Hanbalis, hold: return from the waqf is not valid once it is complete, for it is binding in their view, whether by taking possession or by the word; their proofs have just preceded in the question of whether the waqf is binding or merely permitted. Abu Hanifah holds: the waqf is not binding, so it remains his property, with the right of return and sale, except if a ruler rules it binding, or he suspends it to his death saying "if I die I shall have made a waqf of my house for such purpose," or he makes it a mosque, separating it from his property and permitting the people to pray in it: return is then not permitted him and the waqf binds (Al-Lubab, 1/617 ; and see Al-Mabsut, 12/34 ; Bada'i' as-Sana'i', 6/19-20 ; Al-Hidayah, 3/19 ; Al-'Inayah, 8/356 ; Tibyin al-Haqa'iq, 3/325-326 ; Al-Ikhtiyar, 3/49-50 ; Al-Jawharah an-Nadirah, 4/97-98 ; Al-Ishraf, 3/245-246, no. 1091 ; Al-Ma'unah, 2/489 ; Adh-Dhakhirah, 6/323 ; Ash-Sharh al-Kabir with the hashiyah of ad-Dasuqi, 5/455 ; Sharh Mukhtasar Khalil, 7/79 ; Al-Iqna' of al-Mawardi, p. 119 ; Al-Hawi al-Kabir, 7/515, 521 ; Sharh Muntaha al-Iradat, 4/344 ; Kashshaf al-Qina', 4/309 ; Al-Ifsah, 2/45).

At-Tahawi (may Allah have mercy on him) reports the same chain (Yunus, Ibn Wahb, Malik, Ziyad ibn Sa'd, Ibn Shihab) and Umar's words: "Were it not that I mentioned my alms to the Messenger of Allah, I would have taken it back" (interrupted isnad), with the same reasoning: the setting apart itself did not prevent his return; what prevented him was his covenant with the Prophet (peace and blessings be upon him) (Sharh Ma'ani al-Athar, 4/96). Al-Hafiz Ibn Hajar (may Allah have mercy on him) said: at-Tahawi argued by this word of Umar for Abu Hanifah and Zufar, that setting land apart does not prevent return, and that what prevented Umar was his having mentioned it to the Prophet (peace and blessings be upon him), disliking to part from him upon a command and then contradict it. It carries no force for two reasons: the first, the isnad is interrupted, for Ibn Shihab did not reach Umar; the second, his words bear what I mentioned, and also bear that Umar held the waqf valid and binding unless the endower stipulated the return as a condition, in which case he could return: at-Tahawi likewise reported from Ali a saying to that effect, so it is no proof for whoever holds the waqf non-binding, this reading being possible. And were this reading established, it would prove the validity of the waqf suspended upon a condition, as with the Malikis and Ibn Suryaj, who said that its benefits return to him after the fixed term, then to his heirs: were the suspension to a legitimate end, the waqf would be valid by consensus, as in "I made it a waqf for Zayd for a year, then for the poor." This hadith of Umar is the foundation of the legality of the waqf. Ahmad said: Hammad ibn Khalid reported to us from Abdallah al-Umari from Nafi' from Ibn Umar:

The first alms (placed in waqf) in Islam was the alms of Umar.Transmitted by Ahmad

Umar ibn Shabbah reported from Amr ibn Sa'd ibn Mu'adh: "We asked about the first habous in Islam: the Emigrants said: the alms of Umar; the Helpers said: the alms of the Messenger of Allah (peace and blessings be upon him)," with al-Waqidi in its isnad. And in the expeditions of al-Waqidi: the first alms placed in waqf in Islam was the lands of Mukhayriq, which the Prophet (peace and blessings be upon him) placed in waqf after his bequest. At-Tirmidhi said: we know of no disagreement among the Companions and the early scholars over the lawfulness of placing lands in waqf. Shurayh rejected the habous, and some interpreted it. Abu Hanifah said: it does not bind, and all his companions contradicted him except Zufar ibn al-Hudhayl. At-Tahawi reports from Isa ibn Aban that Abu Yusuf permitted the sale of the waqf; then this hadith of Umar reached him and he said: "Who heard this from Ibn Awn?" Ibn Ulayyah related it to him, and he said: "None may contradict this; were Abu Hanifah to learn of it, he would rule by it," and he abandoned the sale of the waqf until it was as if no one disputed it.

Despite this report of at-Tahawi, he defended his thesis in his usual manner, saying: the words in the story of Umar, "consecrate the corpus by habous and release the fruit in sabil," do not require perpetuity: he may have meant the duration of his own choosing. The weakness of this interpretation is evident: nothing is understood from "I made a waqf and consecrated by habous" but perpetuity, until the condition is stated explicitly by those who hold that; as if he did not know the transmission containing "a habous as long as the heavens and the earth endure." Al-Qurtubi said: the return upon the waqf contradicts the consensus and is not to be heeded; the finest excuse for one who did so is Abu Yusuf's word, for he knew Abu Hanifah best. Ash-Shafi'i indicated that the waqf is among the distinctive traits of the people of Islam (the waqf of lands and real estate), saying: "we know not that it occurred in the Age of Ignorance; the reality of the waqf in the Law is the issuing of a formula that cuts off the endower's dealing in the corpus of the property placed in waqf, whose benefit endures, and which fixes the direction of its benefit to a way of good" (Fath al-Bari, 5/402-403). Ibn Nujaym (may Allah have mercy on him) said: in sum, there is no disagreement over its validity; the disagreement concerns its binding force: one denied it and the two others affirmed it, the endower's word embracing both, and preference resting upon the proof. Al-Khassaf argued amply for their view by the waqf of the Prophet (peace and blessings be upon him) and his Companions (may Allah be pleased with them); and Abu Yusuf, who had been with his imam, went on pilgrimage with ar-Rashid, saw the waqfs of the Companions in Medina and its surroundings, returned and gave fatwa on its binding force.

To Whom Does the Waqf Belong?

Muhammad rejected Abu Hanifah's view in the book on this account, calling it an arbitrary dominion over people without proof, saying: the people only took the view of Abu Hanifah and his companions for their abandonment of such arbitrary dominion; were following Abu Hanifah in this permitted, those who preceded him, such as al-Hasan al-Basri and Ibrahim an-Nakha'i, would be more worthy of being followed; and Muhammad would not be praised for his saying by reason of his master. It is said that his spirit was broken by that and he was unable to derive the questions of the waqf as al-Khassaf and Hilal did; and were Abu Hanifah alive when he said it, he would have had to abide by it, for Malik said of Abu Hanifah: "I saw a man who, were he to say: this cylinder is of gold, would be followed." The shaykhs preferred the view of the two companions and said: the fatwa rests upon it. In Fath al-Qadir: that is the truth, and it is not remote that the consensus of the Companions and those after them was transmitted against his view (Al-Bahr ar-Ra'iq, 5/209-210).

Does the waqf enter the ownership of the beneficiary? Does it remain the property of Allah? Or does it remain the endower's property? The jurists differed: does the waqf pass to the beneficiary's ownership, or does it remain Allah's (exalted is He), after their agreement that the mosque passes to Allah's ownership, as do the schools, the bridges, the fountains and the like?

The Hanafis, the Shafi'is in the madhhab and Ahmad in a transmission hold: it leaves the endower's ownership and becomes a habous by the status of Allah's ownership, without entering the beneficiary's ownership, for were it to enter it, its sale would be executed like his other properties: it thus becomes a habous by the status of Allah's ownership, in a manner such that its benefit reaches His servants; it must therefore leave the endower's ownership, be freed for Allah and released from appropriation, so that its benefit may endure and its waqf continue for the servants. And because it is the removal of ownership of the corpus and benefit for drawing near to Allah: ownership therefore passes to Him, like manumission. The benefits of the waqf are the beneficiary's property, which he disposes of as owners do: he takes them himself or through another by loan or lease, by consensus, for that is the endower's aim (Al-Hidayah Sharh al-Bidayah, 3/13 ; Al-'Inayah, 8/319, 321 ; Mukhtasar al-Wiqayah, 2/206 ; Al-Jawharah an-Nadirah, 4/97 ; Al-Ikhtiyar, 3/49 ; Al-Lubab, 1/619 ; Al-Hawi al-Kabir, 7/515 ; Al-Muhadhdhab, 1/422 ; Mughni al-Muhtaj, 3/474 ; Nihayat al-Muhtaj, 5/445 ; Ad-Dibaj, 2/529 ; An-Najm al-Wahaj, 5/504-505).

The Malikis, the Shafi'is according to one view, the Hanbalis according to one view, and Ibn al-Humam of the Hanafis, hold: it remains the endower's property, for his words to the Prophet (peace and blessings be upon him) to Umar: "Consecrate the corpus by habous and release the fruit in sabil," which requires that it remain as it was; and because the owner gave alms of the benefits and bound himself to that, which does not remove the corpus from his ownership, like the loan (the ariyah). Al-Qadi Abdal-Wahhab (may Allah have mercy on him) said: our proof that it does not pass to the beneficiaries is what we cited of "consecrate the corpus by habous and release the fruit in sabil," containing two indicators: the first, that consecration as habous negates the transfer of ownership, for of one who transferred something to another it is not said that he consecrated it by habous; the second, that there is no difference between it and the fruit, whereas it is established that the fruit leaves his ownership to that of the beneficiaries: this shows that the corpus is not their ownership, for were it theirs, the stipulation preventing their sale, gift and disposal of it, and its direction to another purpose after their death, would not be valid, and it would be lawful for the two of them to agree upon its dissolution, which is void. And our proof that it cannot pass to one who is not an owner is that whatever cannot be manumitted nor sold must have an owner, taking account of the animal and the movable goods (Al-Ishraf, 3/249-250).

Al-Kamal ibn al-Humam (may Allah have mercy on him) said: with Malik it is the habous of the corpus within the endower's ownership: his ownership does not leave it, but it is neither sold, bequeathed nor given away. Some Shafi'is reported this to be another view of ash-Shafi'i and Ahmad, for the Prophet (peace and blessings be upon him) said: "Consecrate the corpus by habous and release the fruit in sabil." And this is the finest of views, for the disagreement between the corpus and the measure is established in both views: its exit to one who is not an owner, and the establishment of his ownership or another's in it with the prevention of its sale and gift; each has its analogue in the Law: of the first, the mosque and its like; of the second, the umm walad, in whom ownership remains without sale, gift or inheritance, and likewise the absolute tadbir with us. Either view can thus occur by the proof, and there is no doubt that the endower's ownership is certainly established, and what is known of the waqf by its conditions is the prevention of sale and the like: that much alone is therefore established, the rest remaining as it was, the removing cause not having been realized. For the hadith, in some transmissions, says "give alms of its corpus," which is not its apparent meaning, else it would exit to another owner; then others explained it by "if you wish, retain its corpus as habous and give it as alms," that is, of the fruit or the yield, whose apparent meaning is retaining it as it was: no proof requiring the exit from ownership is thus established. Likewise the meaning the author invoked, "the need is pressing that the waqf be binding," indicates only its bindingness. In sum: the Prophet's words (peace and blessings be upon him) to Umar "give alms" and his words "retain as habous" are established, and the two implications differ: the meaning of "give alms of its corpus" is "transfer it to the poor for Allah," and the meaning of "retain as habous" is "retain it as it was"; they can only be intended in one of the two senses, else the Prophet (peace and blessings be upon him) would have answered Umar in a single matter with two contradictory commands. Either "retain as habous" is carried to the meaning of "give alms," on which the consensus bears its negation, since none of the three admits the poor's ownership of the corpus: "give alms" must therefore be carried to the meaning of "retain as habous" (Sharh Fath al-Qadir, 6/204).

The Shafi'is according to one view and the Hanbalis in the madhhab hold: the waqf passes to the beneficiary's ownership when it is a determined human being or a countable group, for the waqf does not remove the beneficiary from ownership: do you not see that it may be contested by seizure and that his hand is established upon it? There is in it only that he does not dispose of it by sale, which does not show that he did not acquire it: the master does not sell the umm walad, who is yet his property; and because it is a cause removing the dealing in the corpus: the beneficiary thus acquires it by transfer, like the gift. And were it a transfer of the bare benefit, it would not bind, like the loan and the dwelling. As for a beneficiary that cannot be owned, such as the mosque and the like, ownership in the waqf passes to Allah (exalted is He) (Al-Hawi al-Kabir, 7/515 ; Al-Muhadhdhab, 1/422 ; Al-Kafi, 2/455 ; Ash-Sharh al-Kabir, 6/207 ; Kashshaf al-Qina', 4/309-310 ; Majmu' al-Fatawa, 29/179 ; Sharh az-Zarkashi, 2/197 ; Al-Ifsah, 2/46).