Legal Interdiction (Hajr): Prodigality and Insolvency

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Legal Interdiction (Hajr): Prodigality and Insolvency

Fourth, that he not be under legal interdiction (hajr) for prodigality (safah) or insolvency (falas). The jurists stipulated in general, for the validity of the waqf, that the endower not be interdicted; the interdiction is of two kinds: interdiction for prodigality and interdiction for insolvency.

First, interdiction for prodigality: the majority of jurists, the Hanafis (upon a disagreement coming among them), the Malikis, the Shafi'is and the Hanbalis in general, require of the endower that he not be interdicted for prodigality, for the waqf is a donation and the interdicted person is not capable of donation. Ibn Nujaym (may Allah have mercy on him) said: among the conditions of the waqf is the absence of interdiction upon the endower for prodigality or debt, as al-Khassaf stated it unrestrictedly. The question also arises whether the ruling on the bindingness of a waqf composed of two madhhabs (validating it by one school and making it binding by another) is permitted: this is what is mentioned in Anfa' al-Wasa'il, and he answered it by the fact that the mufti in Al-Muniyyah permitted the composite ruling; we have treated this already in the discussion of the waqf of undivided shared property (Ibn Abidin, 4/398).

The Malikis say: the endower's condition is to be capable of donation, meaning one upon whom there is no interdiction for prodigality (Ash-Sharh al-Kabir with the hashiyah of ad-Dasuqi, 5/457, 491 ; Sharh Mukhtasar Khalil, 7/103). The Shafi'is say: the waqf of one interdicted for prodigality is not valid, even with the counsel and management of his guardian, for lack of capacity of donation from him (Rawdat at-Talibin, 4/133 ; Mughni al-Muhtaj, 3/453 ; Nihayat al-Muhtaj, 5/412 ; Hashiyat al-Bayjuri, 2/88 ; I'anat at-Talibin, 3/297 ; Ad-Dibaj, 2/515). The Hanbalis say: the waqf of the prodigal (safih) is not valid (Sharh Muntaha al-Iradat, 4/330 ; Matalib Uli an-Nuha, 4/271).

Second, interdiction for insolvency: the debtor either places a waqf before the interdiction pronounced upon him or after it. If he places a waqf before the interdiction upon him, the generality of jurists, the Hanafis, Malikis, Shafi'is and Hanbalis in general, hold: the insolvent debtor's act, if he places a waqf before the interdiction upon him, is effective and the waqf valid. Ibn Qudamah (may Allah have mercy on him) said: whatever the insolvent did before the ruler's interdiction upon him, of sale, gift, acknowledgment, payment of some creditors or other, is permitted and effective; this is the view of Abu Hanifah, Malik and ash-Shafi'i, and we know of no one who contradicted them, for he is sane, not interdicted: his act therefore takes effect like that of others; the cause of prevention being the interdiction, the cause does not precede its effect; and he is among the people of disposal and was not interdicted: he therefore resembles one whose liabilities are discharged.

If he leased a riding beast or a house, his lease is not dissolved by the insolvency, and the lessee is more entitled to it until its term ends (Al-Mughni, 4/283-284 ; Ash-Sharh al-Kabir, 4/464). The Hanafis say: the waqf of the indebted interdicted person is not valid according to whoever holds so; if he is not interdicted (meaning the debtor), his waqf is valid even if he intends harm to his creditors, their right being established in his liability (Al-Ishaf, p. 10). Ibn Abidin (may Allah have mercy on him) said: his words "unlike the sahih (sound debtor)" mean that the waqf of the sound debtor is valid even if he intends evasion by it, for he encountered his property in his ownership, as in Anfa' al-Wasa'il from Adh-Dhakhirah.

In Al-Fath: it is binding and the creditors do not break it when it preceded the interdiction, by consensus, for their right had not attached at the moment of its validity. He gave fatwa with it in Al-Khayriyyah among the sales, and mentioned that Ibn Nujaym gave fatwa with it, with discussion of it from Al-Ma'rudat to come (Ibn Abidin, 4/397).

Some Hanafis, such as Abu as-Su'ud and his student ash-Shaykh Isma'il al-Hayk, hold the waqf invalid in this case (the debtor not yet interdicted but overwhelmed by debt). Imam Ibn Abidin (may Allah have mercy on him) was asked about a sane man indebted with an engulfing debt who placed a waqf for an unending purpose of righteousness, had it registered by the judge legally, then died: is his waqf broken for the creditors or not? He answered: the waqf being registered legally, it is not broken for that, for the waqf is a donation whose validity requires, by consensus, neither freedom of liability from the engulfing debt, nor absence of interdiction for prodigality or for debt according to whoever holds so; the interdiction is established only by judgment, as they stated explicitly. In Al-Ishaf: if he is not interdicted (meaning the debtor), his waqf is valid even if he intends harm to his creditors.

Others stated it explicitly, and he contradicted the waqf of the sick person in mortal illness whose debt engulfs his property, for then the creditors' right attaches to the corpus itself, whereas here it is purely in the liability: our scholars founded the rulings upon that. As for when he is interdicted, al-Khassaf stated unrestrictedly that it is not valid; Ibn al-Humam said: it ought to be valid, which is the sound view among the verifying scholars, and valid with all when a ruler rules it. I say: al-'Ala'i said in Ad-Durr al-Mukhtar: the waqf of the pledger in straits and of the indebted sick person with an engulfing debt is void, unlike the sound case before the interdiction; then he said: but in the Al-Ma'rudat of the mufti Abu as-Su'ud he was asked about one who placed a waqf for his children fleeing from debts: is it valid? He answered: it is not valid nor binding, and the judges are prevented from ruling and registering the waqf to the measure of what is occupied by the debt.

Al-'Ala'i therefore supplemented by what is in the Al-Ma'rudat and confirmed it, and his student, the learned shaykh Isma'il al-Hayk, followed him in his fatwas: he was asked about a man owing a debt to Zayd who owned only a house whose price does not cover his debt, having nothing beyond it to pay his debt, and who placed the house in waqf to prevent the creditor. He answered: the judge must not execute this waqf, and the man mentioned will be compelled to sell it and pay the debt, and the judges are prevented from executing such a waqf, as the deceased grand mufti Abu as-Su'ud effendi indicated, may Allah encompass him in His pardon (Tanqih al-Fatawa al-Hamidiyyah, 2/217-218 ; Ad-Durr al-Mukhtar, 4/399).

As for the Malikis, they distinguish the waqf being before the debt or after it, and the beneficiary taking possession of the property placed in waqf or not. If the waqf occurs after the debt is realized, the waqf is void and the property sold for the debt, the obligation being preferred to the donation, whether he placed it in waqf for his interdicted beneficiary or for another. If the waqf occurred before the debt: if the beneficiary took possession of the property before the debt, the waqf is valid and the debt attaches to the endower's liability; if the beneficiary had not taken possession of the property when the debt arose, the creditor chooses between confirming the waqf and annulling it and taking it in his debt, the right being his.

If the precedence of either is unknown, a waqf having been made and a debt upon the endower, without knowing whether the debt precedes the waqf or follows it: if the property left the endower's hands and the beneficiary, not interdicted, took it, the waqf is valid; otherwise it is void and sold for the debt, the obligation being preferred to the donation.

If a person places property in waqf for his interdicted beneficiary, the debt arising after the waqf and the guardian taking it for the beneficiary before the debt arose, the waqf is valid under four conditions: that the endower attest the waqf; that he direct the yield to its destination among the needs of his interdicted beneficiary, not his own needs; that the property in waqf not be a dwelling the endower occupies; and that what the endower placed in waqf for his interdicted beneficiary not be undivided shared property without designating a share in it for him. If these conditions, or one of them, are not met, the waqf is void.

But if he placed a waqf for his interdicted beneficiary and he took possession of it for him (the four preceding conditions being met: attesting the waqf, directing the yield to the beneficiary, the property being neither a dwelling of the endower nor undivided without a designated share), and a debt weighs upon the endower and the precedence of the two is unknown (not knowing whether the debt precedes the waqf or follows it), the waqf is void and sold for the debt, the obligation being preferred to the donation, this taking by the endower being weak, the waqf not having left his hands: for they say "he took it by his father's taking. Wherefore if a stranger took it for the interdicted beneficiary with the guardian's permission while the waqf is sound, the waqf is valid, like the grown child or the stranger taking for himself while the endower is sound: the waqf is thus not lost by ignorance of precedence, but by its realization.

Likewise if the interdicted person, minor or prodigal, took it for himself: the waqf is not lost, their taking being counted according to the sound view of the madhhab (Ash-Sharh al-Kabir with the hashiyah of ad-Dasuqi, 5/462, 465 ; Mawahib al-Jalil, 7/485-486 ; At-Taj wal-Iklil, 4/566, 569 ; Sharh Mukhtasar Khalil, 7/83, 85 ; Al-Fawakih ad-Dawani, 2/162 ; Tahbir al-Mukhtasar, 4/644, 646 ; Hashiyat as-Sawi on Ash-Sharh as-Saghir, 9/160-161).

The Shafi'is and the Hanbalis say: if the endower is indebted but not interdicted, his act is valid, which is also the view of the Hanafis and the Malikis; if he is interdicted, his act is void. Ibn Qudamah (may Allah have mercy on him) said: whatever the insolvent did before the ruler's interdiction upon him, of sale, gift, acknowledgment, payment of some creditors or other, is permitted and effective: this is the view of Abu Hanifah, Malik and ash-Shafi'i, with no known contradiction; then, once he is interdicted, his act takes effect on nothing of his property: if he dealt by sale, gift, waqf, or paid his wife a dower or the like, it is not valid: this is Malik's view and ash-Shafi'i's.

As for his dealing in his liability, it is valid: buying, borrowing, or standing surety, for he is capable of disposal, and only his property is subject to interdiction, not his liability; but he does not share with the holders of these debts the creditors, for they consented to that knowing him insolvent and dealt with him; and whoever did not know was negligent, his case being of notoriety, by which he will be pursued after the lifting of his interdiction.

Al-Bahuti (may Allah have mercy on him) said: the insolvent's disposal of his property before the interdiction upon him is valid by explicit text, even if his debt engulfs all his property, for he is sane and not interdicted, the cause of prevention being the interdiction, whose cause does not precede it; he sins, however, if he harms his creditor, as al-Amidi al-Baghdadi mentioned (Sharh Muntaha al-Iradat, 3/448 ; and see Al-Mughni, 4/283-284 ; Ash-Sharh al-Kabir, 4/464 ; Rawdat at-Talibin, 4/133 ; Mughni al-Muhtaj, 3/453 ; Nihayat al-Muhtaj, 5/412 ; Hashiyat al-Bayjuri, 2/88 ; I'anat at-Talibin, 3/297 ; Ad-Dibaj, 2/515).

The Waqf of the Sick Person in Mortal Illness

The sick person either places a waqf for other than his heirs, or for his heirs, and in both cases he may be indebted or not. First, the waqf for other than the heirs: the jurists of the four schools, the Hanafis, Malikis, Shafi'is and Hanbalis in the madhhab, stated explicitly that the sick person in mortal illness who places a waqf for other than his heirs, the waqf is valid, but it is like the bequest in its execution from the third: for it is a donation, and the donation of the sick person stands as the bequest attached to after death, counted therefore from the third, unless the heirs approve it after his death, not before: the waqf is then valid in what exceeds the third.

The Hanafis say: the waqf in mortal illness is binding, but it is like the bequest in its execution from the third: if he dies without returning from it, it is executed from the third. If the sick person places his land or house in waqf, in mortal illness, for the poor and needy, the waqf is permitted from the third, for it is a donation, and the donation of the sick person stands as the bequest attached to after death, counted therefore from the third, as if he bequeathed that his land be placed in waqf after his death. If it does not come out of the third, there being no property for him besides this land, the waqf of the third is permitted and that of the two thirds void, unless the heirs approve; if some approved and some refused, it is permitted in the approver's share and void in the refuser's share, unless other property appears to him to bring the waqf out of its third: it then binds in the whole (Al-Ishaf, p.

35-36 ; Al-Muhit al-Burhani, 6/44 ; Al-Bahr ar-Ra'iq, 5/211-212 ; Majma' al-Anhar, 2/595 ; Ibn Abidin, 4/396-397 ; Tanqih al-Fatawa al-Hamidiyyah, 2/201). Al-Marghinani said in Al-Hidayah: if he placed a waqf in his mortal illness, at-Tahawi said: it is like the bequest after death; the sound view is that it does not bind according to Abu Hanifah and binds according to the two others, but is counted from the third; the waqf in health is from the whole property (Al-Hidayah, 3/14 ; Al-Bahr ar-Ra'iq, 5/210 ; Ibn Abidin, 4/347).

The Malikis say: the waqf in health is from the whole capital, in illness or bequest from the third; for in health no interdiction attaches to his property from anyone, neither heir nor other, so his gifts and presents are from the whole capital; the sick person is interdicted on account of his heirs, and what he does is halted to the third after his death, for he may not remove from them more than the third after his death, that being the measure of what was allotted him. And he was not ruled to execute it from the third immediately because the remaining two thirds may perish and he may die upon this amount only: what counts is what he leaves after death, not before, else the bequests would be executed before the two thirds reach the heirs, which is not permitted; unless the heirs approve what exceeds the third, in which case it is permitted (Al-Ma'unah, 2/492 ; Hashiyat ad-Dasuqi with Ash-Sharh al-Kabir, 5/491).

The Shafi'is say: if the sick person in mortal illness placed property in waqf for a stranger, it is valid in the third, and what exceeds the third is not executed except by the heirs' approval after his death, not before (Al-Bayan, 8/95 ; Mughni al-Muhtaj, 3/453 ; Nihayat al-Muhtaj, 5/412 ; An-Najm al-Wahaj, 5/455 ; Ad-Dibaj, 2/515). The Hanbalis say: the waqf of a sick person of a portion exceeding a third of his property is not executed, like the rest of his donations, even if his waqf is for a stranger, like the gift and bequest in illness. Ar-Ruhaybani (may Allah have mercy on him) said: the tendency is that the sick person's waqf of what exceeds the third is executed without the heirs' approval, whether the waqf is for some of them or for a stranger, like the gift in illness: it is a tendency (Matalib Uli an-Nuha, 4/404).

Second, if the sick person in mortal illness places a waqf for his heirs: the jurists differed over its validity. The Hanafis and the Hanbalis in the madhhab permit it even without the heirs' consent or that of the rest of them, but it is from the third only, the rest being suspended upon the heirs' approval: if they approve, it is valid, otherwise it is void in the rest. The Malikis, the Shafi'is and the Hanbalis in a transmission prevent placing property in waqf for his heirs in mortal illness, even in the third, unless the heirs approve it. What exceeds the third is not permitted, by consensus, except with the heirs' permission; what is of the third or less is permitted according to the Hanafis and the Hanbalis in the madhhab even without the heirs' approval, and not permitted according to the Malikis, the Shafi'is and the Hanbalis in a transmission without the heirs' approval, with the details in each school that follow.

The Hanafis say: if the sick person placed a waqf for some of the heirs without the rest approving, its root is not void: only what he made of the yield for some of the heirs is void, being directed according to their shares of inheritance from the endower so long as the beneficiary lives, then, after his death, directed to whom the endower stipulated, for it is a bequest that returns to the poor, not like his bequest to an heir, whose root is void by refusal.

They report the case of a woman who placed a residence in waqf, in her illness, for her daughters, then after them for their children and her children's children forever, so long as they succeed one another, and, when they are extinct, for the poor; then she died of her illness leaving as heirs two daughters and a sister by the father, the sister not content with what she did and having no property besides the residence: the waqf is permitted in the third and not in the two thirds; the two thirds are divided among the heirs according to their shares, and the third placed in waqf: what comes out of its yield is divided among all the heirs according to their shares so long as the two daughters live; when they die, the yield is directed to their children and her children's children as the endower stipulated, no right for the heirs therein. In Az-Zahiriyyah: a man placed a house of his in waqf, in his illness, for his three daughters, having no heir besides them: a third of the house is a waqf and the two thirds free for them to do with them as they wish.

Al-Faqih Abu l-Layth said: this if they do not approve; if they approve, the whole becomes a waqf for them. In sum: if the sick person placed a waqf for some of his heirs, then after them for their children, then for the poor, and the other heir approves, all is a waqf and the condition followed; otherwise the two thirds are ownership between the heirs and the third a waqf, its yield divided like the two thirds: directed to all the heirs so long as the beneficiary lives; when he dies, the yield of the third placed in waqf is divided among those to whom the waqf passes. If some of the beneficiaries die, his share passes to his heirs so long as one of the beneficiaries lives (Al-Ishaf, p. 35-38 ; Al-Bahr ar-Ra'iq, 5/210 ; Al-Muhit al-Burhani, 5/697 ; Ibn Abidin, 4/345-346 ; Durar al-Hukkam, 5/210).

The Malikis say: if he placed a waqf for his heir in mortal illness, the waqf is void, whether the third bears it or not, for it is like the bequest: the waqf for some of the heirs or all of them; and the bequest to an heir is void even if the beneficiary took possession, reverting as inheritance, unless the rest of the heirs other than the beneficiary approve it: if they approve, it is not void, for it is the inception of a waqf from them. If the endower then recovers from the illness in which he made the waqf and then dies, the waqf is valid as if he made it in health.

If he associated the heir with a determined non-heir, the heir's share alone is void; if he associated with him an indeterminate person, with descent or return, what he reserved for the non-heirs is a habous for them, and if they are a group it is between them; and what he reserved for the heir is between all the heirs upon the decreed shares of Allah (exalted is He), the property being placed in waqf in their hands so long as the habous beneficiary among the heirs lives; when they become extinct, all becomes a pure habous for the partners in the habous among the non-heirs. The Malikis excepted from the prohibition of the waqf for the heir the waqf with descent (ta'qib), a matter known among them as the "children of the bodies (awlad al-a'yan)".

The meaning: when a person places in waqf, in mortal illness, for his heirs, the third bearing it, with descent, saying "it is a waqf for my direct children, my children's children, their offspring and their posterity," or for his brothers, their children and their posterity, or for his brothers, his paternal uncle's children and their posterity, or his brothers, their posterity and his paternal uncle's children: the rule of that question is that the sick person place in waqf for an heir and a non-heir and their posterity: it is then valid, provided it comes out of the third, and what took the place of the children of the bodies is not void, for another's right attached to the waqf: the children of the bodies, upon their death, the waqf returns to their children.

The waqf being valid on this footing, what is in the hands of the children of the bodies is a waqf, not ownership, and its division is like inheritance: the male takes the female's double portion even if the endower stipulated their equality, according to the well-known view, it is not a real inheritance: they may therefore neither sell it nor give it away, for it is in their hands a waqf, not ownership; and all the heirs enter into the waqf, like the mother and the wife, even if he did not place a waqf upon them. Example: "I made a waqf for my direct children (the children of the bodies), my children's children and their posterity," or "I placed in waqf for an heir and a non-heir and their posterity": the waqf is valid; if he did not say "and their posterity," but said "for my children and my children's children," the waqf upon the children is void and valid upon the children of the children: the descent is a condition in this question, like the coming out of the third.

Explanation by example: three direct children, four children of children and their posterity, leaving a wife and a mother who enter with the children: four sevenths for the child of the child, as a waqf. The division is then upon seven shares: three shares for the three direct children, remaining in their hands like inheritance (the male taking the double of the female), and because it is a waqf, what took the place of the direct children is not void, another's right having attached to it: the mother, the wife and the other heirs enter, the mother taking her sixth as inheritance and the wife her eighth, the remainder divided between the three children in thirds, and the four children of children taking its four sevenths as a waqf, the male taking the double of the female: this is Ibn al-Qasim's view, the well-known one, valid when their need is one, otherwise according to the need: so said Sahnun and Muhammad ibn al-Mawwaz.

In sum: the property placed in waqf in illness, in the designated portion with its condition, is divided at the outset upon seven, the number of the children of the bodies and the children of children; then the three shares of the children of the bodies are divided, the male taking the double of the female, the mother and the wife entering into them. If a child or more is born to one of the two groups, the division is dissolved, for it was of seven and became of eight: this is of what there is no disagreement, like his death, that is, as the division dissolves by the death of one of the direct children or of one of the children of children, according to the more correct of Ibn al-Qasim's two views, which is the madhhab of the Mudawwanah.

If one of the children of the bodies dies, the division is of six: two shares for them of six, of which a sixth for the mother and an eighth for the wife, the remainder divided upon three: the two remaining children of the bodies and their dead brother, who lives by the male in estimation, his portion going to his heirs after deduction of the obligatory shares; likewise if a second dies. If all the children of the bodies die, the whole habous returns to the child of the child as a waqf, with what the wife and mother have in hand, for their taking was only in sequence to the children; and if the deceased is of the child of the child, half goes to the children of the bodies and half to the children of children. Their saying "the dead one lives by the male" shows that the upper stratum excludes only its own branch: were the children of children to become extinct, all returns like an inheritance, that is, they benefit from it as ownership; and were they too extinct, one returns to the returns of the habous.

But not the wife and the mother: if the endower's wife or mother dies, the division is not dissolved, what was in the hand of the deceased remaining a waqf for her heirs; likewise if their heir dies so long as one of the children of the bodies remains; and if the mother or wife has no heirs, the share of the deceased of them goes to the treasury (Ash-Sharh al-Kabir with the hashiyah of ad-Dasuqi, 5/465, 468 ; 'Aqd al-Jawahir ath-Thaminah, 3/962-963 ; Al-Fawakih ad-Dawani, 2/162 ; Mawahib al-Jalil, 7/486 ; At-Taj wal-Iklil, 4/569-570 ; Sharh Mukhtasar Khalil, 7/85-87 ; Tahbir al-Mukhtasar, 4/646, 648 ; Hashiyat as-Sawi, 9/149-150).

As for the Shafi'is, al-'Amrani (may Allah have mercy on him) said: if he placed a waqf for his heir in mortal illness, the waqf is halted upon the heirs' approval, whether the third bears it or not, like the bequest made to him. If he had a house and placed it in waqf for his son in mortal illness, having no heir besides him, al-Mas'udi said in Al-Ibanah: the waqf binds in its third, for the most that can be said is that it interposed itself between him and its third, and he may do that in his third. As for the two thirds: the son may annul the waqf in them, for man may not donate in mortal illness except from a third of his legacy: if he annuls it, there is no discussion; if he chooses to approve it as a waqf for himself: if we say "the heir's approval is the inception of a gift from him," it is not valid, for one may not place a waqf for oneself; if we say "it is the execution of what the testator did," it is valid.

If he had a house placed in waqf for his son and daughter in halves between them, the third bearing it, with no heir besides them, and the son approved the waqf upon his sister: valid, the house remaining a waqf between them in halves; if he refused to approve it, Ibn al-Haddad said: the waqf is void in the half of the daughter's share (which is a quarter of the house), the quarter remaining in waqf for the daughter and the half in waqf for the son, then they divide the quarter in which the waqf was void between them, the male taking the double of the female. The question divides into twelve shares: for the son eight shares: six of them a waqf upon him and two shares free for him; for the daughter four shares: three a waqf upon her and one share free for her.

If he had a house placed in waqf for his son and wife in halves between them, with no heir besides them, and the house came out of his third, and the son approved the waqf upon the wife: it remains a waqf between them in halves; if he did not approve, the husband preferred the wife by three shares of eight of the house: the waqf is void in it, it becoming the son's ownership free, and four shares of eight of the house remain a waqf upon the son: four quarters of his share then become a waqf upon him and three quarters of his share free for him; the wife's share must likewise be so, equality in the waqf being stipulated between them: four quarters of her share's value a waqf upon her, and three quarters of her share free for her. Multiply eight by seven: that makes fifty-six: for the son forty-nine shares: twenty-eight of them a waqf upon him and twenty-one free for him; for the wife seven shares: four a waqf upon her and three free for her (Al-Bayan, 8/95-96).

The Hanbalis in the madhhab say: if a person placed a waqf of his third or less, in the dreaded illness, for some of his heirs, it is permitted; or if he bequeathed his waqf for some of his heirs, it is permitted, like strangers. In the transmission of the Jama'ah, among them al-Maymuni, he said: it is permitted for a man to place property in waqf, in his illness, for his heirs. It was said to him: do you not hold there is no bequest for an heir? He said: yes, but the waqf is other than the bequest, for it is neither sold, nor bequeathed, nor does it become the heirs' ownership for them to benefit from its yield.

In the transmission of Ahmad ibn al-Hasan, he stated explicitly in his question the placing of a third in waqf for some of his heirs to the exclusion of others: permitted. Al-Kharqi said: most permitted it. Ahmad (may Allah be pleased with him) argued by the hadith of Umar (may Allah be pleased with him):

This is what Abdallah Umar, commander of the faithful, bequeathed, should the event of death befall him: Thamgh is alms, the slave in it, the share of Khaybar and its slave, and the hundred measures Muhammad (peace and blessings be upon him) fed me: Hafsah administers it so long as she lives, then the one of counsel among her household; it is neither sold nor bought, spent where he sees fit among the beggar, the deprived and the near kin, and no blame upon its keeper if he eats or buys a slave.

Reported by Abu Dawud in similar terms

The proof is that he gave Hafsah the administration of his waqf, eating from it and buying a slave. Al-Maymuni said: I said to Ahmad: the Prophet (peace and blessings be upon him) only commanded the setting apart, and there is no heir in the hadith. He said: the Prophet (peace and blessings be upon him) commanded him while he had already placed it in waqf for his heirs, retaining the corpus as habous upon them all; and because the waqf is not in the meaning of wealth, no disposal in it being permitted: it is therefore like the manumission of an heir.

The second transmission, chosen by Ibn Qudamah (may Allah have mercy on him): that is not permitted; if he does it, the waqf is halted upon the approval of the rest of the heirs. Ahmad, in the transmission of Ishaq ibn Ibrahim, said of one who bequeathed to his sons' children land to be placed in waqf upon them: "if they do not inherit it, it is permitted," the apparent of this being that the waqf upon them in illness is not permitted, chosen by Abu Hafs al-'Ukbari and Ibn Aqil, and it is ash-Shafi'i's madhhab. Ibn Qudamah said: our argument: it is the singling out of some of the heirs with his property in his illness: he is prevented from it, like gifts; and because whoever has no right to the bequest of a corpus has no right to the bequest of benefit, like the stranger beyond the third. As for Umar's report, he did not single out any of the heirs with his waqf, and the dispute is only over singling out some of them.

As for making the administration Hafsah's, that is not a waqf upon her and does not therefore fall within the disputed point; and his benefiting from the yield does not require the permissibility of singling out, as shown by his bequeathing to his heirs the benefit of a slave: it would not be permitted. It is possible that Ahmad's words in the transmission of the Jama'ah be carried to a waqf upon all the heirs, in accordance with the hadith of Umar and the argument mentioned.

Chapter: if he placed his house in waqf, it coming out of the third, for his son and daughter in halves, in mortal illness: upon the transmission of the Jama'ah the waqf is valid and binding, for since it was permitted him to single out the daughter with the waqf of the whole house, half of it is more fitting. Upon the transmission we upheld: if the son approves, it is permitted; if he does not approve, the waqf is void in what exceeds the daughter's share, which is the sixth, returning as ownership to the son: the half remains his as a waqf and the sixth as free ownership, and the third belongs to the daughter entirely as a waqf. It is possible that the waqf be void in half of what was placed in waqf upon the daughter, which is the quarter, three quarters of the house remaining a waqf: half for the son and a quarter for the daughter, the quarter in which the waqf was void being divided between them in thirds: two thirds for the son and a third for the daughter.

The question divides into twelve shares: for the son six shares as a waqf and two shares as ownership; for the daughter three shares as a waqf and one share as ownership. If he placed it in waqf for his son and wife in halves, it coming out of the third, and the son refused: the waqf is valid upon the son in half of the house and upon the woman in its eighth, and the son may annul the waqf in three eighths of the house, which return to him as ownership upon the first view; upon the second view, the waqf upon the son is valid in the half, which is four quarters of his share, his share returning to him as ownership, the waqf being valid in four quarters of the woman's eighth and the rest becoming her ownership. Multiply seven by eight: that makes fifty-six: for the son twenty-eight shares as waqf and twenty-one as ownership, for the woman four shares as waqf and three as ownership: thus the companions of ash-Shafi'i mentioned it.

As for the house being the whole of his ownership and his placing all of it in waqf: upon what we chose, its ruling is that of the property coming out of the third, for the heir in the whole of the property is like the stranger in what exceeds the third; upon what the Jama'ah reported, the waqf binds in the third without the heirs' choice, and in the excess both may annul the waqf, the son having the annulment of the equalization. If he chose the annulment of the equalization without the annulment of the waqf, two views: the first, the waqf is void in the ninth and returns to him as ownership: the half remains his as a waqf and the ninth as ownership, and the daughter has the sixth and the two ninths as a waqf, for the son only acquired the annulment in what is his, not what belongs to another. The second view: he may annul the waqf in the sixth: the half remains his as a waqf and the ninth as ownership, and the daughter has the third as a waqf and half of the ninth as ownership, so that the daughter not exceed the son in the waqf.

The question divides into eighteen shares in this view: for the son nine shares as waqf and two shares as ownership; for the daughter six shares as waqf and one share as ownership. Abu al-Khattab said: he may annul the waqf in the whole quarter: the half remains his as a waqf and the sixth as ownership, and the daughter has the quarter as a waqf and half of the sixth as ownership, as if the house came out of the third: the question divides into twelve shares (Al-Mughni, 5/366-368 ; Ash-Sharh al-Kabir, 6/275-276 ; Kashshaf al-Qina', 4/376 ; Ar-Rawd al-Murbi', 2/169 ; Matalib Uli an-Nuha, 4/403).

The Waqf of the Indebted Sick Person

The Hanafis say: the sick person, when indebted, falls into two cases: either the debt does not engulf his property, or it engulfs it. If the debt does not engulf his property, the waqf is permitted in the third of what remains after the debt if he has heirs, otherwise in the whole. If the debt engulfs his property, the property is sold and the waqf broken. Ibn Abidin (may Allah have mercy on him) reports in the margin of Al-Fawakih ad-Durriyyah: the debt engulfing the legacy prevents the execution of manumission, of the setting apart, of the bequest of property and of favoritism in contracts of exchange in mortal illness, except by the creditors' approval; it likewise prevents the transfer of ownership to the heirs and their disposals, except by approval (Ibn Abidin with Ad-Durr al-Mukhtar, 4/397-398 ; Al-Bahr ar-Ra'iq, 5/203 ; Majma' al-Anhar, 2/595).

In Al-Ishaf: if a debt engulfing his property weighs upon him, his waqf is broken and the property sold for the debt, as if he had bought land, placed it in waqf, then a preemptor appeared: he may annul the waqf and take it by preemption. If the debt does not engulf his property, the waqf is permitted in the third of what remains after the debt if he has heirs, otherwise in the whole. If the judge sold it at its value for the debt, then property appeared for him or came to him, the land leaving its third: its sale is not annulled, and land in substitution for it is bought; if he sold it for more than its value, a substitute is bought with the price.

Shaykh al-islam Ibn Taymiyyah (may Allah have mercy on him) said: whoever placed an independent waqf, then a debt appeared for him whose payment is possible only by selling something of the waqf, and he is in mortal illness: it is sold by consensus of the scholars. If the waqf occurred in health, is it sold to pay the debt? There is disagreement in Ahmad's madhhab and others, and its prevention is strong; the apparent of Abu l-'Abbas' words (is so) even if the debt arises after the waqf, and this is not stronger than tadbir, whereas it is established that the Prophet (peace and blessings be upon him) sold over the mudabbir in debt, and Allah knows best.

As for one who placed a waqf while an engulfing debt weighed upon him, and a ruler validated it, without touching its validity and without the beneficiaries knowing, then the endower died, the property returned to the beneficiaries, the creditors claiming their debt, and the case brought before a ruler who holds this waqf void (for the condition of managing it for himself, his engulfing his liability with the debt, and his not having removed it from his hand): is breaking it permitted?

It is said: the ruler's judgment upon established proof, the justice necessitated by it and the obligation it requires do not prevent the second ruler, who holds that the endower's liability was occupied by debts at the time of the waqf, from ruling by his madhhab on the nullity of this waqf and directing the property to the deserving creditors for payment; for the first ruler, towards these litigants and their deputies, does not include in his judgment the execution of this disputed verdict, and his judgment, encountering a disputed matter he neither knew nor judged, may be broken (Al-Fatawa al-Kubra, 4/511-512 ; Al-Ikhtiyarat al-Fiqhiyyah, p. 157).

The Waqf of the Dhimmi (Protected Non-Muslim)

The jurists of the four schools agreed that the dhimmi's waqf is valid, in general, like the Muslim's, and that Islam is not a condition of the waqf's validity: if a dhimmi places in waqf what it is permissible for him to place in waqf, his waqf is valid like the Muslim's, with the details per school that follow. On this principle, the waqf of the dhimmi is not permitted for temples, churches and fire-houses, this being a place of agreement among the scholars, for the Muslim's waqf upon these things is not permitted either, as will be detailed in the question of the waqf for a path of disobedience, such as churches and temples.

The Hanafis say: Islam is not a condition of the waqf's validity: if the dhimmi placed property in waqf for his child, his descendants, then for the needy, if he generalized, directing it to every poor person, Muslim or unbeliever, is permitted; if he reserved in his waqf the needy of the people of the covenant, that is permitted and his condition followed, like the Mu'tazili who reserves the adherents of i'tizal: it is distributed among the Jews, the Christians and the Magians among them, unless he reserved one class specifically. If the trustee delivers to other than them, he is liable if we hold that all unbelief is one religion. If he placed property in waqf for his child and his descendants, then for the poor, upon condition that his child who embraces Islam leaves the alms, his condition binds too, like the Mu'tazili's condition that whoever becomes Sunni is excluded: and this is not of the kind of stipulating disobedience, for alms to the non-belligerent unbeliever is nearness.

Likewise if he says "whoever departs from Christianity leaves," it is taken into account, as al-Khassaf stated explicitly. Ibn al-Humam (may Allah have mercy on him) said: we know of none of the school's people who criticized it but a latecomer called at-Turtusi, who attacked it by saying he made unbelief a cause of entitlement and Islam a cause of deprivation: this belongs to remoteness from fiqh, for the endower's conditions are respected so long as they do not contradict the Law, and the endower is an owner: he may place his property where he wishes so long as it is not disobedience, and he may reserve a class of the poor over another even if the ruling is nearness in all of them; and there is no doubt that alms to the people of the covenant is nearness, to the point that the zakat of breaking the fast and the expiations may be given to them in our view: how then should his condition for one class over another of the poor not be respected?

Do you not see that were he to place a waqf for the poor of the people of the covenant without mentioning others, the Muslim poor would be prevented from it? And were the trustee to deliver to the Muslims, would he not be liable? This is like it: Islam is not a cause of deprivation; deprivation is rather for the cause of acquiring this property not being realized, and the cause is the endower, an owner, giving. The condition of his waqf's validity is that it be a nearness in our view and theirs: if he placed property in waqf for a temple and it fell into ruin, then for the poor, it is not valid and is inheritance from him, for it is not a nearness in our view, like the waqf for the pilgrimage or the umrah, which is not one in theirs.

Unlike his placing property in waqf for the mosque of Bayt al-Maqdis: valid, for it is a nearness in our view and theirs. In Al-Hawi: if the Magian placed property in waqf for the fire-house, or the Jew and the Christian for the temple and the church, it is void in the era of Islam; what of that occurred in the days of ignorance is disputed, and the most correct view is that once he has entered the era of the covenant of protection, it is not treated (Sharh Fath al-Qadir, 6/200 ; Al-Bahr ar-Ra'iq, 5/204-205 ; Al-Muhit al-Burhani, 6/134 ; Majma' al-Anhar, 2/568 ; Ibn Abidin, 4/341 ; Tanqih al-Fatawa al-Hamidiyyah, 2/235).

The Malikis say: the waqf of the dhimmi is valid in what is not disobedience, like the Muslim; what contains disobedience is void, as if the dhimmi placed a waqf for the church absolutely, whether for its worship or its repair, for the madhhab addressed them by the branches of the Law in the fundamental. Ibn Rushd has a second view, containing a detail: in sum, the unbeliever's waqf for the church's worship is void, for it is disobedience; as for the waqf for its repair, or for the wounded and sick in it, the waqf is valid and acted upon. If the endower or the bishop wishes to sell it and they litigate before us, content with our judgment, the judge may judge between them by Islam's judgment: the validity of the habous and the prevention of its sale. Iyad has a third view: the waqf for the church absolutely is valid without being binding, whether they attested that waqf or not, whether it left the endower's hand or not, the endower having the right of return in it whenever he wishes.

The school says: the waqf of the unbeliever, even a dhimmi, upon a mosque of the Muslims' mosques, upon a ribat, or upon a religious nearness of any kind, is void; wherefore Imam Malik returned to the Christian woman the dinar she had sent to the Ka'bah (Ash-Sharh al-Kabir with the hashiyah of ad-Dasuqi, 5/459-460 ; Sharh Mukhtasar Khalil, 7/82 ; Hashiyat as-Sawi on Ash-Sharh as-Saghir, 9/162 ; Tahbir al-Mukhtasar, 4/644).

The Shafi'is say: the waqf of the dhimmi is valid upon condition that it not be for a path of disobedience: the maintenance of churches and the like of the unbelievers' places of worship, their seclusion, their lamps, their servants, the books of the Torah and the Gospel, or weapons for highwaymen: void without disagreement, for it is aid to disobedience, and the waqf was legislated for nearness: the two are contradictory; erecting the churches or restoring them is likewise, whether they were prevented from it or not, and likewise their seclusion, their saddles, and the books of the Torah and the Gospel, for they falsified and changed them: no difference between the endower being Muslim or dhimmi.

Ash-Shirbini (may Allah have mercy on him) said: Ibn ar-Rif'ah's restriction, annulling the waqf upon restoration, is not taken into account: as-Subki said it is a gross illusion, by their agreement on the nullity of the waqf for churches even if ancient before the mission: if we do not validate the waqf upon them, their lamps or their seclusion, how should we validate it upon their restoration? And when we hold the dhimmi's waqf for churches void and they do not litigate before us, we do not treat them, so long as they are not prevented from their apparent worship; if they litigate before us we annul it, even if their judge executed it; as for what they placed in waqf before the mission upon their ancient churches, we do not annul it: we confirm it as we confirm them. As for the maintenance of churches that are not places of worship, like churches serving as lodging for passers-by, the waqf upon them is valid, as az-Zarkashi, Ibn ar-Rif'ah and others said, like the bequest.

Imam as-Subki (may Allah have mercy on him) said: building a church is a sin by consensus, and likewise restoring it; the jurists say: whoever bequeaths the building of a church, the bequest is void, for building a church is disobedience, and likewise its restoration, with no difference between the testator being Muslim or unbeliever; likewise whoever placed a waqf upon a church: the waqf is void, the endower being Muslim or unbeliever; its building, rebuilding and restoration are disobedience, whether the doer is Muslim or unbeliever: this is the Prophet's Law (peace and blessings be upon him), binding upon every accountable person among the Muslims and the unbelievers (Mughni al-Muhtaj, 3/459 ; Nihayat al-Muhtaj, 5/422-423 ; An-Najm al-Wahaj, 5/469 ; Ad-Dibaj, 2/519 ; Fatawa as-Subki, 2/369-370).

The Hanbalis say: the waqf of the dhimmi is valid like the Muslim's, upon condition that it not be disobedience; it is not valid for disobedience, like the fire-house, the temples, the churches and the books of the Torah and the Gospel, for that is disobedience: these places were built for unbelief, and these books were changed and abrogated. Wherefore the Prophet (peace and blessings be upon him) grew angry when he saw with Umar a sheet containing something of the Torah and said:

Do you doubt, O son of al-Khattab? Have I not brought you (the Qur'an) white and pure? Were Musa, my brother, alive, he would bear it only by following me.

Reported as attributed to the Prophet by another chain

Had it not been disobedience, he would not have grown angry with him; and the waqf for the temple's lamps, its bedding, the one serving or maintaining it, is like the waqf upon it, for it is intended for its veneration, whether the endower be Muslim or dhimmi.

Ibn Qudamah (may Allah have mercy on him) said: Ahmad said, concerning Christians who placed many estates in waqf for the Torah, then died leaving Christian children who became Muslims, the estates remaining in the Christians' hands: the Muslims are entitled to take them, and the Muslims owe them aid in extracting them from their hands: this is ash-Shafi'i's madhhab and we know of no disagreement in it, for what is not valid of the Muslim as waqf is not valid of the dhimmi, like the waqf for other than a determined beneficiary. If it is said: you said that when the People of the Book conclude corrupt contracts, exchange them, then become Muslims and litigate before us, we do not break what they did: how did you permit the return upon what they placed in waqf for their churches? We say: the waqf is not a contract of exchange, but a removal of ownership in the beneficiary for nearness to Allah: it not having taken place validly, ownership therefore did not leave the property, which remains as it was, like manumission (Al-Mughni, 5/376).

Al-Bahuti (may Allah have mercy on him) said: the waqf upon churches, fire-houses, temples, monasteries, houses and their needs, such as their lamps, their bedding, their fuel and their keeper, is not valid, for it is aid to disobedience; and if the waqf upon what was mentioned is of a dhimmi, it is not valid, for what was said: what is not valid of the Muslim is not valid of the dhimmi. In Ahkam Ahl adh-Dhimmah: the imam may take possession of every waqf placed upon a church, a fire-house or a temple, and place it upon a way of nearnesses, meaning when the endower's heirs are not known; otherwise the heirs take it, as has passed. The waqf is even valid upon the one lodging in the churches and houses and the like, of the passer-by and traveler only, for the waqf is upon them, not upon the spot, alms upon them being permitted; and the waqf upon the one passing by or traveling only is valid. The waqf upon the Jews and Christians is not valid, nor the waqf upon the writing of the Torah and the Gospel, even from a dhimmi, by reason of the alteration and falsification.

It was reported by another way that the Prophet (peace and blessings be upon him) grew angry when he saw with Umar a sheet containing something of the Torah; books of innovation, the bequest and the testament follow the ruling of the waqf mentioned: valid upon what the waqf is valid upon, void upon what it is not. Al-Mardawi (may Allah have mercy on him) said: his words "the waqf is not valid upon the churches and fire-houses," and likewise the temples: such is the madhhab, followed by the companions, stated explicitly for the churches and the temples. In Al-Mujaz, a transmission validates the waqf upon the church and temple as upon the passer-by through them. Of the benefits: the dhimmi, upon the sound view of the madhhab, is like the Muslim in non-validity: the dhimmi's waqf upon the churches, temples and fire-houses is not valid (Kashshaf al-Qina', 4/300 ; Matalib Uli an-Nuha, 4/283 ; Al-Insaf, 7/15).