Islamic Fiqh > Endowments (waqf) and property > Conditions for the validity of a waqf > The conditions laid down by the waqifs
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Updated on 27 September 2026 at 3:52 AM
This part belongs to the section: All parts.
The waqf is an act of drawing near to Allah among those that belong to choice, by which the servant draws near to Allah: he places it upon whom he wills and in the manner he chooses. It is permitted for him to lay down, at the inception of the waqf, whatever conditions he wills, provided those conditions do not contravene the rulings of the Islamic sharia nor conflict with the purport of the waqf. It is obligatory to defer to every condition of the waqif and to act upon it, and it is not permitted to contravene it so long as it does not contradict a text nor the purport of the waqf: this is a point of agreement among the jurists.
The Hanafis say: the waqif's conditions are taken into account if they do not contravene the sharia; he is the owner: he may place his wealth wherever he wills, so long as it is not a sin, and he may single out a category among the poor even though the allocation to all of them would be a qurba (Ibn Abidin 4/343).
The Malikis say: the waqif's condition is followed in an obligatory manner if it is permitted; the permitted designates what is the opposite of the forbidden and encompasses the disliked (makruh). If it is not permitted, whether it is a sin or a condition conflicting with the interest, it is not followed. As for the disputed case, such as the condition of excluding his daughters from his waqf if they marry, one cannot venture upon it; if it occurs, it takes effect (al-Sharh al-Kabir with al-Dasuqi's hashiya 5/475; Mawahib al-Jalil 7/493; al-Taj wa-l-Iklil 4/578; Sharh Mukhtasar Khalil 7/93; Sharh Miyara 2/234; al-Fawa'id al-Dawani 2/161; Tahrir al-Mukhtasar 4/654; al-Sawi 9/167).
The Shafi'is say: the waqif's conditions are followed outside the state of necessity; observing them is obligatory for the fulfillment of his purpose which the Lawgiver enabled, so long as there is nothing in them conflicting with the waqf; if the waqif expresses in the formula of his waqf a conjunction implying association or ordering, one acts upon it as upon his other conditions not contrary to the sharia, because of the interest that returns to the waqif. What contravenes the sharia, such as the condition of celibacy for the residents of the school, is not valid, for it is contrary to the Book, the sunna and the consensus, that is, contrary to the incitement to marriage and the disparagement of celibacy (Mughni al-Muhtaj 3/469; I'anat al-Talibin 3/319).
The Hanbalis say: observing the waqif's conditions is obligatory and acting upon them required, for 'Umar (may Allah be pleased with him) endowed and laid down conditions therein; if following his condition were not obligatory, his condition would have no benefit, so long as it does not lead to missing the intended purpose or is not disliked or forbidden.
It is not permitted to preserve some conditions after the loss of their purpose. If the waqf needs a cultivation that is only possible by extending the conditioned duration with another duration, it is permitted to extend it to the measure of the need alone: for example if the cultivation requires a loan of dirhams and no one lends except to whoever rents for longer, or if its restoration after ruin is obtained through the rent and is only possible with that extension. For the cultivation of the waqf is obligatory, and that without which the obligatory cannot be fulfilled must be done: it is an obligation of legal order.
One refers to the waqif's condition in his division among the beneficiaries, in advancing and delaying, joining, ordering, equalizing and preferring, excluding whom he wills by a description and including by a description, in the nazir he appoints, the expenses and the other modalities; likewise if he conditions the non-rental or fixes a duration.
Al-Mardawi said: a notice: the apparent of the words of the compiler and others is that the permitted condition from which no intention of qurba appears must be taken into account in the waqif's words. Al-Harithi said: it is the apparent of the companions' words, and the well-known in the madhhab is obligatoriness; he says: it is the sound position. In "al-Fa'iq": our shaykh, I mean shaykh Taqi al-Din (may Allah have mercy on him), said: from the fact that the waqf is a qurba follows the conditioning of the qurba in the origin: the permitted conditions are obligatory.
In "al-Furu'": our shaykh, I mean shaykh Taqi al-Din, chose the obligatoriness of acting upon a recommended condition in particular, and the author of "al-Madhhab" mentioned it, for it does not benefit him and he is excused: spending one's wealth therein is frivolity (safh) and is not permitted. Al-Harithi says: among the late companions, some said that conditioning it is not valid according to the apparent of the madhhab, and gave the reason; he says: this has more force than the view of the qurba in the origin of the purpose, which is the apparent of the madhhab; and he is the one meant by "in the apparent of the madhhab", in my view; the support is found in Ahmad's text, whose text is mentioned in the wasiyya. He meant by "the late companions" shaykh Taqi al-Din, who lived in his time, and the words of the author of "al-Furu'" allude to that. Shaykh Taqi al-Din also said: the one whose share the waqif fixed may take more if he is entitled to it according to the sharia.
He also says: the disliked condition is void by consensus (al-Insaf 4/53-55; al-Furu' 4/454; Sharh Muntaha al-Iradat 4/352, 356; Kashshaf al-Qina' 4/381-382; al-Rawd al-Murbi' 2/174; Matalib Uli al-Nuha 4/316, 320; Manar al-Sabil 2/331-332).
Shaykh al-Islam Ibn Taymiyya said: the conditions are only required to be kept if that does not lead to missing the legal purpose, which is either obligatory or recommended (the continuation comes in the following sheets).
In "al-Durr al-Mukhtar": "the waqif's condition is like the Lawgiver's text", that is, in the concept, the signification and the obligatoriness of acting upon it: he is bound to perform his function or leave it to whoever performs it, otherwise he is at fault, especially when abandoning it entails the paralysis of the whole. Ibn Abidin elaborated this formula: in "al-Khayriyya" it is explicitly stated that the consideration of the conditions applies to what actually occurs, not to what is written in the waqf deed; if evidence is established for what is not found in the waqf's writing, one acts upon it without any doubt, for the writing is only a trace without value, foreign to the legal proofs.
Question: clarifying the concept of contrariety. The formula "that is, in the concept and the signification" is thus expressed in "al-Ashbah"; what is found in "al-Bahr" from the notable Qasim is: in the meaning and the signification, which is more fitting; for the mafhum is not taken into account in our view in the texts, and what is meant by it is the concept by contrariety, called the proof of the discourse (dalil al-khitab), which divides into categories: the concept of the description, of the condition, of the limit, of the number and of the title, that is, the concrete noun such as "garment".
The fact that it is not taken into account in the texts means that a statement like "give to the knowing one", "give to Zayd if he asks you", "give him until he is satisfied", "give him ten" or "give him a garment" does not indicate the negation of the ruling for the case contrary to the letter, in the sense that giving to the ignorant one would not be forbidden; it is rather left in silence, remaining upon the original status of absence, until a proof comes commanding to give to him or forbidding it; the same applies to the other categories, and the complete detail is found in the books of the foundations (usul).
Question: the mafhum is taken into account in the custom of the people, the transactions and the rational matters. Ibn Amir al-Hajj said in his commentary of "al-Tahrir" on al-Khabbazi's hashiya, from Shams al-A'imma al-Kurdi: the specification of a thing by mention does not indicate the negation of the ruling for what exceeds it in the discourses of the Lawgiver; but in what people commonly understand and their custom, in the transactions and the rational matters, it does indicate it. It is said in the commentary of "al-Tahrir": the later generations spread it, and according to "Khizanat al-Akm" and "al-Khaniyya", if someone says "you owe me nothing more than a hundred dirhams", it counts as an acknowledgment of the hundred.
It is thus known that the later generations admit the mafhum outside the legal texts; and where the mafhum is admitted in what people commonly understand and their custom, its consideration in the waqif's words is obligatory, for he speaks according to his custom. It is in this sense that the notable Qasim expressed himself, and Abu Abdallah al-Dimashqi explicitly stated it in his book of the waqf from his shaykh, Shaykh al-Islam: the jurists' statement "its texts are like the Lawgiver's text" means in the meaning and the signification, not in the obligatoriness of acting; the verification is that the waqif's wording, like that of the testator, the contractor, the one making a vow and every contracting party, is interpreted according to his habit of discourse and his language, whether or not it coincides with the language of the Arabs and the language of the sharia.
The notable Qasim says: if the meaning is that, what belongs, in the waqif's wording, to the explicit that admits neither specification nor interpretation is applied; likewise what belongs to the apparent; what admits a meaning and carries a connected indication is interpreted by it; what is equivocal (mushtarak) is not applied, for it has no generality in our view and the mujtahid has not considered it so as to prefer one of its significations; likewise what belongs to the summarized (mujmal) if the waqif has died; if he is alive, one defers to his clarification. Such is the substance of what he conveyed.
The words "and the obligatoriness of acting upon it" contradict what was reported a moment ago, although "al-Bahr" also transmitted it; and he adds: on this basis, if the holder of the function neglects to perform it in some of the conditioned times, he is not at fault before Allah: he at most loses the stipend. Yet in "al-Ashbah" this statement is affirmed firmly, strengthened in "al-Nahr", and attributed in "Qada' al-Bahr" to "Sharh al-Majma'". Ibn Abidin answers: no contradiction appears to me; the absence of obligatoriness of acting upon the condition in itself is demonstrated by the fact that if he abandoned the function entirely and another performed it, he would not be at fault, without any doubt; and the obligatoriness of acting upon it is taken into account regarding the lawfulness of receiving the stipend: if he does not act upon it and receives the stipend, he is at fault for having received it without right (Ibn Abidin 4/433-434).
He says further: question: when the waqif mentions two contradictory conditions, one acts upon the second. In "al-Is'af": if he writes at the beginning of the waqf deed "it is neither sold, nor given, nor alienated", then says at the end "on condition that so-and-so may sell it and substitute its price with what would be a waqf in its place", the sale is permitted and the second abrogates the first; if he reverses, saying first "on condition that so-and-so may sell it and dispose of it" then ending with "it is neither sold nor given", the sale is not permitted, for he reverts to what he had conditioned first: such is the case when the two conditions contradict each other.
But if they do not contradict each other and it is possible to act upon both, the obligation is established, as al-Biri mentioned in the ninth principle of "al-Ashbah"; and what they mention thereof falls under their statement "the waqif's condition is like the Lawgiver's text": when two texts contradict each other, one acts upon the later (Ibn Abidin 4/444).
Ibn Nujaym says: the discussion now bears upon the waqifs' conditions: they conveyed here that not every condition must be followed, and that his condition that the judge not remove him is a void condition contrary to the sharia. It is thus known that their statement is not general. The notable Qasim says in his fatawa: the community agreed that among the waqifs' conditions there are valid ones that are applied, and others that are not.
Abu Abdallah al-Dimashqi explicitly stated it in his book of the waqf from his shaykh Shaykh al-Islam, that is, Ibn Taymiyya the Hanbali: the jurists' statement "its texts are like the Lawgiver's text" means in the meaning and the signification, not in the obligatoriness of acting; the verification is that the waqif's wording, like that of the testator, the contractor, the one making a vow and every contracting party, is interpreted according to his habit of discourse and his language, whether or not it coincides with the language of the Arabs and that of the sharia; there is no disagreement that whoever endows for a prayer, a fast, a reading or a non-lawful expedition and the like: it is not valid.
The notable Qasim then repeats his statement on the explicit that admits neither specification nor interpretation, the apparent, what carries a connected indication, the equivocal and the summarized if the waqif dies; then Ibn Abidin concludes: if the holder of the function neglects to perform it in some of the conditioned times, he is not at fault before Allah, and at most loses the stipend (al-Bahr al-Ra'iq 5/265-266).
Shaykh al-Islam Ibn Taymiyya said: the origin is that everything conditioned as an action in the endowments endowed upon actions must be a qurba, either obligatory or recommended; conditioning a forbidden action is not valid by the unanimous agreement of the Muslims, and likewise the disliked action, and likewise the permitted action according to the sound position. The Muslims agreed that the waqif's conditions divide into valid and void as with the other contracts. Whoever says "the waqif's conditions are like the Lawgiver's texts" means that they are like the texts in signifying the waqif's intent, not in the obligatoriness of acting upon them: the waqif's intent is derived from his conditioned words as the Lawgiver's intent is derived from his words; just as the specific and the general, the absolute and the restricted, the shared, are known from the Lawgiver's words, so it is known in the waqf from the waqif's words.
The verification is that the waqif's wording is like that of the contracting party and the testator: the statement of every contracting party is interpreted according to his habit of discourse and his language, whether it coincides with pure Arabic, derived Arabic, corrupted Arabic or is non-Arabic, and whether or not it coincides with the Lawgiver's language; for the aim of words is their signification of the speakers' intent: we refer, in order to know the Lawgiver's word, to his language, his custom and his habit; the same applies to the discourse of every nation and every people. When they converse in a sale, a rental, a waqf, a wasiyya, a vow or other, we refer, in order to know their intent, to their habit of discourse and what is connected with it.
As for making the waqif's texts, or the texts of any other contracting party, like the Lawgiver's texts in the obligatoriness of acting upon them, that is disbelief by the unanimous agreement of the Muslims, for no one among mankind is obeyed in everything he commands after the Messenger of Allah; the conditions that coincide with the Book of Allah are valid, those that contradict it are void.
This ruling is established in the sale, the rental, the waqf and the rest by the imams' agreement, whether the Lawgiver's wording encompasses it or not. When the waqif's conditions divide into valid and void by consensus, if he conditions a forbidden act, it is apparently void, for there is no obedience to the creature in the disobedience to the Creator; if he conditions a permitted without qurba, it is also void, for he conditioned a condition with no benefit for himself nor for the beneficiary: he himself only benefits from the aid to righteousness and piety.
As for spending one's wealth in a permitted matter, if he does so during his lifetime, such as buying or renting, it is permitted, for he benefits from the permitted during his life. As for the waqif and the testator, they do not benefit from what the beneficiary does of the permitted matters in this world, nor are they rewarded for having spent their wealth therein in the hereafter; if he spent his wealth therein in pure loss and frivolity, there is no proof therein for the use of the wealth; how then if he is bound to a permitted matter without purpose? He benefits from it neither in this world nor in the hereafter, and he remains a spender of wealth in vanity, exploited, chastised, consuming wealth in vanity.
Since the Lawgiver said:
"There is no race except with a hoof, a sole or a blade"
Reported by Abu Dawud
without permitting to spend the reward (ju'l) on what does not serve the expedition, even if it is a permitted matter, although there may be benefit in it, such as wrestling and foot racing, how could one spend the perpetual compensation on an action without benefit? Especially as the waqf is a perpetual habas: how could one endow a wealth permanently for an action that benefits neither him nor the worker? It results in a harm for the heirs and the rest of mankind, by endowing the wealth upon them with no benefit realized for anyone, and a harm for those who receive it, employed in an action that holds them back from their religious and worldly interests: no benefit is realized for him nor for them (Majmu' al-Fatawa 31/48-50).
Ibn al-Qayyim said: then, of the wonder of wonders, is the statement of whoever says "the waqif's conditions are like the Lawgiver's texts"; we dissociate ourselves before Allah from this statement and ask forgiveness for its author; we never prefer the Lawgiver's texts to anything else. Even if one has a good opinion of those who said this statement, their words are interpreted as follows: like the texts in the signification, the specification of the general by the specific, the carrying of the absolute to the restricted, and the consideration of the mafhum as that of the letter; but that they be like his texts in the obligatoriness of following and the fault of whoever fails in them, that is not thought of anyone having any connection with knowledge. If the governor's judgment is not like the Lawgiver's text, but what contradicts the judgment of Allah and His Messenger is revoked from it, the waqif's condition, if it is thus, deserves all the more the revocation and the annulment (I'lam al-Muwaqqi'in 4/397).
Ibn al-Qayyim says before that: you have made the fulfillment of the waqif's condition contrary to the Lawgiver's purpose, such as leaving marriage, or the condition of the prayer in the conditioned place, even alone and with the Great Mosque and the congregation of the Muslims beside him, whereas the Lawgiver annulled this condition in the vow, which is a pure qurba and an obedience: no place fixed by the one making a vow for praying is binding, except the three mosques. Even if the one making a vow conditioned the determination in his vow, the Lawgiver annulled it in favor of what is superior to it or equal to it; how then could the waqif's condition, while another is more excellent and more beloved to Allah and His Messenger, be binding to the point of having to be fulfilled? The determination of the prayer in a specific place that the Lawgiver did not recommend is not a qurba; what is not a qurba does not require fulfillment in the vow and is not valid as a condition in the waqf.
If you say: the waqif did not remove his wealth except upon a determined way, so following what he determined of the waqf is obligatory; the one making a vow intended the qurba and the qurubs are equivalent in the mosques other than the three, so the determination of one of them is vain; we answer: this very difference obliges you to annul the waqifs' conditions that have no qurba and to take into account those that do. For the waqif's purpose in his waqf is to draw near to Allah, and his drawing near by his waqf is like by his vow; the sensible man only spends his wealth for an immediate or deferred interest; during his life he may spend his wealth on permitted or other purposes, and on what draws him near to Allah; after his death he only spends it on what he believes draws him near to Allah; if it were said to him "this way does not draw near to Allah, or rather another is more excellent, more beloved to Allah and of greater reward", he would hasten to it.
No doubt, if it is said to the sensible man "if you spend your wealth against this condition you obtain one reward, if you leave it you obtain two", he chooses the greater reward; how then if it is said to him "there is no reward in this at all"? How then if it is said: "it contradicts the Lawgiver's purpose, opposes it, Allah and His Messenger disapprove of it"? It is like the condition of celibacy and leaving marriage: a condition of leaving an obligation or a sunna superior to the supererogatory prayer and its fast, or a sunna lesser than the prayer and the fast; how could the fulfillment of the condition of leaving the obligations and the sunnas be obligatory, by following the waqif's condition, while abandoning the condition of Allah and His Messenger, whose judgment is more worthy and whose condition is firmer?
This is clarified by this: if he conditions in his waqf that it be for the rich to the exclusion of the poor, that would be a void condition according to the majority of the jurists. Abu al-Ma'ali al-Juwayni, the imam of the two sanctuaries, said: most of our companions were decisive on its nullity, even though wealth is a permitted description and a grace of Allah, and its holder, if grateful, is superior to the enduring poor according to a large number of jurists and Sufis; how could this condition be annulled while the condition of monastic renunciation in Islam would be valid, whereas the Prophet annulled it by his saying:
"There is no monasticism in Islam"
Reported by Ahmad
The one who conditions celibacy only intended that its leaving is superior and more beloved to Allah: he intended that the beneficiary of the waqf devote himself by leaving it; that is precisely what the Prophet dissociated himself from by saying:
"Whoever shuns my sunna is not of me"
Reported by Boukhari and Mouslim
And the intent of those companions was exactly the same as that of these waqifs: they intended to discipline their souls to worship by leaving the marriage that occupied them, in order to draw near to Allah by leaving it; the Prophet said about them what he said and informed that whoever shuns his sunna is not of him; that is utterly clear. How could the constraint to abandon something about which the Prophet informed that whoever shuns it is not of him be permissible? That is of what the sharia cannot admit in any manner.
The sound position, which the sharia does not permit to overstep, is to present the waqifs' condition to the Book of Allah and to His condition: what coincides with His Book and His condition is valid, what contradicts them is a void and revoked condition, even if it were a hundred conditions. That is not more serious than the revocation of the governor's judgment contradicting the judgment of Allah and His Messenger, nor than the revocation of the mufti's fatwa; Allah explicitly prescribed the revocation of the wasiyya of the deviant and the sinner in his wasiyya, whereas the wasiyya is valid outside the qurba and is broader than the waqf; and the holder of the sharia explicitly prescribed the revocation of every deed upon which there is no command from him. This condition is therefore revoked by the text of the Messenger of Allah: it is not permitted to anyone to accept it, take it into account or declare it valid.
How then do they oblige to the fulfillment of the conditions for which the waqif removed his wealth for whoever performs them, even if they are without qurba, while the waqifs have no valid purpose in them except what draws them near to Allah; and while they do not oblige to the fulfillment of the conditions for which the woman spent her intimacy with the husband on condition that he fulfill her thereby, whereas she has in that the soundest purpose and the firmest aim, and she is more worthy than every condition to be fulfilled by the text of the Messenger of Allah? Is that anything but a departure from pure analogy and the sunna? (I'lam al-Muwaqqi'in 4/397).
Taqi al-Din al-Subki said: the jurists say "the waqif's conditions are like the Lawgiver's texts"; and I say, by the way of courtesy (adab): the waqif's conditions are part of the Lawgiver's texts, according to the Prophet's saying:
"The believers are bound by their conditions"
Reported by Tirmidhi
When the contrariety to the text requires the revocation of the judgment, the contrariety to the waqif's condition requires the revocation of the judgment (Fatawa al-Subki 2/13).
There is no disagreement among the jurists of the schools that not every condition of the waqif must be followed: among the waqif's conditions there is the valid condition that must be applied, and among them the void condition that must not be applied; not everything the waqif validly conditions must be followed. The notable Qasim said: the community agreed that among the waqifs' conditions there are valid ones that are applied, and others that are not (al-Bahr al-Ra'iq 5/265). Shaykh al-Islam Ibn Taymiyya said: the waqif's conditions divide into valid and void by agreement; if he conditions a forbidden act, it is apparently void, for there is no obedience to the creature in the disobedience to the Creator (Majmu' al-Fatawa 31/49).
Imam Ibn al-Qayyim (may Allah have mercy on him) divided the waqifs' conditions into four categories:
Ibn al-Qayyim says: the first three categories have neither prohibition nor consideration; the fourth is the followed condition worthy of consideration. The Prophet annulled all these conditions by his saying:
"Whoever performs an action that is not in accordance with our order will have it rejected"
Reported by Mouslim (no. 1718)
What the Messenger of Allah rejected, it is not permitted to anyone to take into account, to bind to, or to execute. Whoever grasps the details of this statement, which is among the requirements of faith, frees himself from burdens in this world, and from fault, punishment and the diminution of reward in the hereafter; success comes from Allah (I'lam al-Muwaqqi'in 3/97-98).
The jurists differed on the conditions to be taken into account and followed, and on those that contravene the sharia or conflict with the purport of the waqf and are not applied. These conditions divide into three categories:
These conditions differ from one school to another: between the one who validates them and the one who annuls them, and between the one who validates the waqf and annuls the condition. These are the conditions that conflict with the binding character of the waqf and its purport. Here are examples:
Conditioning the withdrawal from the waqf, or its sale, its gift or its pledge whenever he wishes. Ibn Qudama said: if he conditions selling the waqf whenever he wishes, or giving it or returning to it, neither the condition nor the waqf is valid; we know of no disagreement, for it conflicts with the purport of the waqf. It is possible that the condition is annulled and the waqf remains valid, on the model of the void conditions in the sale (al-Mughni 5/353).
The Shafi'is say: if he endows something with the option (khiyar) for himself of keeping his waqf and returning to it whenever he wishes, or conditions for another, or conditions his return in some way, such as conditioning selling it, bringing in whom he wishes and removing whom he wishes, or changing something of it by a description or an addition, the waqf is void according to the more probable opinion, like the sale and the gift, for the purport of the waqf is the binding character and the option conflicts with it: the waqf is annulled by this condition. According to the opinion opposite to the sound one: the waqf is valid and the condition annulled, like the divorce without return; and like in the hadith of the lifetime habas (al-'umra), according to which the Prophet said:
"Hold on to your wealth and do not let it perish: whoever makes a lifetime habas ('umra), it returns to its beneficiary during his life and after his death, then to his descendants"
Reported by Mouslim (no. 1625)
He made its share for the beneficiary during his life and for his heirs after his death, thereby removing the ownership from the grantor and annulling his condition. The two opinions join so long as no governor has pronounced the validity of the waqf; if he has pronounced it, the waqf is valid without disagreement and ratified (Mughni al-Muhtaj 3/467; Nihayat al-Muhtaj 5/431; al-Najm al-Wahhaj 5/487-488; al-Dibaj 2/524).
The Hanafis say: if the waqif conditions selling the waqf at whatever price pleases him, or buying a slave with its price, or selling it without increase, the waqf is annulled (al-Is'af p. 31; al-Bahr al-Ra'iq 5/239).
The condition of option (khiyar) in the waqf
The majority of the jurists, Muhammad ibn al-Hasan and Hilal among the Hanafis, the Shafi'is according to the sound position, and the Hanbalis, hold that conditioning the option in the waqf is not valid: if he endows and conditions the option, the waqf is not valid, whether the option's duration is known or unknown. Abu Yusuf said: if the period is known, the waqf and the condition are permitted as in the sale; otherwise the waqf is void. Al-Samti declared it valid absolutely and annulled the condition. Ibn Nujaym says: the apparent of "al-Khaniyya" is that if he makes his house a mosque on condition of option, the waqf is valid and the condition void without disagreement (al-Bahr al-Ra'iq 5/203-204; "Ahkam al-Waqf" by Hilal 149, 161; al-Hidaya 3/18; al-'Inaya 8/352).
Ibn Qudama says: if he conditions the option in the waqf, it is annulled; Ahmad explicitly stated it, and al-Shafi'i says the same.
Abu Yusuf, according to a transmission: the waqf is valid, for it is a transfer of benefits: the option is permitted therein as in the rental. Our answer: it is a condition that conflicts with the purport of the contract, not valid, as if he conditioned selling it whenever he wishes, for it is the withdrawal of an ownership for Allah; conditioning the option therein is therefore not valid, like the manumission; and because it is not an exchange contract: the option is therefore not valid therein, like the gift. It differs from the rental, which is an exchange contract and a kind of sale; for the option entering the contract prevents the establishment of its ruling before the expiry of the option or the disposal, whereas here, if the option were established, it would be established along with the ruling of the waqf and would not prevent the disposal: the two differ (al-Mughni 5/353).
The Malikis according to the relied-upon position, the Shafi'is according to the opinion opposite to the sound one, and al-Samti among the Hanafis, hold that if he conditions the option in the waqf, the waqf is valid and the condition annulled, like the divorce without return, and like in the hadith of the lifetime habas cited above: the Prophet made its share for the beneficiary during his life and for his heirs after his death, removing the ownership from the grantor and annulling his condition. Ibn Abd al-Salam, among the Malikis, says: the waqf is valid and his condition is fulfilled (al-Dasuqi's hashiya with al-Sharh al-Kabir 5/455; Mughni al-Muhtaj 3/467; Nihayat al-Muhtaj 5/431; al-Najm al-Wahhaj 5/487-488; al-Dibaj 2/524).
If he endows upon his son and conditions returning to him if he dies: the waqf is void according to the sound position among the Shafi'is; according to an opinion, it is valid like the lifetime habas (Rawdat al-Talibin 4/146).
If the waqif conditions that the beneficiary not benefit from the waqf, the waqf is annulled, the condition conflicting with its purport among the Hanbalis (al-Mubdi' 5/344; Kashshaf al-Qina' 4/317; Sharh Muntaha al-Iradat 4/355; Matalib Uli al-Nuha 4/318).
The waqf is void if the waqif conditions changing a condition of the waqf among the Hanbalis, whether for himself or for the nazir after him, for it is a condition that conflicts with the purport of the waqf and annuls it, as if he conditioned that no benefit be drawn from it.
The condition of excluding and including whom he wills
Exclusion and inclusion have two forms. The first: bringing in whom he wills and removing whom he wills from outside the beneficiaries of the waqf. The Hanbalis and the Shafi'is explicitly stated it according to the more correct opinion: if he conditions in the waqf excluding whom he wills of the beneficiaries and including whom he wills from others than them, it is not valid, for it is a condition that conflicts with the purport of the waqf and annuls it, as if he conditioned that no benefit be drawn from it.
Al-Nawawi said: if he endows and conditions for himself to deprive whom he wills, to advance or delay, the condition is void according to the more correct opinion; that is if the waqf is founded with this condition; if he formulated it absolutely then wants to change what he mentioned by deprivation, addition, advancing or delaying, that is absolutely not permitted to him. If we validate his condition for himself, his condition for another is void according to the more correct opinion; if we annul it, its nullity of the waqf differs according to whether the waqf is like the manumission or not. Such is the sum of what came to me from the companions' books: their majority was decisive on the nullity of the condition and of the waqf in all these forms.
Al-Ghazali alone ranked these forms into three degrees: the first: "I endow on condition of returning whenever I wish, or of depriving the entitled one and transferring the right to another whenever I wish": void; the second: "on condition of modifying the entitled one's share according to the interest": permitted; the third: "I modify its detail": two opinions. This ordering is hardly found in anyone else and contains a confusion, for the transfer mentioned in the first is the modification mentioned in the second; the madhhab is what the majority mentioned (Rawdat al-Talibin 4/146-147; al-Wasit 5/190; al-Iqna' 2/363; Mughni al-Muhtaj 3/467; al-Siraj al-Wahhaj p. 304).
The Hanafis (and the Shafi'is according to an opinion) say: if he conditions for himself to reduce the allocations whenever he wishes, to increase, to exclude whom he wills and to replace him, that is permitted to him; his successor can only fix it for him; once he has done so, he can no longer change it; if he wants that for himself for life, increasing, reducing, including and excluding repeatedly, he conditions that. The Shafi'is add on this opinion: if it is said that this is permitted, it is valid if he named, at the conclusion of the contract, persons, and then he may bring in whom he wills and remove whom he wills; if he has done so once, the question whether he may still do so has two answers: no, for he did what he wished according to his condition which has stabilized; or yes, repeatedly as long as he lives, by virtue of the generality of the condition; if he dies, the status is fixed upon those in it at his death: whoever entered cannot be excluded, and whoever was excluded cannot be included (al-Hawi al-Kabir 7/531).
Shaykh al-Islam Ibn Taymiyya said: every administrator invested with authority to whom it is said "he does what he wills" only aims at a legal interest; even if the waqif explicitly declares that he does what he desires and judges, absolutely, that is a void condition contrary to the sharia; at most it is a permitted condition, void according to the sound and well-known position; even if two actions are equal, lots are drawn; if it is said here to choose between them, it has a basis (al-Fatawa al-Kubra 4/510).
The second form: bringing in whom he wills and removing whom he wills from among the beneficiaries of the waqf. The jurists of the four schools, the Hanafis, the Malikis, the Shafi'is and the Hanbalis, hold that if the waqif conditions at the inception of the waqf the exclusion of whom he wills of the beneficiaries by a description and the inclusion of whom he wills by a description, the waqf is valid, as in: "I endow it for the poor of Banu Tamim": whoever of the rich becomes poor is included after having been excluded, and whoever of the poor becomes rich leaves it after having been included.
The Hanafis add: if he conditions in his waqf increasing the function of the one he judges worthy of increase, reducing the one he judges worthy of reduction among the beneficiaries, including therein whom he wants to include and excluding whom he wants to exclude, that is permitted. Once he has increased one, reduced, included or excluded once, he can no longer change it, for his condition bore upon an act he judges: when he has judged it and ratified it, what he judged has ended.
If he wants that to be permitted to him for life, he says: "on condition that such son of such may raise the rank of the one he judges worthy of increase, reduce the one he judges worthy of reduction, remove the one he increased and increase the one he reduced, include and exclude whenever he wishes, once after another, a judgment after another, a will after another, as long as he lives"; if he then modifies something of what he had conditioned for himself or dies before, the status of the waqf stabilizes according to the state of the day of his death, and his successor no longer has that power, unless the waqif conditioned it for him in the origin of the waqf. If he conditioned these matters, or some of them, for the administrator after him without conditioning them for himself, it is permitted to him to do them as long as he lives, for the condition in favor of another is a condition on his part for himself; upon his death, the administrator may do what was conditioned for him.
If he conditioned these matters for the administrator as long as he himself lives, it is permitted to him and to the administrator as long as he lives. If he conditioned for himself in the origin of the waqf the substitution, the increase or the reduction and did not do it, he cannot attribute it to the administrator, for the condition in the origin is restricted to himself; he can only do what he conditioned at the time of the contract (al-Is'af p. 34-35; Sharh Fath al-Qadir 6/228; al-Bahr al-Ra'iq 5/242; Ibn Abidin 4/385; Tanqih al-Fatawa al-Hamidiyya 2/258; al-Fatawa al-Hindiyya 2/402).
The Malikis say: if the waqif conditions in his waqf a description for the beneficiaries, the one whose description disappears afterwards leaves the waqf; if he did not condition a description, he does not leave it even if he no longer needs it. Whoever dwells in the habas of his share with the description of need, then becomes rich, does not leave the habas to make room for another, even if that other needs it and even if the dwelling has no room, for he dwells there by right: he only leaves it by his consent, the consideration being the need at the origin; unless the waqif conditioned that whoever becomes wealthy leaves it for another: one acts upon that.
If he endows and conditions a description, such as dwelling in the waqf, or the poor taking from the produce, or the students of knowledge, or the young or the children, whoever whose description disappears after his settling leaves the waqf. The difference between the first and the second category: in the second, the right is suspended upon a description that has disappeared, and the right disappears with it; in the first, the right is not suspended upon poverty but upon something else, the poor being only a mere precondition, and the meaning upon which the right is suspended subsists (al-Sharh al-Kabir with al-Dasuqi's hashiya 5/489; al-Taj wa-l-Iklil 4/593; Sharh Mukhtasar Khalil 7/101; al-Fawa'id al-Dawani 2/164; Tahrir al-Mukhtasar 4/669; al-Sawi 9/196).
As for the Shafi'is, al-Mawardi reports that al-Shafi'i said: "among the exclusions by description and the returns by description". Al-Mawardi says: it is valid, according to two modes: excluding whom he excludes and including whom he includes by description, while conditioning it: when the description is present, he enters; when it disappears, he leaves; that is permitted, carried upon his condition, as in: "I endow it for the rich of Banu Tamim": whoever of the poor becomes rich enters it after having been excluded, whoever of the rich becomes poor leaves it after having been included. Al-Nawawi says: if he says "I endow for my sons the poor, or for my daughters the widows", whoever of them becomes wealthy, or she who marries, leaves the right; if he becomes poor again or the marriage ends, the right returns.
I have not seen our companions addressing her right during the waiting period ('idda); it should be said: if the divorce is definitive, or if she separates by rescission or by death, she is entitled, for she is not a wife during the waiting period; if it is revocable, no, for she is a wife; Allah is the Most Knowing. Al-'Abbadi says in "al-Ziyadat": if he endows upon the mothers of his children except the one of them who marries, the one who marries leaves and does not return through the divorce; the difference lies in the wording: he fixed the right for his widowed daughters, and through the divorce she becomes a widow again; here he made her a beneficiary except if she marries, and through the divorce she does not leave the fact that she married. As for the meaning: his purpose is that the mother of his child fulfills him without any other replacing her: the one who marries does not fulfill him, even if divorced (Rawdat al-Talibin 4/158-159).
The Hanbalis say: if the waqif conditions excluding whom he wills of the beneficiaries and including whom he wills by a description, it is valid: he suspends the right and the deprivation upon a conditioned description; whoever has a description of entitlement obtains what is conditioned for him; if that description disappears, his right disappears; if it returns, his right returns. The suspension of the right is like endowing upon his children on condition that they be poor or righteous. The suspension of the deprivation by description is to say: "this is a waqf upon my children, or the children of Zayd; whoever of them disobeys or becomes rich, and the like of it such as ceasing to occupy oneself with knowledge, has nothing": that is valid according to his word.
Or if he conditions excluding whom he wills of the beneficiaries and including whom he wills among them: it is valid, for it is not excluding the beneficiary from the waqf, but suspending the right upon his description; it is as if he gave him a right in the waqf as long as he has that will, without giving him a right if the description disappears; it is not suspending the waqf upon a description, but an absolute waqf whose right is conditioned upon a description. There is no difference between conditioning that for himself or for the nazir after him (al-Mughni 5/353; al-Sharh al-Kabir 6/197; al-Insaf 7/57; Kashshaf al-Qina' 4/316-317; Sharh Muntaha al-Iradat 4/354-355; al-Rawd al-Murbi' 2/174; Matalib Uli al-Nuha 4/317-318; Manar al-Sabil 2/332-333).
If he endows something upon his children and conditions that the daughter who marries has no right in the waqf, that is valid, as came from Ibn al-Zubayr's word; likewise if he endows upon his wife as long as she has no husband: when she marries, she has no right anymore. And the statement of Shaykh al-Islam Ibn Taymiyya on the administrator invested with authority, cited above, comes back in this same section (al-Mughni 5/353; al-Sharh al-Kabir 6/197; al-Insaf 7/57; Kashshaf al-Qina' 4/316-317; Sharh Muntaha al-Iradat 4/354-355; al-Rawd al-Murbi' 2/174; Matalib Uli al-Nuha 4/317-318; Manar al-Sabil 2/332-333; al-Fatawa al-Kubra 4/510).