Islamic Fiqh > Endowments (waqf) and property > Conditions for the validity of a waqf > The third pillar: the beneficiary of the waqf
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Updated on 25 September 2026 at 6:57 PM
This part belongs to the section: All parts.
Third part of the chapter on the pillars of the waqf. It is devoted to the beneficiary of the waqf (al-mawquf 'alayh), that is, the person or cause that benefits from the endowed property. The jurists of the four schools examine its conditions there: being a cause of goodness and nearness to Allah, being capable of valid ownership, existing at the time of the waqf, not being an entity destined to die out, and being known. The schools' positions are cited with their classical references.
The beneficiary of the waqf is the cause that draws benefit from the endowed property, whether determined, like a specific person ("I have made a waqf for Muhammad"), or undetermined, like the poor and the needy. Certain conditions are required in this beneficiary. The first is that it be a cause of goodness and nearness to Allah.
The jurists disagreed: must the waqf be made for a cause of goodness and nearness, or does the absence of disobedience suffice, without nearness, so that the waqf would be valid even for the rich and for merely permissible things? The Hanafis and the Hanbalis in the madhhab held that the waqf must in itself be an act of drawing near, by being devoted to a cause of goodness, whether the beneficiary is a Muslim or a dhimmi; for the dhimmi is a place of drawing near: giving him charity is permitted, even giving him the zakat of breaking the fast according to the Hanafis. And as for what has been reported:
Safiyya bint Huyayy, wife of the Prophet, peace and blessings of Allah be upon him, made a waqf for her brother who was a Jew.Narrated by Abd al-Razzaq in al-Musannaf (10/353, no. 19344) and al-Darimi (no. 3341)
This hadith is weak: Layth ibn Abi Sulaym, weak in hadith, appears in its chain; yet the jurists did not reject it.
The Hanafis said: it is required that the waqf be an act of drawing near in itself, in that looking at its substance reveals drawing near; this means that the Law judges that, were it to come from a Muslim, it would be an act of drawing near, on the assumption that he intended it (Hashiyat Ibn Abidin, 4/341). The Hanbalis said: it is required that the waqf be for a cause of goodness; goodness (al-birr) is the comprehensive name for good, whose root is obedience to Allah; what is meant is requiring the meaning of nearness in the devotion to the beneficiary, for the waqf is nearness and charity, and the nearness must therefore exist in that for which the waqf is made, since that is the intended goal, whether the waqf comes from a Muslim or a dhimmi; for what is not valid from a Muslim is not valid from a dhimmi, such as a waqf for an undetermined person.
Nearness may be directed at humans, such as the poor, the needy, the fighters, the scholars and the students, or at other than them: the pilgrimage, military expeditions, copying fiqh, knowledge and the Quran, water fountains, bridges, the repair of roads, mosques, schools and hospitals, whose benefits return to humans and whose revenues are devoted to their interests without restriction. Of the first category are close relatives: the waqf for a relative, Muslim or dhimmi, is valid, as are the ribat and the khans for travelers. The waqf for a merely permissible thing, such as teaching permitted poetry, is not valid; nor for a disliked thing (makruh), such as teaching logic, nor for disobedience, for that amounts to aiding both (Kashshaf al-Qina, 4/299; Sharh Muntaha al-Iradat, 4/336; Matalib Uli al-Nuha, 4/281-282).
The Hanafis, the Shafi'is in one view, and the Hanbalis in the madhhab, which is the position of Ibn Taymiyya and Ibn al-Qayyim, said: the waqf for the rich is not valid. Allah, the Most High, said:
"so that it may not circulate solely among the rich of you"
Surah al-Hashr, 7
Ibn Taymiyya, may Allah have mercy on him, said: it is thus known that Allah dislikes wealth circulating among the rich, even though being rich is a permissible attribute; the waqf for the rich is therefore not permitted, and likewise, by analogy, all permissible attributes. Moreover, when the deed is not an act of drawing near, the founder is not rewarded for spending his wealth: he has devoted it to what serves him neither during his life nor after his death; the one who works at it finds no worldly benefit in it, which becomes a torment reaching neither him nor the founder, and it resembles what the Jahiliyya used to do of the endowments censured in surah al-An'am and al-Ma'ida. And when a condition stipulated in contracts is devoid of any benefit in religion or in the world, it is void by agreement in many principles; for it is a condition that does not exist in the Book of Allah, and it is void even if it numbered a hundred (Majmu al-Fatawa, 31/13-14).
The Hanafis said: the waqf for the rich alone is not permitted, for it is not an act of drawing near and brings no reward. But if he makes a waqf for the rich, whose number is known, and then afterwards for the poor, it is permitted, and it proceeds as he stipulated: there is nearness in aggregate, once the rich die out (al-Ikhtiyar, 3/55; al-Bahr al-Ra'iq, 5/216; Ibn Abidin, 4/337-338). The Hanbalis said: the waqf is not valid for a group of the rich, for highwaymen, for debauched people or for singers, nor for lighting a grave, perfuming it, or for one who dwells by it, serves it or visits it; for that is not of goodness: it is aiding disobedience (Kashshaf al-Qina, 4/300-301; Sharh Muntaha al-Iradat, 4/336, 338; Matalib Uli al-Nuha, 4/284).
Ibn al-Qayyim, may Allah have mercy on him, said: if he stipulates in his waqf that it be for the rich to the exclusion of the poor, it is a void condition according to the majority of jurists. Abu al-Ma'ali al-Juwayni, the imam of the two sanctuaries, may Allah be pleased with him, said: most of our companions asserted the invalidity categorically (I'lam al-Muwaqqi'in, 3/314).
The Malikis, the Shafi'is in the madhhab and the Hanbalis in one view said: the waqf for the rich is permitted, and the appearance of nearness is not required; the absence of disobedience suffices. The Malikis said: the waqf is valid even without apparent nearness, for it belongs to the chapter of gifts and presents, not to that of charities; that is why it is valid for the rich as for the poor; and nearness does not require intention, unlike the act of worship (Sharh Mukhtasar Khalil, 7/80; al-Sharh al-Kabir with the Hashiya of al-Dasuqi, 5/458; al-Sharh al-Saghir, 9/134; Manh al-Jalil, 8/114).
The Shafi'is said: if he makes a waqf for a category in which no nearness appears, such as the rich, the protected people (dhimmis) or the debauched, it is valid according to the soundest view; for the waqf is considered a transfer of ownership, and the condition is the absence of disobedience, not the appearance of nearness; giving them charity is even recommended as for others. According to a second view: no, because of the appearance of the intention of nearness. According to a third: it is valid for the rich and void for the dhimmis and the debauched. Al-Suyuti, may Allah have mercy on him, said: must the appearance of nearness be required in the waqf, or the absence of disobedience? Two views: the sounder is the second; the waqf is thus valid for the rich, the dhimmis and the debauched according to it, and not according to the first; he ruled firmly for the second in al-Wasiyya (al-Ashbah wa-l-Naza'ir, p. 49; Mughni al-Muhtaj, 3/460; Nihayat al-Muhtaj, 5/423; al-Dibaj, 2/520).
Al-Khatib al-Shirbini, may Allah have mercy on him, said: they did not address the criterion of wealth that entitles the waqf for the rich; al-Azra'i said: the more fitting is recourse to custom. Others said: it is the one to whom charity is forbidden, whether because of his ownership, his food and earnings, or his sustenance provided by another; this is preferable. If someone makes a waqf for the rich and a person claims to be rich, his claim is accepted only with evidence; conversely, if the waqf is for the poor and a person claims to be poor while no property is known to him, he is accepted without evidence, in consideration of the default in each of the two cases (Mughni al-Muhtaj, 3/460). Al-Mirdawi, may Allah have mercy on him, said: it has been said that the waqf for a permissible thing is also valid, and it has been said that it is valid for the permissible and the disliked. He says in al-Talkhis: it has been said that the condition is that it not be a cause of disobedience, whether there is nearness and reward or not. On this basis, the waqf for the rich is valid (al-Insaf, 7/13).
There is no disagreement among the jurists of the schools: the waqf for synagogues and churches is not valid, whether the founder is a Muslim or a dhimmi; for it is a disobedience: those places were built for disbelief, and it constitutes one of the greatest supports of their disbelief.
Ibn al-Qayyim, may Allah have mercy on him, said: as for the waqf for their churches, their synagogues and their places of disbelief where they raise the emblems of disbelief, it is not valid, whether it comes from a disbeliever or a Muslim; for it constitutes one of the greatest supports of their disbelief, an assistance and a strengthening, which contradicts the religion of Allah. The imam may seize every endowment made for a church, a fire temple or a synagogue, just as he may seize what is endowed for taverns, wine shops and houses of vice, indeed more fittingly; for the houses of disbelief are more hated by Allah and His messenger than the houses of vice, and the emblems of disbelief are graver than the signs of vice and more harmful to the religion. If we acknowledge the houses of disbelief as capable of being acknowledged without acknowledging the houses of vice, it is not because they are easier and lighter, but because the covenant of protection required acknowledging them, just as we acknowledge the disbeliever in his disbelief without acknowledging the sinner in his sin. The imam may therefore seize those endowments and devote them to causes of nearness: we have not permitted the dhimmis in the lands of Islam to own the land of the Muslims and their houses so as to aid themselves to the emblems of disbelief; and we have shown that they are, in the abode of Islam, subjects. That is why al-Shafi'i and those who agreed with him said: the jizya is taken from them in return for their dwelling among the Muslims and their benefiting from Islam; otherwise, the earth belongs to Allah, His messenger and His Muslim servants, for whom Allah wrote in the Zabur, after the reminder, that He would bequeath it to His righteous servants (Ahkam Ahl al-Dhimma, 1/603, 606).
The Malikis stated it explicitly in their books. The qadi Abu al-Walid (al-Baji) said: it appears to me that the waqf for the church is not permitted, for he has directed his charity toward pure disobedience, as if he had spent it on buying wine to give to the people of vice. Imam Ahmad stated something even more explicit. Al-Khallal reported in his Jami' a chapter: "The Christians make a waqf for the synagogues, then a Christian dies leaving children who embrace Islam": Muhammad ibn Abi Harun al-Warraq informed me that Ishaq ibn Ibrahim ibn Hani reported it to them; and Muhammad ibn Ali reported that Ya'qub ibn Bakhtan said: Abu Abdillah (Ahmad) was asked about Christian people who had endowed numerous estates for a synagogue, then died leaving Christian children, and the children later embraced Islam while the estates were in the hands of the Christians: may they take them from the hands of the Christians? He said: yes, they take them, and the Muslims must help them extract them from their hands; and this is also the madhhab of al-Shafi'i. The shaykh (Ibn Qudama) said in al-Mughni: we know of no disagreement on this; for what is not valid from a Muslim is not valid from a dhimmi, such as a waqf for an undetermined person.
He said: if it is objected: you have said that, when the People of the Book conclude corrupt contracts and exchange them, then embrace Islam or bring the matter before us, we do not annul what they did; how have you permitted going back on what they endowed for their churches? We answer: the waqf is not an exchange contract; it is the removal of ownership over the endowed property for a cause of nearness; if it does not occur validly, ownership has not fallen away and remains as it is, like manumission. He said: it has been reported from Ahmad, concerning a Christian who bore witness in his will that his slave would serve the church for five years and then be free, that if the master dies, the slave serves one year and then embraces Islam, he is asked: what of him? He said: he is free, and he claims from the young man (the heir) the wages of four years of service; it has also been reported from him that he is free at the moment his master dies, for this is disobedience. He said: this report is the sounder and the more consistent with his principles; his saying "he claims from him the service of four years" can be understood not as bearing on the will's validity, but because the manumission had been made in exchange, in consideration of its value: when the purpose becomes impossible through his conversion, the equivalent becomes due, as when a dhimmi marries a dhimmi woman on that condition and then embraces Islam: the dower becomes due from him. The first opinion is preferable. End of his words. He thus stated explicitly, in the matter of the waqf, that it is seized and handed over to the hands of his children who embraced Islam, which is an explicit statement of the waqf's invalidity; when the father died, the property passed by inheritance to the children, who then embraced Islam after inheriting it. The matter of the will does not contradict that: the manumission in it is for compensation, and if it is not valid, the heir claims in return its equivalent, namely the value, as the shaykh mentioned (al-Mughni, 5/376; Ahkam Ahl al-Dhimma, 1/603, 606).
Ibn Qudama, may Allah have mercy on him, said: issue: "when the waqf is not for a recognized good or for goodness, it is void." The sum of it is that the waqf is valid only for what is known: his children, his relatives or a specific man; or for a cause of goodness: building mosques, water fountains, books of fiqh, knowledge and the Quran, graves, water points and the path of Allah. It is not valid for an undetermined person, such as "a man" or "a woman"; for the waqf is a transfer of ownership of the thing or of its benefit, and it is not valid for the undetermined, as in sale and hire; nor for a disobedience, such as the fire temple, the synagogues, the churches and the books of the Torah and the Injil; for those places were built for disbelief, and those books have been altered and abrogated. That is why the Prophet became angry when he saw with Umar a sheet containing passages of the Torah and said: "Do you have a doubt, O son of al-Khattab? Have I not brought it to you pure and white? Were Musa, my brother, alive, he could only follow me"; had it not been a disobedience, he would not have been angry. The waqf for the lamps of the synagogue, its mats, its servant or its caretaker is like the waqf upon it, for what is intended by it is its veneration, whether the founder is a Muslim or a dhimmi. Ahmad said, concerning Christians who had endowed numerous estates for a synagogue, then died leaving Christian children who embraced Islam while the estates were in the hands of the Christians: they are entitled to take them, and the Muslims must help them extract them; this is the madhhab of al-Shafi'i and we know of no disagreement on it; for what is not valid from a Muslim is not valid from a dhimmi, such as a waqf for the undetermined. If the same objection is raised, the same answer is given: the waqf is not an exchange contract, but the removal of ownership for a cause of nearness; if it does not occur validly, ownership remains, like manumission (al-Mughni, 5/376).
Al-Bahuti, may Allah have mercy on him, said: the waqf is not valid for churches, fire temples, synagogues, monasteries, estates and their interests, such as their lamps, their mats, their fuel and their caretakers; for it is aid to disobedience. And if it is a waqf made by a dhimmi for what has just been mentioned, it is not valid, according to what preceded: what is not valid from a Muslim is not valid from a dhimmi. He says in Ahkam Ahl al-Dhimma: the imam may seize every endowment made for a church, a fire temple or a synagogue and devote it to a cause of nearness. End of quotation. That is when the heirs of the founder are not known; otherwise the heirs are entitled to take it back, as stated previously. The waqf remains valid for whoever lodges in them, that is, the churches and the estates, for the passerby and the traveler only; for the waqf is for them, not for the place, and giving them charity is permitted. The waqf for the Jews and the Christians is not valid, nor the waqf for copying the Torah and the Injil, even if it comes from a dhimmi, because of the alteration and falsification. It has been reported without an established chain that the Prophet became angry when he saw with Umar a sheet of the Torah; likewise books of innovation, and the will follows the waqf in what has been mentioned: it is valid for what can receive a waqf and void for what cannot (Kashshaf al-Qina, 4/300; Matalib Uli al-Nuha, 4/283; al-Insaf, 7/15).
Al-Mirdawi, may Allah have mercy on him, said: his saying "and it is not valid for the churches and the fire temples" applies likewise to the synagogues; this is the madhhab and the position of the companions, stated explicitly for the churches and the synagogues. In al-Mujaz there is a report allowing the waqf for the church and the synagogue like that for the passerby. Among the benefits: first, the dhimmi is like the Muslim in invalidity, according to the correct view of the madhhab: the dhimmi's waqf for the churches, the synagogues and the fire temples is not valid, nor for the interests of each of them, like the Muslim; it has been stated explicitly, and al-Harithi decided on it, as did others. The compiler said: we know of no disagreement on it; and he graded as sound in al-Wadih the dhimmi's waqf for the synagogue and the church, his words on the dhimmi's waqf for a dhimmi having been cited earlier. Second, the will is like the waqf in all of this, according to the correct view of the madhhab; he mentioned it in al-Furu', and it has been said: even from a disbeliever. He says in al-Intisar: if he vows charity for a dhimmi, it is binding on him; he mentions, in the madhhab and elsewhere, that it is valid for all, a mention reported by a group; and the qadi mentioned its validity for the mats and the lamps. He says in al-Tabsira: if he bequeaths for a cause without recognized good or goodness, such as a church or the books of the Torah, it is not valid; and from him: it is valid (al-Insaf, 7/15).
The Hanafis said: the condition of the waqf's validity is that it be a nearness for us and for them, that is, the protected people. If the dhimmi makes a waqf for a synagogue, and it falls into ruin, it goes to the poor: the waqf is not valid and the property becomes his inheritance; for it is not a nearness for us, like the waqf for the pilgrimage or the umra, which is not a nearness for them; unlike the waqf for the mosque of Bayt al-Maqdis, which is valid, for it is a nearness for us and for them. In al-Hawi: the Magian's waqf for the fire temple, and the Jew's and the Christian's waqf for the synagogue and the church, is void in the era of Islam; what existed in the days of the Jahiliyya is disputed, and the soundest view is that, once they enter the covenant of protection, no one interferes with it (al-Bahr al-Ra'iq, 5/204-205; Sharh Fath al-Qadir, 6/200; al-Muhit al-Burhani, 6/134; Majma' al-Anhar, 2/568; Ibn Abidin, 4/341; Tanqih al-Fatawa al-Hamidiyya, 2/235). Al-Haddad al-Hanafi, may Allah have mercy on him, said: the waqf for the synagogues, the churches and the highwaymen is not permitted, for there is no nearness in it (al-Jawhara al-Nayyira, 4/101).
Imam Ibn Abidin, may Allah have mercy on him, was asked about a Christian who owned a known house and who, in sound health, endowed it as an immediate waqf for the dignitaries (al-qasaqis) of the Christians existing on that day, then for the dignitaries after them, and, failing that, for the poor of the Christians, drafting a deed to that effect: is the waqf permitted, and does it go to the poor Christians? Answer: the mentioned waqf is permitted. Imam al-Khassaf said concerning the endowment of the protected people: what do you say if he declares: "I have made my house an endowed charity whose revenue is devoted to the poor of such-and-such a synagogue"? He said: this is permitted, for this property is devoted only to charity; do you not see that if he made a waqf for the poor of the Christians, I would allow it? Likewise, if he generalizes without specifying and says: "the revenue of my charity goes to the poor," he said: this is permitted. It is asked: what do you say if the dhimmi makes his land an endowed charity and says: "its revenue is spent for such-and-such a synagogue, and if this synagogue is destroyed, the revenue of this charity, after the expenses on it, goes to the poor and needy"? He said: the waqf is not permitted; it will be for the poor and needy, and nothing is spent on the synagogue of it. It is asked: and if he says "the revenue of this estate goes to the monks and the priests"? He said: this is void. It is asked: if he specifies the monks and the priests of such-and-such a synagogue? He said: all of this is void. End of quotation. In the Fatawa Qadi Khan: if the dhimmi makes a waqf for the church or the synagogue, is it permitted? Answer: the waqf is void, the property may be sold and becomes inheritance; likewise if he makes a waqf for the monks and the priests; if he makes a waqf for the poor Christians, it is permitted (Tanqih al-Fatawa al-Hamidiyya, 2/235).
He was also asked about a dhimmi who fell ill with a mortal illness and endowed his house for his two dhimmi daughters, then, after them, for such-and-such a church, and who died of his illness after three days, leaving a wife and two full brothers who had not ratified that: is the waqf then not permitted? Answer: yes. It is asked: and every waqf made by a dhimmi whose revenue is devoted to what is not permitted, like his statement concerning the building of synagogues and churches, of fire temples, their lighting and their repair: is it not void? He said: indeed (Tanqih al-Fatawa al-Hamidiyya, 2/236).
In al-Muhit al-Burhani of Imam Burhan al-Din Ibn Maza al-Hanafi, may Allah have mercy on him: a dhimmi holds in his hand a land and attests, in sound health, that this land had been endowed by a Muslim man who owned it, as a valid waqf for causes of goodness, the building of a mosque or the like, by which the Muslims draw near to Allah the Most High: his attestation is permitted; likewise if he attests it during his illness, and this land leaves the third of his property, so that his attestation is permitted. But if he attests that this Muslim had endowed this land for purposes by which the Muslims do not draw near to Allah the Most High, such as the waqf for the synagogues and the churches, his attestation is not valid: the land leaves the hand of the dhimmi and goes to the bayt al-mal. If this land does not leave the third of his property, the amount of the third may be attested in favor of that by which the Muslims draw near to Allah the Most High, and the rest goes to the bayt al-mal. If he attests that a dhimmi owned it, his attestation is valid for what is permitted of the endowments of the protected people, and void for what is not permitted of them: the land leaves his hand and goes to the bayt al-mal of the Muslims, for he did not name the owner (al-Muhit al-Burhani, 6/135).
As for the Malikis: al-Rassa' said in his commentary on the Hudud of Ibn Arafa, titled al-Hidaya: the issue in which al-Baji was refuted; al-Baji said: "it appears to me that his endowment (by a Muslim, for a church) must be annulled, for it is a disobedience, as if he devoted his wealth to the people of vice." The shaykh, may Allah have mercy on him, said after these words: the elder masters do not say "it appears to me" except in a matter open to examination, not in a necessary matter; yet the annulment of this endowment is necessary, derived from the usuli principles: for it causes a disobedience if one aids it, and whatever is of this kind is forbidden by consensus (al-Mukhtasar al-fiqhi, Sharh Hudud Ibn Arafa, 13/18). Al-Dardir, may Allah have mercy on him, said: the waqf for a disobedience is void, such as devoting its revenue to the price of wine, of hemp or of weapons for an unlawful fight; it includes the dhimmi's waqf for the church, whether for its monks or for its repair; for the madhhab has addressed them with the branches of the Shari'a (al-Sharh al-Kabir, 5/459).
Al-Dasuqi, may Allah have mercy on him, said: his saying "and it is void for a disobedience" means that the endowed property becomes property of the founder, which he owns and which is inherited from him, and not a return to the channels of annulled endowments, namely the nearest poor 'asaba relatives of the founder and a woman as if she were a man of the 'asaba. The meaning of "disobedience" is its validity for the disliked whose revenue is devoted to that intended purpose, even when the disliked is a matter of agreement, as al-Shaykh Karim al-Din ruled: the waqf for one who prays two rak'a after the asr, or for one who performs dhikr with raising the voice in the mosque, or the waqf for the mats of the mosque; some have said, for what is disliked by agreement, that the revenue of the waqf is devoted to a purpose near the one for which the waqf was made. His saying "it includes the dhimmi's waqf...": what he mentioned of the invalidity of the dhimmi's waqf for the church in absolute terms is the relied-upon view; Ibn Rushd has a second view. Its substance: the disbeliever's waqf for the monks of the church is void, for it is a disobedience; as for the waqf for its repair, or for its wounded and sick, it is valid and practiced: if the founder or the bishop wants to sell it and they bring the matter before us, satisfied with our judgment, the judge may rule between them by the judgment of Islam: the validity of the endowment and the nullity of its sale. And the qadi Iyyad has a third view: the waqf for the church is valid in absolute terms but not binding, whether this waqf was witnessed or not, whether it left the founder's hand or not; the founder may return to it whenever he wishes (Hashiyat al-Dasuqi on al-Sharh al-Kabir, 5/459-460; see also Sharh Mukhtasar Khalil, 7/82; Hashiyat al-Sawi on al-Sharh al-Saghir, 9/162).
The Shafi'is said: if a Muslim or a dhimmi makes a waqf for a purpose of disobedience, such as building churches and similar places of worship of the disbelievers in which to venerate, or their curtains, their lamps, their servants (their service being part of their upkeep), the books of the Torah and the Injil, or weapons for the highwaymen, the waqf is void without disagreement; for it is aid to disobedience, while the waqf was legislated for drawing near to Allah: the two are contradictory. It is the same for the building and the repair of the churches; for they are gathering places of disbelief and insults against the Prophet; and whether people are prevented from it or not, as in lands conquered by treaty on condition that they remain in their hands. Likewise for their curtains, their saddles, the books of the Torah and the Injil, for they have falsified and altered; with no difference between a Muslim or a dhimmi founder. Al-Shirbini, may Allah have mercy on him, said: the restriction of Ibn al-Rif'a, by which the waqf for the repair would be invalid only when prevented, is not heeded; al-Subki said that it is a gross error, because of their agreement on the invalidity of the waqf for the churches even if they predate the prophetic mission: if we do not validate the waqf for them, nor for their lamps nor their curtains, how could we validate the waqf for their repair? And when we say that the dhimmi's waqf for the churches is void and they do not bring the matter before us, we do not intervene, where they are not prevented from manifesting them; if they bring the matter before us, we annul it even if their judge carried it out; but what they endowed before the mission for their old churches, we do not annul: we acknowledge it where we acknowledge them. As for the building of churches not for worship, such as shelter-churches for passersby, the waqf for them is valid, as al-Zarkashi, Ibn al-Rif'a and others said, like the will (Mughni al-Muhtaj, 3/459; al-Bayan, 8/64; Rawdat al-Talibin, 4/138-139; Nihayat al-Muhtaj, 5/422-423; al-Najm al-Wahhaj, 5/469; al-Dibaj, 2/519).
Imam al-Subki, may Allah have mercy on him, said: the building of a church is forbidden by consensus, as is its repair; the jurists said likewise: if he bequeaths the building of a church, the bequest is void, for building a church is a disobedience, as is its repair; with no difference between a Muslim or a disbelieving testator. Likewise, if he makes a waqf for a church, the waqf is void, whether the founder is a Muslim or a disbeliever: its building, its rebuilding and its repair are a disobedience, whether the doer is a Muslim or a disbeliever. Such is the Shari'a of the Prophet, peace and blessings of Allah be upon him, and it binds every accountable person among the Muslims and the disbelievers (Fatawa al-Subki, 2/369-370).
It was stated previously that some scholars, among the conditions of the waqf's validity, require that it be for a cause of goodness and nearness, such as the Hanafis and the Hanbalis in the madhhab. Given the importance of the issue, the waqf for a permissible thing (mubah) receives its own treatment. The one who insisted most on the invalidity of the waqf for a permissible thing is the shaykh of Islam Ibn Taymiyya and his disciple Ibn al-Qayyim.
Ibn Taymiyya, may Allah have mercy on him, said: the principle is that every deed stipulated in the endowments devoted to works must be an act of drawing near, obligatory or recommended; stipulating a forbidden deed is not valid by the agreement of the Muslims; likewise the disliked, and likewise the permissible according to the correct view. When the founder's conditions divide into valid and void by agreement, if he stipulates a forbidden deed, it is manifestly void: there is no obedience to the creature in disobedience to the Creator. If he stipulates a permissible deed devoid of nearness, it is likewise void: he has stipulated a condition with no benefit whatsoever, neither for him nor for the beneficiary; for in himself, he benefits only from aid to goodness and piety. As for spending one's wealth on a permissible thing, if he does it during his lifetime, such as buying or hiring, it is permitted: he benefits from permissible things during his life. But the endower and the testator do not benefit, in this world, from what the beneficiary or the waqf's beneficiary do of permissible things, nor are they rewarded in the hereafter for that spending: were he to spend his wealth on it, it would be idle play and wastefulness with no grounds for disposing of the wealth, all the more so by imposing on himself a permissible thing with no purpose at all. He benefits neither in this world nor in the hereafter: there remains only a squanderer of wealth in falsehood, subjugated and tormented, consuming wealth in falsehood. And when the Law said: "the race is run only with a shoe, a hoof or a spearhead," it did not permit paying a prize for what does not aid the jihad, even if it were permissible and sometimes beneficial, like wrestling and foot racing. How then could one confine wealth perpetually for a deed with no benefit whatsoever, all the more so since the waqf is a perpetual confinement? He thus confines the wealth forever upon a deed from which neither he nor the one who works at it benefits. There is in that harm to the heirs and to the rest of mankind, through confining wealth with no benefit accruing to anyone; and harm to those who employ it, compelled in a deed that diverts them from their religious and worldly interests: no benefit results from it for him nor for them (Majmu al-Fatawa, 31/48-50).
Imam Ibn al-Qayyim, may Allah have mercy on him, divided the founders' conditions into four categories:
Ibn al-Qayyim said: the first three categories have neither sanctity nor consideration; only the fourth is the followed condition, the one that must be heeded. The Prophet invalidated all these conditions by his saying:
Whoever performs a deed that is not in accordance with our order, it is rejected from him.Narrated by Muslim (1718)
What the messenger of Allah rejected, it is not permitted to anyone to consider valid, nor to bind anyone by it and enforce it. Whoever grasps the details of this statement, which is among the necessary implications of faith, is thereby freed, in this world, from shackles and burdens; and, in the hereafter, from sin, punishment and the diminution of reward (I'lam al-Muwaqqi'in, 3/97-98).
Al-Mirdawi, may Allah have mercy on him, said: note: the apparent meaning of the compiler's words and those of others is that the permissible condition, from which no intention of nearness appears, must be honored in the founder's words. Al-Harithi said: it is the apparent meaning of the companions' words, and what is known in the madhhab is the obligation; he said: and it is the correct view. He says in al-Fa'iq: our shaykh, meaning al-Shaykh Taqi al-Din, may Allah have mercy on him, said: from the condition of being an act of nearness follows the requirement of nearness in the origin, which entails the binding force of permissible conditions. End of quotation. He says in al-Furu': our shaykh, Taqi al-Din, chose the binding force of the recommended condition especially; and the author of al-Madhhab mentioned it, for it does not benefit him and he is not excused, so that spending wealth on it would be wastefulness that is not permitted. End of quotation. Al-Harithi said: among the later companions are those who said that its stipulation (of the permissible) is not valid according to the apparent meaning of the madhhab, with their argumentation; this view has more force than taking nearness into account in the origin of the category, according to the apparent meaning of the madhhab; it is this that he meant by his saying "according to the apparent meaning of the madhhab," in my view, and the explicit statements of Ahmad support it; the explicit text exists also for the will. End of quotation. It appears that he meant by his saying "among the later companions" al-Shaykh Taqi al-Din, may Allah have mercy on him, his contemporary; the words of the author of al-Furu' allude to it. Al-Shaykh Taqi al-Din also said: the disliked condition is void by agreement (al-Insaf, 4/53, 55; see 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).
Ibn Taymiyya, may Allah have mercy on him, said: fulfilling the conditions is binding only if it does not lead to failing the purpose intended by the Law, which is either obligatory or recommended; preserving some conditions at the cost of losing the purpose intended by the conditions is not permitted (Majmu al-Fatawa, 31/16). The Malikis, the Shafi'is in the madhhab and the Hanbalis in one view said that the appearance of nearness is not required, the absence of disobedience sufficing, as was detailed previously: the waqf for a permissible thing is therefore valid according to them (Sharh Mukhtasar Khalil, 7/80; al-Sharh al-Kabir with Hashiyat al-Dasuqi, 5/458; al-Sharh al-Saghir, 9/134; Manh al-Jalil, 8/114; al-Ashbah wa-l-Naza'ir, p. 49; Mughni al-Muhtaj, 3/460; Nihayat al-Muhtaj, 5/423; al-Dibaj, 2/520).
The Malikis, the Shafi'is and the Hanbalis stated explicitly that the beneficiary must be one of those who can validly own: capable of ownership by legal ruling, such as the mosque, the ribat and the water point; or in sensible reality, such as a human being, Zayd or the poor. Ibn Qudama, may Allah have mercy on him, said: if it is objected: you have permitted the waqf for the mosques and the water fountains and their like, which do not own; we answer: the waqf there is for the Muslims, but it has been designated in a particular benefit for them (al-Mughni, 5/377; see al-Sharh al-Kabir with Hashiyat al-Dasuqi, 5/457; Tahbir al-Mukhtasar, 4/642; Sharh Mukhtasar Khalil, 7/80; Mughni al-Muhtaj, 3/456; Nihayat al-Muhtaj, 5/417; Kanz al-Raghibin, 3/244; al-Najm al-Wahhaj, 5/461; al-Mubdi', 5/322; Kashshaf al-Qina, 4/303; Sharh Muntaha al-Iradat, 4/341).
One issue falls under this condition: must the beneficiary exist at the time of the waqf (the waqf for the embryo and the child to be born)? The jurists disagreed concerning the beneficiary: must he exist at the time of the waqf, or is that not required and the waqf valid even for what does not yet exist, such as the embryo or the child to be born? The Shafi'is and the Hanbalis said that the validity of the waqf requires that the beneficiary exist at the time of the waqf: the waqf for what cannot validly be owned is not valid. The Shafi'is said: if he makes a waqf for a determined person, one, two or a group, the possibility of ownership at the time of the waqf is required by his existing in actuality, eligible for ownership; for the waqf is a transfer of ownership of the benefit. The waqf for the non-existent is therefore not valid: a mosque to be built, his child when he has none, the poor of his children or the poor among them; if among them there are a poor man and a rich man, it is valid, and whoever becomes poor afterwards also receives from it. He must likewise be capable of owning the endowed property: the waqf for an embryo is not valid, his ownership being impossible; for the waqf is a transfer and the establishment of an immediate right, resembling the gift, and not the will, which attaches to the future; whether the embryo is intended primarily or incidentally: even if he has children and an embryo at the time of the waqf, the embryo does not enter; once born, he enters with them, unless the founder named those present or mentioned their number, in which case he does not enter. The waqf for a dead person is not valid, for he owns nothing; nor for the recitation at the head of his grave or of the grave of his living father; nor for one of these two, for lack of designation of the beneficiary (Mughni al-Muhtaj, 3/456-457; al-Iqna', 2/361; Nihayat al-Muhtaj, 5/417-418; Kanz al-Raghibin, 3/244; al-Najm al-Wahhaj, 5/461; al-Dibaj, 2/517-518).
The Hanbalis said: the waqf for a determined entity, a category like such-and-such a mosque or a person like Zayd, requires settled ownership; for the waqf requires confining the principal in a manner whose removal is not permitted, and one whose ownership is not settled may be deprived of it. The waqf for the mosques and their like is a waqf for the Muslims, designated in a particular benefit for them. The waqf is therefore not valid for one who does not own: for the unknown, such as "a man," true of every man, or a mosque, true of every mosque; nor for the ambiguous, such as one of these two men or one of these two mosques, which is a matter of doubt, like "I sold you one of these two slaves." The waqf is likewise not valid for one who cannot own: the slave reserved for an inheritance (al-qinn), the mudabbar, the mother of the child (umm walad), the angel and the animal; for the waqf is a transfer, and it is therefore not valid for one who cannot own; the waqf for the mosques and their like is for the Muslims, designated in a particular benefit. The waqf is likewise not valid for an embryo as such, like "I have endowed my house for what is in this woman's womb": it is not valid, for it would then be a transfer, and the embryo cannot validly be owned except by inheritance or will. But the waqf for the embryo as a follower of a valid beneficiary, like "I have endowed it for my children" or "for the children of so-and-so" while an embryo is among them, includes it; likewise if he says "this is a waqf for my children, then their children forever," or "for the children of Zayd, then their children forever": the waqf then passes to a generation including an embryo, who becomes entitled with them upon his birth (al-Mughni, 5/377; al-Mubdi', 5/322; Kashshaf al-Qina, 4/303; Sharh Muntaha al-Iradat, 4/341).
The Hanafis and the Malikis said that the beneficiary's existence at the time of the waqf is not required for validity: the waqf is valid for the embryo and the child to be born. The Hanafis said: the existence of the beneficiary at the time of the waqf is not required for the validity of the waqf; if he makes a waqf for the children of Zayd when he has no child, or for a place he prepared for building a mosque or a school, it is valid according to the soundest view, and the revenue is devoted to the poor until the child is born to Zayd or the mosque is built; unlike the waqf for a mosque he will maintain without having prepared its place: the waqf is not valid. Ibn Abidin, may Allah have mercy on him, said: this waqf is called "with a broken beginning" (munqati' al-awwal). In al-Khaniyya: if he says "my land is an endowed charity for the son who will be born to me," while he has no child, it is valid; when the revenue comes, it is divided among the poor; if a child is born after the division, the revenue produced afterwards is devoted to this child; for his saying "an endowed charity" is a waqf for the poor, and the mention of the child to be born is an exception, as if he said: "unless a child is born to me, in which case its revenue is his for the remainder." End of quotation. There is also in al-Is'af: he endowed it for his child while he has only a grandson: the revenue goes to the grandson until the founder has a child of his loins, and then it is devoted to him. End of quotation (Ibn Abidin, 4/397). Ibn Nujaym, may Allah have mercy on him, said: the beneficiary's existence at the time of the waqf is not required for validity; if he makes a waqf for the children of Zayd without a child, it is valid, and the revenue is devoted to the poor until a child is born. They disagreed on the waqf for a school or a mosque whose place he prepared before building it: the correct view is permissibility, taking from precedence, as in Fath al-Qadir (al-Ashbah wa-l-Naza'ir, p. 194). Al-Hamawi, may Allah have mercy on him, said in his commentary on al-Ashbah: some scholars said that the origin of the issue is in al-'Imadiyya, which contains "and he devoted its end to the poor"; this restriction is necessary, for it is the pivot of validity, so that it not be a waqf for a purely non-existent thing, which is not permitted as in Sharh al-Haddadi; that is why the waqf is valid if he says "an endowed charity," as in the Fatawa Qadi Khan and many books, which mention that it is: "my land is an endowed charity for the poor, unless a child is born to me, in which case its revenue is his for the remainder." End of quotation. In both issues, the waqf is thus not for the purely non-existent, as in the question of al-Haddadi. On this basis, the validity of this waqf requires saying: "I have made a waqf for my children, having none, and its end will be for the poor"; for the waqf for the non-existent is not valid; this is shown by the words of al-Haddadi in al-Jawhara al-Nayyira, where he says: if he makes a waqf for a non-existent thing, such as for his child when he has none, it is not permitted (Ghamz 'Uyun al-Basa'ir, 2/225-226; al-Jawhara al-Nayyira, 4/101).
The Malikis said: the beneficiary's existence at the time of the waqf is not required for the validity of the waqf. If he says "I have made a waqf for my child," having no child at the time of the confinement, or "for what will be born to me," whether an embryo or other, or "for the children of so-and-so," who has no child, the waqf is valid and the revenue is suspended until existence, then given, unless an obstacle occurs, such as death or despair of having a child; the revenue then returns to the owner or to his heirs after his death; but that is without obligation: the binding force of the waqf and of its revenue is suspended until existence, then it becomes binding and the revenue is given. On this basis, the founder may sell this waqf before the birth of the beneficiary, according to Imam Malik. Ibn al-Qasim said: the waqf is binding by its mere contract, but is not ownership until despair of having a child; the matter of the confinement is then suspended on the despair. Ibn al-Majishun said: the confinement is ruled, the property is handed to a trustworthy person so that the taking of possession is valid, the revenue is suspended: if the child is born, it is for him; otherwise for the people nearest to the founder. Al-Dasuqi, may Allah have mercy on him, summarized: if he says "a waqf for my child, having none, or for what will be born," the two issues are matters of disagreement. Malik says: the waqf, though valid, is not binding, like its revenue, until existence, then it becomes binding and the revenue is given; the founder may therefore sell this waqf now, before the birth of the beneficiary. Ibn al-Qasim says: the waqf is binding by its mere contract, but is not ownership except upon despair of having a child; the matter of the confinement is suspended on the despair. Al-Shabrakhiti (the shaykh Ibrahim al-Shabrakhiti) said: the examination of Ibn al-Qasim's view regarding its revenue remains: is it suspended, so that the child, once born, receives it like the confinement, otherwise for the founder; or is it not suspended, so that the founder takes it until the birth, then it is given to him from that moment? End of quotation. The apparent is that it is suspended, as al-Laqqani stated explicitly. The apparent of the compiler is to follow Malik's view, without restricting it to despair as Ibn al-Qasim did; the disagreement occurs only if no child had been born previously; otherwise the waiting involves no dispute, said al-Shaykh Ahmad al-Zarqani (Hashiyat al-Dasuqi with al-Sharh al-Kabir, 5/476, 478, 457; al-Dhakhira, 6/316; Mawahib al-Jalil, 7/481; al-Taj wa-l-Iklil, 4/563, 580; Sharh Mukhtasar Khalil, 7/80, 93; Tahbir al-Mukhtasar, 4/642, 655-656; Hashiyat al-Sawi, 9/159; Manh al-Jalil, 8/114).