Islamic Fiqh > Endowments (waqf) and property > Conditions for the validity of a waqf > The fourth pillar: the object of the waqf
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Updated on 27 September 2026 at 3:52 AM
This part belongs to the section: All parts.
The fuqaha agree that the waqf of a property owned by the endower, lawful, from which benefit is drawn while its substance remains, is valid, and they differed over the rest. Ibn Abidin, may Allah have mercy on him, said: the seat of the waqf is appraisable wealth, on condition that it be real estate or a movable subject to transactions (Ibn Abidin 4/340); the Is'af adds: or whose endowment is customary (al-Is'af, p. 10). Al-Kasani, may Allah have mercy on him, said: what reverts to the object of the waqf is of several kinds: it may be of what is neither transported nor moved, like real estate and the like; the waqf of a movable as an end in itself is therefore not permitted (Bada'i al-Sana'i 6/220).
The Malikis said: it is what is owned in substance or in benefit, even a gentle animal that may be endowed to an entitled person for the benefit of its service, its riding or the carrying of loads; or a foodstuff or a substance, each of which may be endowed for a loan, the return of the equivalent standing in place of the substance's preservation (al-Sharh al-Saghir 9/133). The Shafi'is defined the object of the waqf as a specific substance, owned in a manner that admits transfer, yielding benefit while its substance remains, or a benefit whose hire is valid, on condition that the profit from it be continuous, lawful and intended.
They excepted from the requirement of ownership the imam's waqf of a part of the treasury's land: it is valid, whether for a specific person or a general category, on condition that an apparent interest appears to him in it, for his administration of it depends on it, like the guardian of the orphan (Mughni al-Muhtaj 3/453; Tuhfat al-Muhtaj 7/446-447; Nihayat al-Muhtaj 5/412-413; al-Najm al-Wahhaj 5/456; al-Dibaj 2/516; Tahrir alfaz al-Tanbih, p. 237). The Hanbalis said: the condition of the object of the waqf is that it be a substance whose sale is valid and from which benefit is drawn by custom, like hire, the benefit being lawful without necessity, intended, appraisable and obtained while the substance remains: perpetuity is intended, that it may be an ongoing charity; this is not found in what does not remain (Sharh Muntaha al-Iradat 4/333; Manar al-Sabil 2/322). The shaykh Taqi al-Din Ibn Taymiyya, may Allah have mercy on him, said: the closest definition of the waqf is: every substance whose lending for use is permitted.
Al-Mardawi, may Allah have mercy on him, said: he has thus included in his definition many things whose waqf is not permitted according to Imam Ahmad and his companions (al-Insaf 7/3).
The fuqaha, as we see, are unanimous on the validity of the waqf of property held in ownership from which benefit may be drawn, as a rule, in a lawful manner while its substance remains. They differed over the waqf of movables, of benefits and of undivided shares, and here is the detail. First, the waqf of real estate: the scholars are unanimous on the lawfulness of the waqf of real estate: lands, houses, wells and bridges, for a group of companions made such endowments. A great number of fuqaha transmitted this consensus, among them Ibn Hajar, al-Ramli, al-Damiri and al-Ansari.
Al-Khatib al-Shirbini, may Allah have mercy on him, said: the waqf of real estate, land or house, is valid by consensus (Mughni al-Muhtaj 3/454). Ibn Shas, may Allah have mercy on him, said: there is no doubt about the validity of the waqf of real estate: lands and what is attached to them: dwellings, shops, enclosures, mosques, manufactures, wells, bridges, roads and the like (Iqd al-Jawahir al-Thamina fi madhhab alam al-Madina 3/961; see al-Inaya, commentary on the Hidaya 8/338; Tabyin al-Haqa'iq 3/327; Bahr al-Ra'iq 5/216; al-Ikhtiyar 3/51; al-Jawhara al-Nayyira 4/104; al-Lubab 1/621; al-Is'af, p. 15; Mawahib al-Jalil 7/476; al-Tawdih 7/279; al-Mughni 5/374; al-Zurkashi's commentary 2/205; Kashshaf al-Qina 4/296; Sharh Muntaha al-Iradat 4/334; al-Rawd al-Murbi 2/170; Manar al-Sabil 2/322).
In proof, from Nafi', from Ibn Umar:
Umar ibn al-Khattab acquired land at Khaybar and came to the Prophet to seek his counsel about it. He said: O Messenger of Allah, I have acquired land at Khaybar and I have never had property dearer to me; what do you command me? He said: if you wish, retain its substance and give it in charity. Umar made it charity on condition that it be neither sold, nor gifted, nor inherited, and destined it to the poor, the relatives, the slaves to be freed, the cause of Allah, the wayfarer and the guest, with no blame upon its administrator for eating from it in a reasonable manner and feeding a relative who is not wealthy.
Narrated by al-Bukhari (no. 2586) and Muslim (no. 1632)
Hisham ibn Urwa narrated that al-Zubayr made his houses a charity for his sons, not to be sold or given away, and that al-Marduda among his daughters may dwell therein without harming or being harmed; if she is content with a husband, she has no right in the waqf (an authentic hadith mentioned earlier). From Uthman:
The Prophet entered Medina and there was no sweet water to drink there other than the well of Ruma. He said: who will buy the well of Ruma and place his bucket in it with the buckets of the Muslims, and have better than that in Paradise? I bought it from the depth of my property.
Narrated by an-Nasa'i (no. 3608), at-Tirmidhi (no. 3703), Ibn Hibban in his Sahih (no. 2492), Ibn Abi Asim in the Sunna (no. 1005) and ad-Daraqutni (4/197); a good hadith
In al-Tabarani's version, from Abu Salama Bishr ibn Bashir al-Aslami, from his father:
When the emigrants arrived in Medina they took a dislike to its water. A man of the Banu Ghifar owned a well called Ruma, from which he sold a waterskin for a mudd. The Messenger of Allah said to him: sell it to me for a spring in Paradise. He said: O Messenger of Allah, I have nothing else for myself and my dependents; I cannot.
The matter reached Uthman, who bought it for thirty-five thousand dirhams, then came to the Prophet and said: O Messenger of Allah, if I buy it, will you grant me what you granted him, a spring in Paradise? He said: yes. He said: I have bought it and made it for the Muslims.
Narrated by at-Tabarani (no. 1212)
Al-Bukhari opened a chapter: one who makes a waqf of land or a well while reserving for himself the like of the Muslims' buckets. Anas made a waqf of a house, in which he stayed whenever he came. Al-Zubayr made his houses charity, telling al-Marduda among his daughters that she may dwell therein without harming or being harmed, and that if she is content with a husband she has no right. Ibn Umar made his share of Umar's house a residence for the needy of Abdallah's family.
Imam Ahmad, may Allah have mercy on him, said: the waqf concerns lands and houses only according to what the companions of the Messenger of Allah made waqf upon (al-Mughni 5/374; Manar al-Sabil 2/322).
The Hanafis said: included in the waqf of land, without need to mention them, are the trees and buildings upon it; not included are the crops, the perfume plants, the khalaf, jasmine, fruit, vegetables, the tarfa, the firewood of the thickets, the rose, henna leaves, cotton and the eggplant. As for the roots that remain and the tree that is not cut before two years or more, they enter by way of accessory; likewise cattle and slaves, without mention. Great trees and buildings do not enter in the case where one makes his land or his house a graveyard, which remains his and his heirs' after him. If one makes a waqf of his land with its rights and all that is within it and proceeds from it, and a tree bears standing fruit on the day of the waqf, Hilal said: by analogy the fruit belongs to him and does not enter the waqf; by istihsan he must give it in charity to the poor as a vow, not as a waqf.
Al-Natifi mentioned: if he says "with its rights", it enters the waqf; Ibn Abidin said: that is more fitting, especially if he adds "all that is within it and proceeds from it". If he makes a waqf of a house with all it contains, while it shelters pigeons that fly, or a house holding beehives, the pigeon and the bee follow the house, as does the honey, as if one endowed an estate mentioning its slaves, its machinery and its ploughing tools.
Ibn Nujaym, may Allah have mercy on him, said: the upshot is that the waqf is like sale: crops and fruit enter only by mention; in the acknowledgment of land in one's hand for a man, while it bears standing fruit, the fruit belongs to the one in whose favor the land was acknowledged, if it is attached to the land. In the Zahiriyya: sugarcane does not enter; rose trees and jasmine enter; the mill enters the waqf of the estate, and the water mill and the hand mill are alike; pulleys enter, windlasses do not; in the waqf of the bath its cauldrons enter; in the waqf of the shop enters what entered its sale; the tanners' pits and the curriers' vats do not enter, whether inside the building or not. In the Muhit: if he makes a waqf of land on which there are trees, excepting the trees, the waqf is not permitted, for he excepts the trees according to their locations, so that what remains under the waqf becomes unknown (Bahr al-Ra'iq 5/216-217; al-Is'af, p. 19; Ibn Abidin 4/361).
The Hanafi and Hanbali fuqaha affirmed that if the real estate is famous, known and distinct, the mention of its boundaries is not required; if it is not, delimitation is required by consensus, as al-Muhallab and al-Hafiz Ibn Hajar say. Ibn Nujaym, may Allah have mercy on him, said: the author did not require, for the validity of the waqf of real estate, its delimitation; the condition is only that the object of the waqf be known; that is why he said in the Khulasa: if two men say "we testify concerning his land that he made it a waqf while he was on it, without mentioning its boundaries to us", their testimony is admitted, for they testified to the waqf of a specific land, even if they do not know the neighbors of its boundaries, so their testimony cannot be tampered with. If they testify that the endower made a waqf of his land and mention its boundaries, but we do not know that land nor where it lies, their testimony is admitted, and the claimant must produce proof that the land he claims is that one.
If they testify "he made a waqf of his land without delimiting it for us, but we know his land", their testimony is not admitted: perhaps the endower has another land; likewise if they say "we do not know of any other land of his", their testimony is not admitted: perhaps he has another land they do not know. The apparent of the Fath al-Qadir is the requirement of delimitation, for it says: if the house is famous and known, its waqf is valid even without delimitation, its fame dispensing with delimiting it; and this is not hidden: that condition concerns only the admissibility of testimony about the waqf, as we said. Ibn Abidin also transmitted this statement of the Bahr in his hashiya (Bahr al-Ra'iq 5/217; Sharh Fath al-Qadir 6/215; Ibn Abidin 4/461). The Hanbalis: al-Bahuti, may Allah have mercy on him, said: if he makes a waqf of famous real estate, the express mention of its boundaries is not required (Sharh Muntaha al-Iradat 4/334).
Al-Ruhaybani, may Allah have mercy on him, said: if the waqf concerns a house whose boundaries are not mentioned, it is valid if it is known, as said in the Sharh al-Muntaha; the apparent of what preceded is that if he makes a waqf of famous real estate its boundaries are not required, and that is the school as expressly stated; in the Furu': a group transmitted, concerning one who makes a waqf of a house without delimiting it: it is valid even without delimitation if it is known (Matalib Uli al-Nuha 4/277). Al-Mardawi, may Allah have mercy on him, said: a group transmitted from Imam Ahmad, concerning one who makes a waqf of a house without delimiting it: it is valid even without delimitation if it is known, and the shaykh Taqi al-Din, may Allah have mercy on him, chose it (al-Insaf 7/9).
Al-Bukhari titled a chapter: one who makes a waqf of land without specifying the boundaries: it is permitted, and likewise charity. Number 2617: Anas ibn Malik said:
Abu Talha was the Ansari of Medina owning the most property in palm groves, and the property dearest to him was Bayruha, facing the mosque; the Prophet used to enter it and drink of its sweet water. When the verse "You will never attain righteousness until you spend from what you love" was revealed, Abu Talha stood and said: O Messenger of Allah, Allah says: "You will never attain righteousness until you spend from what you love", and the property I love most is Bayruha; I make it charity for Allah, hoping for its righteousness, and I store it with Allah; place it where Allah shows you. He said: well done, that is profitable property, or perishing property, Ibn Maslama being in doubt; I have heard what you said, and I see you should place it among your relatives. Abu Talha said: I shall do so, O Messenger of Allah.
Abu Talha then divided it among his relatives and his paternal cousins.
Narrated by al-Bukhari (no. 2617)
Number 2618: Ibn Abbas reported:
A man said to the Messenger of Allah: my mother has died; would it benefit her if I gave charity on her behalf? He said: yes. The man said: I have a boundary wall, and I call you to witness that I have given it in charity on her behalf.
Narrated by al-Bukhari (no. 2618)
Al-Muhallab said: when the boundaries are not specified in the waqf, it is permitted only if the land has a known name that designates and identifies it, as Bayruha was identified, and as the boundary wall was identified to the one before whom it was attested; on this basis the narration is valid; but if the waqf is not identified and the endower owns many lands and properties, the waqf is only permitted by delimitation and identification, with no disagreement (Sharh Sahih al-Bukhari by Ibn Battal 8/188). Al-Hafiz Ibn Hajar, may Allah have mercy on him, said: his title, one who makes a waqf of land without specifying the boundaries: it is permitted, and likewise charity, leaves the lawfulness unrestricted; it applies if the endowed property or charity is famous and distinct, such that one is assured it will not be confused with another; otherwise delimitation is necessary by consensus.
But al-Ghazali mentioned in his Fatawa that whoever says "witness that all my properties are a waqf upon such-and-such", mentioning their destination without delimiting any of them: all of them become waqf, and the witnesses' ignorance of the boundaries does no harm; one may understand from al-Bukhari that the waqf is valid without delimitation with respect to the endower's conviction and his intent of a specific object in itself, delimitation being required only for testimony, so as to manifest the right of others; and Allah knows best. Badr al-Din al-Ayni, may Allah have mercy on him, said: this chapter states that if one makes a waqf of land without specifying the boundaries, it is permitted, but it is not absolute: the intent is that if the land is famous, the mention of its boundaries is not necessary; otherwise delimitation is necessary, lest it be confused with the boundaries of others, which would cause harm.
As for his words "and likewise charity", they mean: likewise the waqf expressed by the word "charity", as when he makes his land a charity for Allah, magnifying Him, as Abu Talha made his garden a charity for Allah without mentioning anything else (Fath al-Bari 5/396; Ibn Abidin 4/397).
The fuqaha differed over movable property, such as furniture, animals, weapons, slaves and trees: is its waqf valid or not? The majority of the fuqaha, the Malikis in the adopted view, the Shafi'is and the Hanbalis in the school, held lawful the waqf of movables: furniture, animals, weapons, slaves and garments; this on the basis of the Muslims' consensus on the validity of the waqf of riding tack and lamps in the mosques, without objection, and the hadith narrated by the two shaykhs from Abu Hurayra:
As for Khalid, you are doing an injustice to Khalid: he has retained his coats of mail and his war equipment in the cause of Allah, or, in one version: his gear.
Narrated by al-Bukhari (no. 1399) and Muslim (no. 983)
The lexicographers said: al-a'tad denotes the instruments of war, weapons, mounts and others; the singular is a'tad, and the plurals a'tadan and a'tuda. Weapons, in the Arabs' language, are swords, spears, bows, arrows, mail coats, shields, defensive instruments like the battle-axe, the mace and the dagger, the single-edged sword, the small shield and the great shield; the name weapon applies neither to the saddle, nor to the bridle, nor to the spur. Al-Nawawi, may Allah have mercy on him, said: this hadith of Khalid contains the proof of the validity of the waqf of movables, and it is the view of the whole community except Abu Hanifa and some of the Kufans (Sharh Sahih Muslim 7/56).
From Abu Hurayra, the Prophet said:
Whoever retains a horse in the cause of Allah, out of belief in Allah and truthfulness of His promise, its food, its fodder, its dung and its urine will be in his scale on the Day of Resurrection.
Narrated by al-Bukhari (no. 2698)
This is a foundation for the endowment of what is other than land. Al-Muhallab and others said: in this hadith lies the lawfulness of the waqf of horses for the defense of the Muslims, and from it is inferred the lawfulness of the waqf of what is other than horses, among movables and beyond movables, all the more (Fath al-Bari 6/57). It is reported from Umm Maqil:
When the Messenger of Allah performed the farewell pilgrimage, we had a camel which Abu Maqil destined for the cause of Allah; then illness struck us and Abu Maqil died. The Prophet set out, and when he had completed his pilgrimage I came to him. He said: Umm Maqil, what kept you from coming out with us? She said: we had prepared, then Abu Maqil died; we had a camel on which we wished to perform the pilgrimage, and Abu Maqil bequeathed it to the cause of Allah.
He said: then why did you not ride it? Pilgrimage is made in the cause of Allah.
Narrated by Abu Dawud (no. 1989) and Ibn Khuzayma in his Sahih (no. 2376); an authentic hadith
The waqf of the movable is valid because it involves the retention of the substance and the devoting of the benefit, like real estate and the retained horse; and because its waqf is valid together with another, its waqf alone is therefore valid, like real estate; and because it is wealth from which benefit is drawn in a path of drawing near to Allah, it is therefore permitted to make it a waqf like real estate (al-Ishraf 3/251, no. 1094; Sharh al-Kabir with Hashiyat al-Dasuqi 5/456; Mawahib al-Jalil 7/479-481; al-Taj wal-Iklil 4/561; Sharh Mukhtasar Khalil 7/79; Tathbir al-Mukhtasar 4/641; Tafsir al-Qurtubi 8/38; al-Hawi al-Kabir 7/517; al-Nawawi's Sharh Sahih Muslim 8/56; Mughni al-Muhtaj 3/453; Tuhfat al-Muhtaj 7/448; Nihayat al-Muhtaj 5/414; al-Najm al-Wahhaj 5/457; al-Dibaj 2/516; al-Mughni 5/375; al-Kafi 2/448; Sharh al-Kabir 6/188-189; al-Mubdi 5/316; al-Insaf 7/7; al-Muhalla 9/181).
The Malikis, according to one view, and Imam Ahmad in one narration, held that the waqf of the movable is not valid, for these are substances that do not remain in perpetuity, so their waqf is not admitted, like food. Al-Dasuqi, may Allah have mercy on him, said: his words "even if the owned thing is an animal" answer by the conditional what Ibn al-Qassar related of the prohibition of the animal's waqf; Ibn Rushd said: the place of dispute concerns what succeeds the substance, or a people in possession of substances; as for retaining it so that it be placed as it is in the cause of Allah, or so that its yield be spent on repairing the road, on the mosques' interests, or on distributing its yield to the poor and the like, that is permitted by consensus.
His words "and likewise garments" mean: and books, whose waqf is valid according to the school; they are thus of what is subject to dispute, for the dispute among us runs over every movable, while the adopted view is the validity of its waqf, contrary to the Hanafis who bar its waqf like the minority view among us (Hashiyat al-Dasuqi on the Sharh al-Kabir 5/456-457; al-Ishraf 3/251, no. 1094; Mawahib al-Jalil 7/479; Tathbir al-Mukhtasar 4/641; Tafsir al-Qurtubi 8/38; al-Mubdi 5/316; al-Insaf 7/7; al-Ifsah 2/46).
Al-Mardawi, may Allah have mercy on him, said: as for the waqf of what is not a movable, it is valid without dispute; as for the waqf of the movable, like the animal, the furniture and the weapons, the sound position of the school is the validity of its waqf, the companions follow it, and it has been expressly stated; against it: the waqf of what is not real estate is not valid, expressly stated in the narrations of al-Athram and Hanbal. Al-Harithi rejected the proof of this narration and made the school a single narration. Al-Marrudhi transmitted: the waqf of weapons is not permitted, so said Abu Bakr. He said in the Irshad: the waqf of garments is not valid (al-Insaf 7/7).
As for the Hanafis, they differed: according to Imam Abu Hanifa, may Allah have mercy on him, the waqf of what is transported and moved is not permitted without restriction, whether as an aim or as an accessory, a horse or other, subject to transactions or not, for perpetuity is the condition of its lawfulness, and the waqf of the movable does not become perpetual, being on the brink of destruction, so its waqf is not permitted. According to Abu Yusuf, the waqf of the movable as an aim is not permitted, unless it is accessory to real estate, as when he makes a waqf of an estate together with its cattle and its field slaves: that is permitted, and likewise the rest of the ploughing tools, for they follow the land in producing the intended aim; the accessory may carry into the ruling what does not carry as an aim, like the right to drink in a sale and building in a waqf; and Muhammad agrees with him, since the isolated waqf of a part of the movable being admitted with him, its waqf as accessory is admitted all the more.
The endower has no right to free them, for they have left his ownership: if he frees them they are not freed. Muhammad said: the retention of horses and weapons in the cause of Allah is permitted, and Abu Yusuf agrees; it is an istihsan with him, the analogy being prohibition, for what we said. The basis of the istihsan is the famous reports, among them his words: "As for Khalid, he retained coats of mail and horses in the cause of Allah"; "Talha retained his coats of mail in the cause of Allah"; it is also reported "his mounts", the horses being kurra', and camels enter the same ruling, for the Arabs strive upon them, as weapons are borne upon them. It is permitted according to the two to sell what has decayed or fallen into a state yielding no benefit: it is sold and its price is returned into its equivalent.
According to Muhammad, the waqf of any movable subject to transactions is permitted: the axe, the mortar, the adze, the saw, the funeral bier and its garments, the pots, the cauldrons and the Qurans. According to Abu Yusuf it is not permitted, for the analogy is abandoned only by the text, and the text came down concerning horses and weapons, so one is restricted to them. Muhammad says: the analogy may be abandoned by transactions, as in manufacturing, and transactions have occurred in these things.
Nasir ibn Yahya made a waqf of his books, attaching them to the Qurans; al-Babarti, may Allah have mercy on him, said: this is sound, for each is retained for religion, to teach it, learn it and read it; most of the fuqaha of the countries hold Muhammad's view; what is not subject to transactions cannot be endowed among us, for its waqf does not become perpetual, and there is need of it as we explained, so it becomes like the dirhams and dinars, unlike real estate; there is no contradicting evidence, neither from tradition nor from transactions, and it remains on the root of the analogy. That is because real estate becomes perpetual and jihad is the hump of religion: the sense of drawing near to Allah is thus stronger in them, and nothing else attains their meaning (al-Inaya, commentary on the Hidaya 8/335). Ibn Abidin, may Allah have mercy on him, said: the waqf of the movable as accessory to real estate is permitted without disagreement between the two.
There is no disagreement on the validity of the waqf of weapons and horses, on account of the famous reports; the dispute concerns other things: according to Abu Yusuf it is not permitted; according to Muhammad the waqf is permitted for any movable subject to transactions, and most of the fuqaha of the countries chose it, as said in the Hidaya; it is the sound position as said in the Is'af, and the view of most of the shaykhs as said in the Zahiriyya, for the analogy may be abandoned by transactions. It is transmitted in the Mujtaba, from the Siyar, that the waqf of the movable is permitted without restriction with Muhammad, and with transactions with Abu Yusuf; the detail is in the Bahr, and the famous position is the first (Ibn Abidin 4/363; see al-Mabsut 12/45; Bada'i al-Sana'i 6/220; Sharh Fath al-Qadir 6/218-219; al-Ikhtiyar 3/51; al-Jawhara al-Nayyira 4/105-107; al-Lubab 1/621-622; al-Is'af, p. 24; Bahr al-Ra'iq 5/216; Majma' al-Anhar 2/578-580; Tanqih al-Fatawa al-Hamidiyya 2/207).
Al-Kasani, may Allah have mercy on him, said: if he makes a waqf of standing trees, the analogy leads to prohibition, for it is the waqf of a movable, while istihsan permits it on account of people's transactions. As for the waqf of books, it is not permitted on the foundation of Abu Hanifa; according to the view of the two companions the shaykhs differed, and it is related that Nasr ibn Yahya endowed them to the jurists among the companions of Abu Hanifa (Bada'i al-Sana'i 6/220; Ibn Abidin said in the Hamidiyya 2/207: the tree is of the kind of the movable, as expressly stated in the Bahr).
The fuqaha differed over the benefit: is it permitted to endow it without the ownership, like one who rents a house and then makes it a waqf, or is the waqf of the benefit valid only together with ownership? The majority of the fuqaha, the Hanafis, the Shafi'is and the Hanbalis, held that the waqf of the benefit without the ownership is not permitted, whether temporary like hire or perpetual like bequest, for ownership is the foundation and the benefit the branch, and the branch follows the foundation; and because among the conditions of the waqf is that it be a substance from which benefit is drawn while its substance remains, and that it be perpetual (Sharh Fath al-Qadir 6/213; al-Inaya 8/331-332; al-Jawhara al-Nayyira 4/101; al-Lubab 1/621; Bahr al-Ra'iq 5/204-212; Ibn Abidin 4/141; al-Hawi al-Kabir 7/519; Mughni al-Muhtaj 3/455; al-Najm al-Wahhaj 5/460; al-Fatawa al-Fiqhiyya al-Kubra 3/358; al-Rawd al-Murbi 2/170).
The Malikis, contrary to Ibn al-Hajib, held the waqf of the benefit lawful: it is not among the conditions of the waqf that its ownership belong to the endower; it is permitted to rent a house for a known period in order to endow its benefit during that period, the waqf ending with it, for perpetuity is not required in it, even if the rented house is an endowment; whoever rents an endowed house for a period may retain its benefit for another entitled person, other than the first, during that period; as for the beneficiary of the endowment, he may not retain the benefit due to him, for he does not own it: the beneficiary of the waqf owns the benefiting, not the benefit itself (al-Mukhtasar al-Fiqhi 13/10; Sharh al-Kabir with Hashiyat al-Dasuqi 5/456; Mawahib al-Jalil 7/478-479; al-Taj wal-Iklil 4/561; Sharh Mukhtasar Khalil 7/79; Tathbir al-Mukhtasar 4/641). The cause of their difference: is perpetuity required in the waqf or not?
Those who require it, the majority, the Hanafis, the Shafi'is and the Hanbalis, as has preceded, say the waqf of the hired substance is not permitted; those who do not require it, the Malikis, say the waqf of the benefit is valid: one rents a house for a known period and endows its benefit for that period, the waqf ending with it. The issue has already been treated in full under the waqf of the hired substance.
The fuqaha differed over the waqf of undivided shares: is it valid or not, after their agreement on its validity should a judge so rule? The majority of the fuqaha, the Malikis with a detail to come, the Shafi'is and the Hanbalis, as well as Abu Yusuf among the Hanafis, held lawful the waqf of shares of real estate or movable property, without its extending to the rest, for that is a feature of emancipation; their proof is the hadith narrated by an-Nasa'i and Ibn Maja, from Nafi', from Ibn Umar: Umar said to the Prophet:
The hundred shares I hold at Khaybar: I never obtained property that charmed me more; I have decided to give it in charity. The Prophet said: retain its root and devote its fruit.
Narrated by an-Nasa'i (no. 3603) and Ibn Maja (no. 2397); an authentic hadith
Such is the trait of undivided shares: Umar's hundred shares at Khaybar were not divided; and because the waqf is a contract that may be concluded upon a separated part of the whole: it is therefore valid upon shares, like sale; or upon a share exposed to sale, whose waqf is therefore valid like the separated part; and because the waqf is the retention of the root and the devoting of the benefit, which occurs in shares as in the separated part; and we do not accept the taking of possession as a condition, and even if we did, what is valid in sale is valid in the waqf. They also rest on what al-Bukhari narrated, in the chapter: when several people make a waqf of land together in undivided shares, it is permitted. Number 2619: Anas said:
The Prophet ordered the building of the mosque and said: O sons of Najjar, name me a price for this garden of yours. They said: no, by Allah: we shall seek its price only from Allah.
Narrated by al-Bukhari (no. 2619)
The sons of Najjar gave their garden for the site of the mosque, saying "we shall seek its price only from Allah", and the Prophet validated their act, which was a waqf of undivided shares; the proof lies in the Sunna, not in its contrary (Bada'i al-Sana'i 6/220; Mukhtasar Ikhtilaf al-Ulama 4/159; al-Ikhtiyar 3/51; al-Jawhara al-Nayyira 4/100; al-Lubab 1/619; Bahr al-Ra'iq 5/212-213; Durrar al-Hukkam 6/123; Majma' al-Anhar 2/573; Hashiyat Ibn Abidin 4/348, 353, 362; Sharh Sahih al-Bukhari by Ibn Battal 8/191; Sharh al-Kabir with Hashiyat al-Dasuqi 5/455; Mawahib al-Jalil 7/476; Sharh Mayara 2/228; Sharh Mukhtasar Khalil 7/79; al-Hawi al-Kabir 7/519; Mughni al-Muhtaj 3/454-455; Tuhfat al-Muhtaj 7/449-450; Nihayat al-Muhtaj 5/415; al-Najm al-Wahhaj 5/458; al-Dibaj 2/517; al-Mughni 5/375; al-Kafi 2/448; al-Ifsah 2/46; Sharh al-Kabir 6/189; al-Zurkashi's commentary 2/205; al-Insaf 7/8; Kashshaf al-Qina 4/297; Sharh Muntaha al-Iradat 4/333; Fath al-Bari 5/386, 399, 404; Umdat al-Qari 12/52).
The Malikis said: the waqf of shares is valid if the property admits division, and the endower is compelled to sell if the partner wishes; one does not say "division is a sale, and sale is not admitted in the waqf", for we say: the preponderant view is that division is a separation of a right, not a sale; and on the view that it is a sale, the sale barred in the waqf is that of the specified property, not of what is offered for division, for it is like one permitted to sell to the endower: the endower, knowing his partner may sell, is as if he had authorized it. If the property does not admit division, is it valid or not? Two preponderant views on its validity or not; on the view of validity the endower is compelled to sell if the partner wishes and to place the price in its equivalent; must he be compelled to place the price in an equivalent waqf or not? Two preponderant views (Sharh Mukhtasar Khalil 7/79; Hashiyat al-Adawi 2/343; Sharh al-Kabir with Hashiyat al-Dasuqi 5/455; Mawahib al-Jalil 7/476; Sharh Mayara 2/228).
The Shafi'is said: the waqf of shares, of real estate or movable, is valid even if the amount of the share or its description is unknown, for Umar's waqf, the first waqf of Islam, was in undivided shares; it does not extend to the rest, even if it is a mosque; division becomes obligatory, for it is the necessary path to benefit from the endowed property, and remaining in a state of major impurity in it is forbidden, the prohibition prevailing; no difference whether the endowed property be a small mosque or a great one. The Hanbalis said: the waqf of shares, such as a half or a share of a substance whose waqf is valid, is permitted, by the preceding hadith of Ibn Umar, and because the contract is permitted upon a separated part of the whole: it is therefore valid upon shares, like sale; it is recommended to say "such share of such share".
If he makes a waqf of shares as a mosque, the mosque's ruling attaches immediately upon the pronouncement of the waqf: the one in major impurity, the drunkard and one carrying a communicable impurity are barred; then division here becomes obligatory as a path to benefit from the endowed property (al-Mughni 5/375; al-Kafi 2/448; al-Ifsah 2/46; Sharh al-Kabir 6/189; al-Zurkashi's commentary 2/205; al-Insaf 7/8; Kashshaf al-Qina 4/297; Sharh Muntaha al-Iradat 4/333). Imam Muhammad ibn al-Hasan held that the waqf of undivided shares is not valid, for among the conditions of the waqf's validity with him is its handover, and common ownership harms taking possession and handover.
Ibn al-Humam, may Allah have mercy on him, said: the waqf of shares is permitted with Abu Yusuf, and with Muhammad it is not permitted; the disagreement rests on the disagreement over requiring handover in the waqf: Muhammad having required it, he declared the shares invalid, for division completes taking possession, which is necessary, therefore obligatory; Abu Yusuf does not require the manager's taking of possession, so he does not require what is part of it. Whoever takes Abu Yusuf's view on the dispensation by the mere word, and they are the shaykhs of Balkh, takes his view here; whoever takes Muhammad's, and they are the shaykhs of Bukhara, takes his view on the waqf of shares.
As for Muhammad's attaching the shares to the executed gift immediately, these cannot be undivided shares, and the same applies to the continuous charity: Abu Yusuf distinguished, the requirement of taking possession in those coming from their being a transfer of another's ownership, whereas the waqf is not a transfer of another's ownership but the removal of ownership without transfer; it is not therefore revoked like emancipation and divorce, and nothing grounds the requirement of division in the waqf.
The upshot: shares either admit division or do not. In what admits it, Abu Yusuf permitted the waqf, except the mosque, the graveyard, the caravanserai and the water dispensary, while Muhammad barred it without restriction. In what does not admit it, like the bath, the well and the mill, they agreed on its lawfulness, except the mosque and the graveyard.
Agreement thus stands on never making undivided shares a mosque or a graveyard, whether they admit division or not; the disagreement rests on requiring taking possession and handover or dispensing with it: Abu Yusuf not requiring it, he permitted the waqf; Muhammad requiring it, he barred it, for common ownership, though it does not prevent handover and possession, the apparent object of the waqf being possessed by its owner before the waqf, prevents the completion of possession; Muhammad therefore barred it when the completion of possession is possible, which is what admits division: one may first divide and then endow; and he set aside the completion of possession when impossible, in what does not admit division, for prior division would prevent the benefit, like the small house and the bath; he thus sufficed with handover of the whole.
They agreed to bar the waqf of shares without restriction as a mosque or graveyard, for common ownership prevents Allah's right from becoming pure; and because the lawfulness of the waqf of shares in what does not admit division would require mutual accommodation, which would lead to what is objectionable: that the place be a mosque one year and a stable for beasts the next, a graveyard one year and a farm the next, or latrines; as for excavation, it is not a necessary consequence of accommodation, and the partner has no right to it. In what admits division, if the judge rules on its validity and some request division, there is no division with Abu Hanifa: they accommodate one another; with the two companions there is division; and they agreed that if the whole is a waqf upon beneficiaries and they wish division, it is not admitted, and likewise mutual accommodation.
If the endower and his partner divide, by compulsion of division after judgment or before it according to Abu Yusuf, and the endower's share falls in a specific place, that place is the waqf and he need not make the waqf a second time (Sharh Fath al-Qadir 6/210-212; see Bada'i al-Sana'i 6/220; Mukhtasar Ikhtilaf al-Ulama 4/159; al-Ikhtiyar 3/51; al-Jawhara al-Nayyira 4/100; al-Lubab 1/619; Bahr al-Ra'iq 5/212-213; Durrar al-Hukkam 6/123; Majma' al-Anhar 2/573; Hashiyat Ibn Abidin 4/348, 353, 362; Umdat al-Qari 12/52).
In the Is'af: Abu Yusuf and Muhammad, may Allah have mercy on them, agreed on the lawfulness of the waqf of shares that cannot be divided, like the bath, the well and the mill, and they differed over what can be: Abu Yusuf permitted it and the shaykhs of Balkh followed him, Muhammad invalidated it, building on their earlier difference. We therefore say, subdividing upon Abu Yusuf's view: if one of the two partners makes a waqf of his share of land, it is permitted; if they divide thereafter, what falls into the endower's share is waqf, with no need to renew the waqf; if he makes it a waqf a second time, it is more prudent, to remove the dispute. If he makes a waqf of half his land, for example, it behooves him to sell one half and then share with the buyer.
If he brings the matter before the judge, who orders a man to share with him, it is permitted; he cannot share with himself, for it is taken from the reciprocal form, which requires the participation of two or more; and if the judge rules on the lawfulness of the waqf of shares, the disagreement is removed; then if both request the judge's division, Abu Hanifa says: there is no division, and he orders them to mutual accommodation; the two companions say: there is division if a part is owned and a part waqf; if the whole is waqf and its beneficiaries wish to divide it, there is no division, to the point that if an estate is endowed upon his two sons and one of them wishes to divide it so as to give his share as sharecropping, it is not permitted: the custodian grants the whole as sharecropping, and that is not up to the beneficiaries but to the custodian; if the endower divided it among the beneficiaries so that each cultivate his share with the crop going to him to the exclusion of his partners, it depends on their consent; and if the people of the endowment do that among themselves, it is permitted, and the objector may afterwards annul it.
Whoever makes a waqf of houses for exploitation has no right to house anyone in them without rent; if he makes a waqf of his house for his two sons' residence and one requests cohabitation while the other refuses, each resides in one half without cohabitation (al-Is'af, p. 25). The common ownership that bars division in what admits division bars the waqf only according to Muhammad if it occurs at the time of taking possession, not at the time of the contract.
In the Is'af: if the land is between two men and they together make it, as a whole, a charity, a waqf on the poor, delivering it together to a single custodian, it is permitted by consensus, for the bar according to Muhammad is common ownership at the time of possession, not at the time of the contract, and it does not exist here, both being together; if each makes a waqf of his share upon the same category, they appoint one custodian and deliver together, it is permitted by consensus, common ownership at the time of possession being absent; if they differ in the category and custodian of their waqfs but the time of delivery is one, or if each says to his custodian "take my share together with my companion's share", that too is permitted by consensus, for they become like a single manager, unlike one who makes the waqf alone and delivers to his custodian alone: the waqf is not valid according to Muhammad, common ownership existing at the time of the contract and being possible at the time of possession.
If he says "I have made a waqf of my share of this land, it is its third", and it turns out to be more, his whole share is waqf, like the bequest, unlike sale, where the surplus belongs to the seller (al-Is'af, p. 26; see Hashiyat Ibn Abidin 4/348; Durrar al-Hukkam 6/119; al-Hindiyya 2/366).
The fuqaha laid upon the object of the waqf several conditions, which are the following. The first: that the substance be specific. The majority of the fuqaha, the Hanafis, the Shafi'is and the Hanbalis, affirmed that the substance endowed is required to be specific, known, free of ambiguity: if he makes a waqf of an unspecified slave or an unspecified house, the waqf is void, for the waqf is the annulment of the meaning of ownership in the property, so it is not valid in what is not specific, like emancipation; likewise if he makes a waqf of one of his two houses or one of his two slaves, for the waqf is a transfer of ownership toward drawing near to Allah, so it is not valid in what is not specific, like the gift.
Al-Bahuti, may Allah have mercy on him, said: if the specified thing is unknown, like endowing a house he has never seen, Abu al-Abbas said: barring that is far-fetched, and so is his gift (Kashshaf al-Qina 4/279; see al-Kafi 2/449; Sharh al-Kabir 6/191; al-Zurkashi's commentary 2/104; al-Mubdi 5/318; Sharh Muntaha al-Iradat 4/335; Rawdat al-Talibin 4/133; Mughni al-Muhtaj 3/453; Tuhfat al-Muhtaj 7/446; Nihayat al-Muhtaj 5/412; al-Dibaj 2/516).
The Hanafis said: the object of the waqf requires the absence of ignorance, that is, that it be known: if he says "I have made a waqf of something of this land" without naming it, it is void, for "something" covers the little and the much; if he specifies afterwards, he may specify an insignificant thing not usually endowed. If he says "I have made a waqf of all my share of this house and this land" without naming the shares, it is permitted by istihsan if the endower stands by his declaration; if he disputes it and evidence testifies to the waqf and to the amount of his share, this is called the judge's ruling of the waqf; if the witnesses attest his declaration of the waqf without knowing the amount of his share, the judge obliges him to state the amount of his share, and his word is followed; if he dies, his heir stands in his place: what he acknowledged binds him, and the judge rules accordingly; then if more is found with him, the judge rules accordingly as well. If he says "I have made a waqf of this land or this land", indicating by a gesture, it is void for ignorance.
If he says "I make my share of this house a waqf, it is a third of the whole house", and it turns out to be half, the whole half is waqf (al-Is'af, p. 27; Bahr al-Ra'iq 5/203; Ibn Abidin 4/341). As for the Malikis, al-Dardir, may Allah have mercy on him, said: the waqf of an owned property is valid, even in suspended form, like "if I acquire the house of so-and-so, it is a waqf". Al-Dasuqi, may Allah have mercy on him, said: his words "like: if I acquire": consider whether the suspension requires the determination of the thing suspended upon, as the commentator mentioned, or whether included is what some endowers do who write in their waqf deed: "every real estate or other property that comes to me and enters my ownership is attached to my waqf"; such is what has been established.
I say: what is taken from al-Rassa's words in the Sharh al-Hudud is that, if the suspension is general, the waqf does not bind like divorce; the author's word "owned" therefore means certainly or presumptively, as in suspension, unless it is general: "everything I shall own in the future is a waqf" (Hashiyat al-Dasuqi with the Sharh al-Kabir 4/455).
Most of the fuqaha laid upon the object of the waqf the condition that it be of what yields benefit while its substance remains: the waqf of food, of dirhams and of dinars is therefore not valid. It is detailed in two questions. The first is the waqf of food, drink and perfumes. The fuqaha differed over the ruling of the waqf of food, drink and perfumes, and of all that yields no benefit except with the disappearance of its substance: is it valid or not?
The majority of the fuqaha, the Hanafis, the Malikis according to one view, the Shafi'is and the Hanbalis, required of the object of the waqf that it be of what yields benefit while its substance remains: the waqf of what is consumed, like food and drink, is not valid, water excepted, for its benefit lies in its consumption, whereas the trait of the waqf is the substance's remaining, the waqf being the retention of the root and the devoting of the fruit; what yields benefit only through destruction does not bear it (Sharh Fath al-Qadir 6/219; Bahr al-Ra'iq 5/219; al-Dhakhira 315; Jami' al-Ummahat 448; Sharh Mayara 2/229; Rawdat al-Talibin 4/135; Mughni al-Muhtaj 3/454; Tuhfat al-Muhtaj 7/448; Nihayat al-Muhtaj 5/414; Kanz al-Raghibin 3/240; al-Najm al-Wahhaj 5/457; al-Dibaj 2/516; al-Ifsah 2/46; al-Mughni 5/373; Sharh al-Kabir 6/191). The Hanafis said: the waqf of what yields benefit only through destruction, like what is eaten and drunk, is not permitted.
They said: if he makes a waqf of a cow on condition that what comes from its milk and butter be given to the travelers' children, Muhammad said: if that is the usage in a place where it prevailed in their endowments, I hope it may be permitted. According to al-Ansari, who was among the companions of Zufar, concerning one who makes a waqf of food, or of what is measured or weighed: it is permitted; it will be said: how? He said: what is measured and what is weighed is sold, and its price is placed as a mudaraba loan or as merchandise; on this pattern, if one makes a waqf of a bushel of wheat on condition that it be lent to the poor who have no seed, that they may sow it for themselves, then that the amount of the loan be taken from them after harvest, then that it be lent to other poor, in perpetuity, along this path, it must be permitted (Sharh Fath al-Qadir 6/219; Bahr al-Ra'iq 5/219; Majma' al-Anhar 2/580; Durrar al-Hukkam 6/131; al-Fatawa al-Hindiyya 2/362).
Ibn Abidin, may Allah have mercy on him, said: thereby appears the validity of what the author mentioned of attaching the cow to the customary movable according to Muhammad's view, the one upon which fatwa is given; they transmitted it from Zufar only because it was not customary then, and because he was the one who initiated it. In the Nahr: the implication of what passed from Muhammad is the prohibition, that is, of the waqf of wheat in the Egyptian lands, on account of the absence of wholesale usage.
He then added an inquiry into transactions and custom: transactions set aside the analogy, which bore on the invalidity of the waqf of the movable, for perpetuity is among the conditions of the waqf and the movable does not last; transactions, as said in the Bahr citing the Tahrir, are what is most in use; in al-Biri's commentary, citing the Mabsut: what is established by custom is like what is established by text; the full detail of this is in our epistle titled "Exposing Custom on the Foundation of Some Rulings Upon Custom"; the apparent of the cow's question is the consideration of the nascent custom, without requiring it to date from the companions' era; likewise the apparent of what we reported of some shaykhs adding things that became subject to transactions; on this basis the apparent is the consideration of custom in the place or the age where it spread: the waqf of dirhams is customary in the lands of the Romans, not among us; the waqf of the axe and the adze was customary in the ancients' time, and we have not heard of it in our time: the apparent is that it is not valid today; and even if it occurs rarely it is not considered, since transactions are what is most in use; ponder this (Ibn Abidin 4/364).
The Shafi'is said: the waqf of what yields no lasting benefit, like what is eaten and the perfumes that are breathed, is not valid, because of their quick decay and because their benefit lies in their destruction; as for the cultivated aromatic plant, its waqf is valid for smelling, for it lasts a while and holds another benefit: strolling. Al-Khwarizmi and Ibn al-Salah said: valid is the waqf of the perfume whose benefit is permanent, like musk, ambergris and aloeswood; any fresh, tender, sweet-smelling plant is called an aromatic, so the rose enters it for its scent (Rawdat al-Talibin 4/135; Mughni al-Muhtaj 3/454; Tuhfat al-Muhtaj 7/448; Nihayat al-Muhtaj 5/414; Kanz al-Raghibin 3/240; al-Najm al-Wahhaj 5/457; al-Dibaj 2/516).
The Hanbalis said: the waqf of what is eaten and drunk, other than water, is not valid, nor that of oil or wax, for what yields benefit only through its destruction does not bear the waqf: permanence is intended, that it may be an ongoing charity, and this is not found in what does not remain; the waqf is the retention of the root and the devoting of the fruit, and what yields benefit only through destruction does not bear it. As for water, its waqf is valid. Al-Mardawi, may Allah have mercy on him, said: his words "what is eaten and the perfumes" mean that their waqf is not valid; this is sound, it is the school and the companions follow it. The shaykh Taqi al-Din, may Allah have mercy on him, said: if he gives an oil in charity to a mosque to be burned in it, it is permitted: it falls under the waqf's chapter, and calling it a waqf in the sense that it is endowed upon that path and benefits nothing else, the language does not reject, and it runs through the law.
He also said: valid is the waqf of the perfume for the people of the mosque to smell; the Kaaba's perfume carries the ruling of its clothing; it is thus known that perfuming is an intended benefit, though the duration of perfuming may be long or short, with no effect. Al-Harithi said: what leaves a lasting trace, like the nidd, a famous essence close to ambergris, the sandalwood, the best of which is red or white, and the pieces of camphor breathed by the sick: their waqf upon that is valid, for their remaining together with the benefit; their hire for that being valid, their waqf is valid too. This does not enter the author's words, and the apparent is that it falls under what is agreed upon in validity, the waqf's conditions being present (al-Insaf 7/12; see al-Mughni 5/373; Sharh al-Kabir 6/191; al-Mubdi 5/318; Kashshaf al-Qina 4/298; al-Rawd al-Murbi 2/170; Sharh Muntaha al-Iradat 4/335; Manar al-Sabil 2/323).
As for the Malikis, the sound position of the school is that the waqf of food that keeps for a long time is permitted: whoever needs it borrows it and returns its equivalent, and the return of the equivalent of what one benefited from stands as the substance's permanence; as for food that does not keep long, spoiling with delay, its waqf is not permitted by consensus (Sharh al-Kabir with Hashiyat al-Dasuqi 5/457; Hashiyat al-Adawi 2/343; Mawahib al-Jalil 7/481; al-Sawi's hashiya on the Sharh al-Saghir 9/133).