Islamic Fiqh > Endowments (waqf) and property > Conditions for the validity of a waqf > Leasing the waqf at a rent below the fair rental value
Contents
Updated on 25 September 2026 at 6:57 PM
This part belongs to the section: All parts.
This fifth part on the pillars of the waqf deals with leasing the waqf below its fair rental value, the effects of a rent increase after the contract, the measures to take when the waqf becomes unusable, the restoration of the waqf and its priority over other expenses, the source of the expenses, then the sale and exchange of the waqf, the consolidation of endowments, and expropriation for the public interest. The positions of the four schools are cited with their classical references.
The scholars agree that it is invalid to lease a waqf at a rent below the fair rental value (ujrat al-mithl, the rent of an equivalent property) without need, when the lessor is not himself the beneficiary of the waqf. The jurists have differed, however, on the status of such a lease: is the contract valid and does the supervisor (nadir) guarantee the difference, is the contract void, or does the tenant guarantee the full fair rental value? The schools have ruled differently.
The Hanafis elaborate: the waqf should not be leased below the fair rental value, whether the supervisor is himself the beneficiary or not, because of the harm inflicted on the waqf by this low rent, because the supervisor might die (to the detriment of the beneficiaries who come after him), and because the waqf may suffer right away if it needs restoration. Exception: if the shortfall is slight, that is, what people customarily tolerate (they accept it and do not count it as undervaluation), the lease is permitted; but if the undervaluation is flagrant, the lease is not permitted, except in case of necessity, where leasing below the fair value becomes allowed. Such is the case: a) when no one will rent the property except at that reduced price; b) when the waqf must meet an equivalent obligation, or carries a debt, or when a "marsad" weighs on the house: the marsad is a debt on the waqf that the tenant pays toward the restoration of the house, when no liquid funds are available in the waqf. Outside these cases, if the supervisor rents the property without reaching the fair value, the contract is valid and the tenant owes the full fair rental value according to the view adopted for fatwa (Ghamz 'uyun al-basa'ir, 2/227; al-Ikhtiyar, 3/56; Ibn Abidin, 4/402; al-Is'af, p. 65).
The Malikis say: if the supervisor leases below the fair value, he guarantees the full amount of it if he is solvent; otherwise the liability falls on the tenant, because he is the direct actor, and whoever bears a liability does not shift it to another, as long as the tenant did not know the rent was below the fair value. If both are guarantors, the first is taken first. The fair rental value is what the experts (people of the craft) state. If the waqf was leased without reaching the fair value and another then offers the sitting tenant what would bring the rent to the level of the fair value, the first lease is rescinded in favor of the second offer, whether the overbidder was present or absent at the time of the first lease. If the one who is outbid asks to remain and to pay the difference, this is not granted to him, unless he in turn outbids the overbidder, provided his offer has not reached the fair value; if it does reach it, the first overbidder's offer is no longer considered.
It has also been said: if the occupant commits to paying the increase, he has priority, and a later overbid is no longer considered; the occupant is preferred because a contract was concluded with him in principle, as long as another does not offer more; otherwise, the one who offers more is preferred, because of the flaw in the contract, as long as the occupant does not commit to that increase. Al-'Adawi (may Allah have mercy on him) said: "This is what appears most sound, for it combines the two approaches in principle. After writing this book of mine I found under my hand the text of his saying: 'the lease is not rescinded', that is, when the contract has indeed taken place. As for the one who offers the fair value when another offers more, the increase is accepted without doubt, for no contract had yet occurred" (Hashiyat al-'Adawi 'ala al-Kharshi, 7/99; Fath al-'Ali al-Malik, 4/479; al-Sharh al-kabir with the hashiya of al-Dasuqi, 5/486; Tahbir al-Mukhtasar, 4/666).
As for the Shafi'is and Hanbalis, they distinguished between leasing the waqf property to the beneficiary himself and leasing it to another. If he leases it to the beneficiary below the fair value, the contract is definitively valid among the Shafi'is and Hanbalis according to one of the two views; the other view: it is not permitted. If the property is a waqf for others, it is not valid to lease it below the fair value: if the supervisor does so, the contract is not valid according to the Shafi'is and Hanbalis in one view, because of the absence of authorization in this matter.
The Hanbalis hold: the lease contract is valid, but the supervisor guarantees the shortfall that custom does not tolerate, because he disposes of another's property gratuitously; his guarantee of the shortfall caused by his contract resembles the case of the agent (wakil) who sells or leases without fixing the price or the fair value (Mughni al-muhtaj, 3/484; al-Insaf, 7/73; Sharh Muntaha al-iradat, 4/363; Matalib uli al-nuha, 4/340).
When the rent increases after the contract: the jurists examined the case where the supervisor leased the waqf property at the fair value, then a claimant offering more appears, or the fair value itself rises during the term of the lease: is the lease rescinded or not? The majority of jurists (the Hanafis in one narration, which is that of the "Fatawa Samarqand", followed in "al-Tajnis" by the author of "al-Hidaya" and in "al-Is'af", as well as the Malikis, the Shafi'is according to the sounder view, and the Hanbalis) hold that if the contract was valid and concluded at the fair value at the time of conclusion, it is not rescinded by the later increase: it is a binding contract, and the reference is the fair value at the time of the contract, so that a later change causes no harm; moreover, the lease was concluded with full satisfaction (ghibta) at the time of the contract, resembling the guardian who sells a minor's property and the market prices then rise, or the appearance of a claimant offering more (Ibn Abidin, 4/404; Sharh Mukhtasar Khalil by al-Kharshi, 7/98; al-Sharh al-kabir with the hashiya of al-Dasuqi, 5/486; al-Taj wa-l-iklil, 4/590; Hashiyat al-'Adawi, 2/350; Tahbir al-Mukhtasar, 4/666; Hashiyat al-Sawi, 9/77; Mughni al-muhtaj, 3/484; Nihayat al-muhtaj, 5/462; Kunz al-raghibin, 3/268-269; al-Najm al-wahaj, 5/527; al-Dibaj, 2/536; al-Insaf, 7/73; Matalib uli al-nuha, 4/340).
Against the sounder view among the Shafi'is: the lease is rescinded if the increase is real and the claimant is trustworthy; for it appears that the lease was concluded against future full satisfaction: the valuation of benefits over a long duration is only valid if the existing situation remains that of the time of valuation, and this valuation is not like the valuation of a present commodity. Ibn al-Salah inclined toward this view, and al-Istakhri affirmed it categorically. But al-Adhra'i said: "This opinion is very problematic. What must be considered is the fair rental value toward which demand tends at the time of the contract, for the whole term of the lease, disregarding whatever may change; otherwise the door to leasing waqfs would be closed and people would be discouraged from it, whereas this world never remains in a single state."
A third view: if the lease is one year or less, the contract is not affected; if it exceeds a year, the increase is rejected. Al-Darimi affirmed this categorically; it was justified by saying that the seasons complete within a year and needs change. The locus of disagreement is when it is the supervisor who leases; if it is the beneficiary himself, by virtue of his right of ownership, who leases, the lease is definitively valid and the later increase does not affect it (Mughni al-muhtaj, 3/484; Nihayat al-muhtaj, 5/462; Kunz al-raghibin, 3/268-269; al-Najm al-wahaj, 5/527; al-Dibaj, 2/536).
The Hanafis, according to the sounder view adopted for fatwa, teach: if after the contract the rent exceeds the fair value at the time of the contract by a flagrant amount that people do not tolerate, the contract is rescinded and re-concluded with the increase with the first tenant; that is, the lease is renewed at the higher rent, for leasing takes place gradually, and the supervisor must watch over the waqf. Ibn Abidin said: "It appears that the tenant's acceptance of the increase suffices, without need to renew the contract." The way for the judge to know the increase: to gather two perceptive and trustworthy men; their joint testimony is taken according to Muhammad, while according to the other two, the testimony of one suffices.
The Hanafis attached several conditions to this rule:
Ibn Abidin (may Allah have mercy on him) said: "The tenant of waqf land who builds on it, and then the fair rental value rises flagrantly: either the increase is due to the development and construction, or it is due to the rise in the value of the land itself. If it is due to the construction, it does not bind him, for it is the rent of his own development and building, provided the building is his; but if the construction belongs to the waqf, for example if he built at the supervisor's order so that the building reverts to the waqf, the increase binds him. If it is due to the rise in the value of the land itself, the increase binds the tenant" (Ibn Abidin, 4/391).
If the first tenant accepts the increase and his lease was valid, he has priority; otherwise, if the lease was invalid or he refuses the increase, he has no right, and the property is leased to another if the land lies fallow. Otherwise, the increase is owed by the first tenant from the time it occurred until the harvest, because his cultivation prevents leasing to others; once the harvest is gathered, the lease is rescinded and the property leased to another. The same applies if he has built or planted, but in that case the lease continues until the contract expires, for the building and the planting have no known end, unlike the crop. At the expiration of the contract, if he refuses the increase, he is ordered to demolish the building and pull up the planting, and the property is leased to another.
Ibn Abidin (may Allah have mercy on him) said: "It is known from what we have established that their saying 'the first tenant has priority' applies only when the fair value rises during the term of the lease, before the expiry of his rent, and he accepted the increase. Once his term expires, he is no longer preferred, unless he holds the right of continued possession, called kiradar, as we expounded at length regarding land developed by building: he has the right to remain paying the fair value, to ward off harm from himself without harm to the waqf; this is an exception to the general formulations of the texts and commentaries, which require demolition and surrender after the expiry of the lease. That is why he has more right to the lease than another. As for the case of the fair value rising during the term of the lease: his lease term is running and has not ended, and during it there occurred a ground warranting rescission, namely the increase; if he accepts it and consents to pay it, he is preferred, because that ground disappeared during his term: one cannot therefore rescind his lease and lease to another, but it is leased to him with the mentioned increase until the end of his term; afterwards, the supervisor of the waqf leases it to whomever he wishes, even if the first tenant accepted the increase, since the cause of priority, namely the continuation of his lease, has ceased, unless he holds the right of continued possession, in which case he is preferred even after the expiry of the term, for that other reason, as you know. From all this it appears that the tenant of waqf land, or of any other property such as a shop or house, who does not hold the right of continued possession (kiradar), has no priority in leasing after the expiry of his lease, whether the fair value rose or not, and whether he accepted the increase or not; this contradicts what our contemporaries understand, who say he is preferred in all circumstances, call him 'the one with the hand' (dhu al-yad), and claim that as soon as he accepts the increase that occurred, the property cannot be leased to another; they judge thus and give fatwas accordingly, even though this contradicts what the books of the school agree upon: texts, commentaries and fatwas. Their only argument is the generality of the author's wording at this point, and that reading is plainly wrong: it concerns, as their own words clearly show, the rise in the fair value before the end of the lease term, and no one stated the rule in absolute terms. Nor can the corruption and loss of waqfs resulting from this be hidden: it entails keeping waqf land in the hands of a single tenant for a long period, leading him to claim ownership of it, even though they forbade lengthening the term of leases precisely out of fear of that. This is the summary of what I set out in my epistle entitled 'Tahrir al-'ibara fi man huwa awwala bi-l-ijara' (Clarifying the wording: who has priority in leasing); on consulting it you will see the wonder of wonders and stand on the truth. Praise be to Allah, the Bountiful Bestower" (Ibn Abidin, 4/404-405).
Chapter on the measures to take when the waqf property ceases to function. When a waqf ceases to yield its benefits, three situations are possible: either it needs restoration, or it must be sold and replaced by another property, or it reverts to the ownership of the founder. Each school details these cases with divergences.
Restoration (al-i'mara) denotes what maintains a place, spending on it for its purpose until it remains in the state that was its own, without increase, unless that has been stipulated (Ibn Abidin, 4/366). The restoration of the waqf takes precedence over paying its revenue to its beneficiaries: it takes priority, as being "even more entitled", over spending toward any channel of charity, whenever delaying its restoration and repair causes evident harm to the waqf property. One must begin by restoring the waqf from its revenue even if the founder did not stipulate it.
The Hanafis say: if the waqf is assigned to a designated beneficiary, the restoration owed is only that which keeps the property in the state for which it was assigned; if it falls into ruin, it is rebuilt within those limits. Any addition is not owed: it can be spent on restoration only with the beneficiary's consent. That is why whitewashing or painting the walls red from the waqf's funds is prevented unless the founder did it himself; if he did, it is not prevented. If the waqf is assigned to the poor, the same applies according to the sounder view: one does not exceed the original state; others allow it, but the first view is sounder, for it would amount to diverting the right of the poor to something other than what is due to them. Restoration must not be delayed when needed, to the point of cutting the shares of the beneficiaries, unless evident harm is feared; in that case it is given priority (Sharh Fath al-Qadir, 6/222-223; Hashiyat Ibn Abidin, 4/367).
The restoration of the waqf is achieved by one of two things:
The Hanafis say: one begins restoring the waqf from its revenue, spending it for its purpose until it remains in its state, without increase unless stipulated. If the waqf is a tree whose death is feared, the supervisor may buy a sapling from the revenue and plant it, for the tree decays over time. Likewise, if the land has become a salt marsh (sabkha) in which nothing grows, he may restore it. Included in this restoration is the settlement of the "marsad", that is, the debt on the house: it takes precedence over paying the beneficiaries. Ibn Abidin (may Allah have mercy on him) said: "This is a noble benefit that few have noticed. The marsad is a debt on the waqf because of the necessity of maintaining it; if money is found in the waqf, even a little each year, until the ownership of the waqf is discharged and it can be rented at its fair value, the supervisor is bound to do so. There is no might nor power except with Allah, the Most High, the Immense." Maintenance from the revenue applies if the ruin was not caused by anyone; if someone destroyed the property, he is liable. The restoration of a waqf assigned to a designated beneficiary is limited to the state in which the founder made it waqf, as mentioned above (Hashiyat Ibn Abidin, 4/467-468; Sharh Fath al-Qadir, 6/222-223).
The Malikis say: one begins with the revenue of the waqf for its repair and upkeep, even if the founder stipulated otherwise; his stipulation is void, for it would lead to the nullity of the very foundation of the waqf. One therefore begins with the restoration and repair of the waqf in order to preserve its substance and the permanence of its benefit (Hashiyat al-Dasuqi 'ala al-Sharh al-kabir, 5/478; Sharh al-Kharshi, 7/93-94; Tahbir al-Mukhtasar, 4/656).
The Shafi'is say: the revenue of a mosque waqf is spent, whether the waqf is absolute or assigned to its restoration, on solid building and careful plastering, staircases, brooms for sweeping, mats for removing dust, a canopy protecting the wooden door from rain and the like as long as it does not harm passers-by, and the wage of a custodian (qayyim), excluding the muezzin, the imam, the mats and the oil; for the custodian preserves the restoration, unlike the others.
If the waqf is assigned to the interests of the mosque, its revenue is devoted to the items mentioned, and not to ornament or engraving; to the extent that even if funds had been endowed for that, it would not be valid. What was assigned to the straw of the mats is not spent on the straw of the roof, nor the reverse (Mughni al-muhtaj, 3/480; Asna al-matalib, 2/476; Hawashi al-Shirwani 'ala Tuhfat al-muhtaj, 7/535).
The majority of jurists (the Hanafis, Malikis and Shafi'is) stated explicitly that the restoration of the waqf precedes all other expenses, whether the founder stipulated it or not. The Hanafis say: one begins with the revenue of the waqf for its restoration, spending it for its purpose until it remains in its state, without increase unless stipulated. Once the restoration is complete and revenue remains, one begins with what is closest to restoration and most general for the interest: the "immaterial" restoration (al-i'mara al-ma'nawiyya), that is, the fulfillment of its offices: the imam for the mosque and the teacher for the school, who are paid enough to meet their needs, not the remuneration stipulated for them; then the lamp and the carpets, and so on to the last interests, that is, the interests of the mosque: these include the muezzin and the supervisor, and the Friday preacher falls under the imam, for he is the imam of the cathedral mosque; this is when the posts were not designated by name. If the waqf is assigned to something specific, it is spent on it after the restoration of the building.
Ibn Abidin (may Allah have mercy on him) said: "In sum, what has been established and clarified is that one begins with the necessary maintenance, to the point that if it absorbs all the revenue, all of it is devoted to it, and nothing is given to anyone, not even an imam or a muezzin. If anything remains after the necessary maintenance, it is given to what suffers evident harm from interruption. The same applies to non-necessary maintenance, that is, what would not lead to the ruin of the property if postponed to the revenue of the following year: one proceeds from the more important to the less; then those not exposed to interruption are paid the remuneration stipulated for them if it suffices for their needs; otherwise it is increased or decreased. The one whose interruption causes no evident harm receives nothing at all as long as the waqf needs maintenance, even if he performs his function. And whoever among the beneficiaries works on the restoration receives the wage of his work, not the stipulated remuneration nor the amount of subsistence. This is the furthest I could go in clarifying this station where understandings have stumbled" (Ibn Abidin, 4/366-367, 370; al-Bahr al-ra'iq, 5/230-231).
Al-Kasani (may Allah have mercy on him) said: "One must begin by devoting the revenue to the interests of the waqf: its restoration, the repair of its weakened building and all its indispensable expenses, whether the founder stipulated it or not; for the waqf is an ongoing charity (sadaqa jariya) in the way of Allah, and it only bears fruit by this path" (Bada'i' al-sana'i', 6/221).
The Malikis say: one begins with the revenue of the waqf for its repair and upkeep, even if the founder stipulated otherwise; his stipulation is void, for it would lead to the nullity of the very foundation of the waqf. The Shafi'is say: the restoration of the waqf property takes precedence over the right of the beneficiaries, for that preserves the waqf (Mughni al-muhtaj, 3/480; Asna al-matalib, 2/476; Hawashi al-Shirwani, 7/535).
The jurists differed on the source from which the expenses of maintaining the waqf are drawn: is it its revenue? is the founder's condition followed? or does the burden fall on the beneficiaries? The scholars distinguished between a waqf assigned to a designated beneficiary and one assigned to non-designated beneficiaries.
First situation: the waqf for a designated beneficiary, as when one makes a waqf of property for a specific man. The Hanafis hold that the expenses of maintaining the waqf, the repair of its weakened building and all its indispensable costs are drawn from the property of the designated beneficiary. They say: if property has been made waqf for a man in its substance, for example if someone made his house waqf for his son's residence, the restoration falls on the one holding the right of residence, and he is not compelled; for the benefit is his, so the burden is his, in accordance with the saying of the Prophet (pbuh):
Revenue goes together with liability.Reported by Abu Dawud
like the slave bequeathed for his service, whose upkeep falls on the legatee of the service; the same applies here. Nothing is taken from the revenue, for the beneficiary is a determinate person who can be pursued. He is entitled to restoration only to the extent that it keeps the waqf in the state for which it was assigned; if it falls into ruin, it is rebuilt within those limits, for it is as a determinate property that its revenue was directed to the beneficiary. No addition is therefore owed by him, while the revenue is owed to him: it is not permitted to spend it elsewhere without his consent.
If he refuses the restoration or is unable to do it (through poverty), the judge leases the property and restores it from the rent; for preserving the waqf is obligatory, and it is only preserved through restoration. If he refuses or is unable, the judge substitutes for him in its preservation by leasing it, like the slave or the animal whose owner refuses to spend on them and on whom the judge spends by leasing. A lease concluded by the resident himself is not valid: only a lease by the supervisor or the judge is.
When the judge has restored the property, he returns it to the one holding the residence right; for that safeguards both rights: the founder's right and the resident's right. Indeed, if the judge leased it and restored it from its rent, the resident's right would be suspended for a time; and if it were not restored, the residence would vanish entirely: the first course is therefore preferable. The recalcitrant beneficiary is not compelled to restore, for that would mean destroying his property; he resembles the holder of seed who refuses in sharecropping (muzara'a), and his refusal does not count as consent to the annulment of his right. If the beneficiary dies, the expense is drawn from the revenue (Bada'i' al-sana'i', 6/221; al-Hidaya sharh al-Bidaya, 3/17; al-'Inaya, 8/444, 446; Sharh Fath al-Qadir, 6/222; al-Jawhara al-nira, 4/108-109; al-Lubab, 1/623-624).
The Malikis hold that the expense of maintaining the waqf is drawn from its revenue, whether the waqf is for a designated beneficiary or not; and if the founder stipulated that the repair falls on the beneficiary, the stipulation is not valid. They say: if the founder stipulated the repair of the waqf as the beneficiary's burden, as when someone makes a house waqf for a man, his children and his children's children, stipulating that the one for whom the waqf is made repairs from his own property whatever decays, the condition is not valid; for this is an unknown rent, since no one knows how much the repair will cost; the waqf is valid, because the nullity attaches to the condition and not to the waqf, and because the property has gone in the way of Allah; the restoration and repair are therefore done from the revenue of the waqf.
Whoever makes land waqf assigned to an exploitation and stipulates that this exploitation be drawn from what was assigned to him (muhabbas) and not from its revenue: the condition is void and the waqf valid. But if he stipulates that the restoration come from the property's revenue, and likewise the exploitation, that is permitted, and it is the well-known opinion. It has been said: it is not permitted. If he stipulates that spending come from what the revenue yields, apparently there is no disagreement on its permissibility.
If the founder stipulates not to begin by repairing the cracks of the waqf, or to abandon spending on an animal and devote the revenue to people's needs, it is not permitted to follow that condition; for it would lead to the nullity of the waqf in its foundation: the waqf is valid and the condition void. The same applies to any condition leading to that: it is not honored; one begins rather with the restoration of the waqf, its repair and the expenses due to it, for that secures the permanence of its substance and the continuity of its benefit (al-Sharh al-kabir with the hashiya of al-Dasuqi, 5/477; al-Taj wa-l-iklil, 4/580; Sharh Mukhtasar Khalil, 7/93; Tahbir al-Mukhtasar, 4/656).
The Shafi'is and Hanbalis hold that the expense of a waqf assigned to a particular category follows the founder's condition, with elaborations among them. The Shafi'is say: the expenses of the waqf, its equipment and its restoration come from where the founder stipulated them: his own property or the property of the waqf; failing that, from the benefits of the waqf, such as the slave's earnings and the estate's revenue. If the benefits cease, the expense and equipment costs fall on the public treasury (bayt al-mal); as for restoration, it is not obligatory from it (al-Iqna', 2/364; Mughni al-muhtaj, 3/484; Hawashi al-Shirwani, 7/545; I'anat al-talibin, 3/348).
The Hanbalis say: the founder's condition is followed for the restoration of the waqf; if he specified that the expense come from its revenue or from elsewhere, it is applied, returning to his condition; for when his condition was followed regarding the destination of the property, following his condition for expenses becomes obligatory. If he specified nothing, and the waqf is for one or two designated beneficiaries, and the waqf has a "spirit" (such as slaves and horses), it is spent on from its revenue; for the waqf requires the endowment of the principal and the liberation of the benefit, and that is only obtained by spending on it: that is part of its necessity.
If it has no revenue, because of weakness for instance, its expense falls on the designated beneficiary, for it is his property; and it may be held to be obligatory from the public treasury. If spending on the beneficiary is impossible (through poverty, absence or otherwise), the waqf is sold and its price is spent on another property that will be waqf, because of necessity, if leasing is not possible; if it is possible, it is rented to the extent of its expenses, in order to ward off the necessity that would require the sale.
If it has no revenue because its nature does not allow leasing, like the slave made waqf for service and the horse made waqf for raiding or riding, it is hired out to the extent of its expenses, to ward off necessity. Likewise, if a public lodge (khan musabbal) needs repair, or a waqf house for pilgrims, raiders or travelers, it is hired out to the extent of what is needed for its restoration, because of necessity (al-Sharh al-kabir, 6/214; al-Insaf, 7/70, 73; Kashshaf al-Qina', 4/4, 321, 323; Sharh Muntaha al-iradat, 4/364-365; Matalib uli al-nuha, 4/341-342).
Second situation: the waqf for non-designated beneficiaries, such as the poor and needy. The jurists differed: does the maintenance expense come from the revenue of the waqf or from the public treasury of the Muslims? The Hanafis and Malikis hold that it comes from the revenue of the waqf. The Hanafis say: whether the founder stipulated it or not; for the waqf is an ongoing charity in the way of Allah, and it only bears fruit by this path. This applies when the waqf is for a general category like the poor: the revenue is the closest of their funds to the waqf, so it is devoted to its maintenance; for the poor cannot be reached nor compelled, because of their dispersal and hardship, and this revenue is the closest of their funds: the restoration is therefore owed from it (Bada'i' al-sana'i', 6/221; al-Hidaya sharh al-Bidaya, 3/17; al-'Inaya, 8/444, 446; Sharh Fath al-Qadir, 6/222; al-Jawhara al-nira, 4/108-109; al-Lubab, 1/623-624).
The Malikis say: spending on the restoration of the waqf comes from its revenue; and if the founder stipulated the repair of the waqf as the beneficiary's burden, it is not valid, for the reasons already given: an unknown rent, a valid waqf because it went in the way of Allah, repair from the revenue. However, they add: if the waqf is a horse for raiding or for the ribat, and there is an accessible public treasury, it is spent on from the public treasury, without obligating either the author of the endowment or those for whom it was made (the fighters and the people of the ribats). If there is no public treasury, the horse is sold and its price is replaced by weapons or something else that requires no upkeep; it was replaced with weapons because they are closest to the horse in benefit, and closest to the founder's aim (al-Sharh al-kabir with the hashiya of al-Dasuqi, 5/477; al-Taj wa-l-iklil, 4/580; Sharh Mukhtasar Khalil, 7/93; Tahbir al-Mukhtasar, 4/656-657).
The Shafi'is say (as stated above): the expenses of the waqf, its equipment and its restoration come from where the founder stipulated them: his own property or the property of the waqf; failing that, from the benefits of the waqf; if the benefits cease, the expense and equipment costs fall on the public treasury, but restoration is not obligatory from it (al-Iqna', 2/364; Mughni al-muhtaj, 3/484; Hawashi al-Shirwani, 7/545; I'anat al-talibin, 3/348).
The Hanbalis say: the founder's condition is followed. If he specified nothing, and the waqf is for non-designated beneficiaries such as the needy or jurists, and the waqf has a "spirit" (slaves, horses), its expense falls on the public treasury, in the absence of a designated owner: it is like the free man. If spending from the public treasury is impossible, it is sold, as mentioned previously for the waqf with a designated beneficiary. If the waqf is property without a "spirit", such as an estate, weapons, effects or books, its restoration is not obligatory on anyone, unless the founder stipulated it.
If he stipulated it, it is applied absolutely: whether he stipulated beginning with the restoration or delaying it, his stipulation is acted upon; but if he stipulated the priority of the beneficiary, that is applied as long as it does not lead to shutdown; if it does, the restoration is given priority, to preserve the foundation of the waqf. If the founder specified nothing (neither beginning nor delay), the restoration precedes the holders of stipends, as long as that does not lead to the shutdown of the waqf's interests; then restoration and the stipend holders are combined as far as possible, so that neither the waqf nor its interests cease. The shaykh al-islam Ibn Taymiyya (may Allah have mercy on him) said: "Combining the two according to capacity is preferable, and may even become obligatory" (Majmu' al-fatawa, 31/210).
He was asked about mosques and a cathedral mosque that need restoration, while fixed salaries are assigned to office holders and the revenue does not suffice for it: is it permitted to pay any of them before the necessary restoration? to whom is it permitted to pay? and what should be done with the surplus revenue: hoard it or buy real estate with it? He answered: "Praise be to Allah. If combining the two interests is possible, by devoting what must be devoted to the necessity of the holders and the accomplishment of the work incumbent on them, and restoring with the rest, this is what is prescribed. If part of the restoration is delayed to an extent that causes no harm, that delay causes no prejudice: restoration is obligatory, and the works that cannot be done without sustenance are obligatory, as is meeting needs; when the obligations are established, that is preferable to abandoning some of them. Those without whom the restoration cannot be done, among the workers and the accountants, are part of the restoration. As for the surplus of revenue over the stipulated expenses and the expenses of the mosques, it is devoted to the same kind: the restoration of another mosque and its interests, and to the same kind of interests; money is never hoarded without a delimited cause, especially for mosques whose revenue is known to exceed their needs permanently: hoarding such money is part of corruption":
"And Allah does not love corruption."
Surah 2, 205
(Majmu' al-fatawa, 31/210). Al-Ruhaybani (may Allah have mercy on him) said: this combination of restoration and the stipend holders is inclined to when a legal restoration is needed, such as the wall of a mosque or school and their roofs: it is redone without ornament (engraving, painting, writing) or anything that generally distracts the worshipper from his prayer; for that is disliked, and plastering is of the same kind (Matalib uli al-nuha, 4/342).
The Shafi'i and Hanbali jurists stated explicitly that it is permitted to restore one waqf from the revenue of another waqf. Ibn Hajar al-Haytami (may Allah have mercy on him) was asked about one who renovated a mosque or restored it with new instruments, while the old instruments remained set aside (not used for the restoration): is it permitted to restore with them another old mosque, or should they be sold and the price kept for the mosque they came from? He answered: "Yes, it is permitted to restore with them a mosque, old or new, since it was established that the mosque they came from no longer needs them before their decay; selling them is not permitted in any way. They stated explicitly that if it is feared that corrupt people will demolish the mosque shut down because of the ruin of the town, it is demolished and its materials preserved; and if the ruler deems it right to restore another mosque with their demolition, that is permitted, and the nearest is preferable. The revenue of that mosque is devoted to the restoration of another mosque," said al-Mutawalli: "to the restoration of that to which it is transferred." The same applies to the ribats and waqf wells: their demolition and their revenue are transferred to their equivalent, not to another type; unless their type has disappeared: they are then devoted to something else, because of necessity; al-Qadi said the same. The ruler does what is fitting with the mats, lamps and the like found in the ruined mosque: he transfers them to another mosque if harm to them is feared. And Allah knows best (al-Fatawa al-fiqhiyya al-kubra, 3/288-289; see: I'anat al-talibin, 3/341-342).
Al-Mirdawi (may Allah have mercy on him) said: the saying of the author of "al-Furu'", "the intent is that the waqf be unified", apparently indicates that it is not permitted to restore one waqf from the revenue of another, even if the category is unified. Yet Shaykh Ubada, one of the imams of our companions, gave a fatwa permitting the restoration of one waqf from another waqf of the same category, as reported by Ibn Rajab in his "Tabaqat" in his biography. I say: it is a strong view, and the people act upon it (al-Insaf, 7/105).
Ibn Taymiyya (may Allah have mercy on him) said: "As for the surplus of revenue over the stipulated expenses and the expenses of the mosques, it is devoted to the same kind: the restoration of another mosque and its interests, and to the same kind of interests; money is never hoarded without a delimited cause, especially for mosques whose revenue is known to exceed their needs permanently: hoarding such money is part of corruption," and he cited the verse: "And Allah does not love corruption" (Surah 2, 205) (Majmu' al-fatawa, 31/210). He was also asked what is to be done with the surplus revenue of a waqf from which one can dispense. He answered: "It is devoted to an equivalent of that category: if a mosque has a surplus over its needs, it is devoted to another mosque; for the founder's aim concerns the kind, and the kind is one. If the first mosque were in ruin and no one benefited from it, its revenue would be devoted to another mosque; likewise when it has a surplus over its needs: that surplus can neither be spent on it nor left idle; devoting it to the intended kind is preferable, and it is the nearest path to the founder's aim. Ahmad reported from 'Ali (may Allah be pleased with him) that he urged people to give for a mukatab (a slave under a manumission contract); a surplus remained beyond his need and he devoted it to the other mukatabs" (Majmu' al-fatawa, 31/206-207).
Ibn Muflih al-Hanbali (may Allah have mercy on him) said: likewise the surplus of its mats, its oil, its reeds and its expenses. The wording of "al-Wajiz" and "al-Furu'": the surplus beyond its need may be devoted to another mosque, said Ahmad; for it is a benefit of the kind for which the waqf was made: it is spent on its equivalent, like the hadi (sacrificial animal) and charity to the poor of the Muslims, in explicit terms in al-Marrudhi's narration. He argued by the fact that Shayba ibn Uthman, the pilgrim, gave the coverings of the Kaaba in charity; and al-Khallal reported by his chain that Aisha ordered that (al-Mubdi', 5/357).
When the waqf is ruined or its benefits have ceased, two situations are possible: either it is movable property (not real estate), or it is real estate. First situation: movables. It divides into two: the waqf is an animal, or it is not an animal.
a) The waqf is an animal, like the horse assigned to the frontier post (al-habis). The jurists agree: if a horse made waqf for fighting no longer serves for fighting while it can be used for something else, its sale is permitted. Abu Bakr al-Khallal said: "They agreed on the permission to sell the horse assigned to fighting (that is, the waqf) when it has grown old and no longer serves for fighting, while it can be used for something else: turning a mill, carrying earth, or when its breeding is desired, or as a road horse. Its sale is then permitted, and with its price is bought what serves for fighting"; Ahmad stated it explicitly (al-Mughni, 5/368; Majmu' al-fatawa, 31/214).
Ibn Qadi al-Jabal (may Allah have mercy on him) said: "The great imams permitted, indeed the scholars rather agreed, on the permission to sell the beasts assigned (to the frontier post) when they no longer serve what they were made waqf for" (al-Munaqala bi-l-awqaf, p. 48). Ibn al-Humam (may Allah have mercy on him) said: "In al-Khalasa it is said: Muhammad declared, regarding the horse made waqf in the way of Allah that has become impossible to ride: it is sold and its price is given to its owner or his heirs, as with the mosque; if its owner is unknown, another horse fit for fighting is bought with its price; the ruler is not needed" (Sharh Fath al-Qadir, 6/227). Ibn Battal (may Allah have mercy on him) said: "Rabia and Malik permitted selling the assigned horse when it no longer has strength for fighting, and its price is placed in another. Ibn al-Qasim said: if the price does not suffice, one contributes toward it" (Sharh Sahih al-Bukhari, 8/199).
The Malikis say: the waqf horse struck by the kalab (an equine illness akin to madness) to the point that the intended benefit (fighting, for example) can no longer be drawn from it, while it can be used for a mill: it is sold and its price placed in its equivalent or in half of its equivalent. Like the kalab: old age and disease. Like the diseased horse: the large females made waqf for their breeding or their work, and the surplus males beyond the needs of fighting. When the diseased horse and what we have mentioned are sold, the price must be placed in an equivalent from which a benefit like that of the sold animal is drawn, if the price reaches that of an equivalent, or one contributes toward buying it. Whoever makes livestock waqf for the poor or designated beneficiaries to benefit from their milk, wool or hair: their offspring are waqf like the principal. If the cows made waqf for their milk, or the camels and sheep, bear males and females, the surplus of males beyond grazing needs, as well as the grown females whose milk has dried up, are sold, and with the price young females are bought and made waqf like the principal, in order to accomplish the founder's aim (al-Bayan wa-l-tahsil, 12/232; al-Sharh al-kabir with the hashiya of al-Dasuqi, 5/479; al-Taj wa-l-iklil, 4/581; Sharh Mukhtasar Khalil, 7/94; Tahbir al-Mukhtasar, 4/657; al-Fawa'id al-Dawani, 2/165; Manh al-Jalil, 8/152).
In "al-Mudawwana al-kubra" it is said: (I say) what do you think of the beasts of burden assigned in the way of Allah that have grown weak, or worn garments: what is done with them according to Malik? (He said): Malik said: as for the beasts of burden weakened to the point of having no strength for fighting, they are sold and other horses are bought with their price, which are placed in the way of Allah. Ibn al-Qasim said: if the price does not allow buying a horse, a mule or a beast, I see that one contributes toward the price of a horse.
Ibn Wahb said: I heard Malik say, regarding the horse made waqf in the way of Allah that became diseased and weak, that there is no harm in selling it and buying a horse in its place (al-Mudawwana al-kubra, 15/99). The shaykh Sulayman al-Jamal (may Allah have mercy on him) said: "This is how it differs from the one who made a horse waqf for fighting and it grew old and unfit: its sale is then permitted" (Hashiyat al-Jamal 'ala Sharh al-Manhaj, 3/590). Ibn Hajar al-Haytami (may Allah have mercy on him) said: "More than one transmitted consensus: the horse made waqf for fighting, when it has grown old and unfit, its sale is permitted" (Tuhfat al-muhtaj, 7/533).
b) The waqf is a movable other than an animal. The generality of the jurists (the Malikis, the Shafi'is according to the sounder view, and the Hanbalis) stated that what is not real estate, when the benefits for which it was made waqf have vanished so that it no longer serves the use for which it was made waqf, may be sold. The Malikis say: the thing made waqf for a designated beneficiary or not, other than real estate, when it no longer serves the use for which it was made waqf, such as a torn garment, a horse struck by disease, or an incapacitated slave and the like, is sold obligatorily, and with its price an equivalent serving the use for which it was made waqf is bought. If its price does not suffice to buy its equivalent, one contributes toward half of its equivalent, sharing with another a part if possible; otherwise it is given in charity. The meaning of "what no longer serves": it is the benefit intended by the founder that has vanished, but the thing remains usable in general; for the validity of the sale requires that the sold object be a thing from which benefit is drawn.
In "al-Mudawwana al-kubra", regarding the man who makes garments waqf in the way of Allah: (I say) what do you think of garments: may a man make them waqf to specific people in their substance, or to the needy, or in the way of Allah, according to Malik? (He said): I heard nothing from Malik about it, and I see no harm in a man making garments or saddles waqf. (I say) what do you think of the beasts of burden assigned in the way of Allah that have grown weak, or worn garments? (He said): Malik said: as for the beasts of burden weakened to the point of having no strength for fighting, they are sold and other horses are bought with their price, which are placed in the way of Allah. Ibn al-Qasim said: if the price does not allow buying a horse, a mule or a beast, I see that one contributes toward the price of a horse. As for the garments, if they have no benefit left, they are sold and usable garments are bought with their price; if their price allows buying nothing usable, they are distributed in the way of Allah. Ibn Wahb said: I heard Malik say, regarding the horse made waqf in the way of Allah that became diseased and weak, that there is no harm in selling it and buying a horse in its place (al-Mudawwana al-kubra, 15/99; see: al-Bayan wa-l-tahsil, 12/232; al-Sharh al-kabir with the hashiya of al-Dasuqi, 5/479; al-Taj wa-l-iklil, 4/581; Sharh Mukhtasar Khalil, 7/94; Tahbir al-Mukhtasar, 4/657; al-Fawa'id al-Dawani, 2/165; Manh al-Jalil, 8/152).
The qadi Abu al-Walid al-Baji (may Allah have mercy on him) said: as for what can be transported, like the animal and garments, Malik said in "al-Majmu'a", regarding the assigned horse grown weak with no strength left for fighting: its sale is not problematic, and its price is placed in another. Ibn al-Qasim said: if it does not suffice, one contributes toward it; and the garments are sold if no benefit remains in them, and with their price what is usable is bought. Ibn Habib reported from Ibn al-Majishun: that is not permitted, for otherwise the endowments (ahbas) would collapse. The basis of the first view: it is a manifest ruin beyond repair, whose return to its former state is not hoped for; this is not so for real estate (aradi, riba'), which is restored after ruin: that is why their sale is not permitted. The basis of Ibn al-Majishun's view: it is an endowment (habas), which may not be sold for lack of benefit, like real estate (al-Muntaqa, 6/131).
The Shafi'is, according to the sounder view, say: the sale of the worn mats of a waqf mosque is permitted, as well as its trunks when broken or about to break and fit only for burning; so that they are not lost and do not cramp the place without benefit: gaining a little from their price, which returns to the waqf, is better than their loss; yet they do not enter into the sale of the waqf, for they have become as if nonexistent, and their price is spent on the interests of the mosque. Al-Rafi'i said: "The analogy is that mats alone, nothing else, are bought with the price of the mats; it seems that is their intent." If planks or doors can be made from them, they are absolutely not sold: the ruler strives and uses them for what is closest to the founder's aim. Like the mats in this: the wooden carvings and the curtains of the Kaaba, when neither benefit nor beauty remains in them.
Against the sounder view: what has been mentioned is not sold, in order to keep the waqf in its substance; for it can be used to cook lime or bricks; and this is the view of the majority of the Shafi'is. They said: as for the tree when it has dried up, or been uprooted by wind, flood or the like and cannot be replanted before it dries; or the beast of breath grown wind-broken: the waqf is not interrupted according to the school; the trunk continues to be used by leasing and the like, in order to keep the waqf in its substance; it is neither sold nor given as a gift, by virtue of the report: "it is not sold." Likewise the wind-broken beast that has become unusable: that is, if it has been eaten, for the sale of its meat is valid, unlike the others. Against the sounder view: it is sold, for its benefit is annulled, and its sale is preferable to leaving it; with the price its equivalent is bought, to be waqf in its place, or part of it, for that is closer to the founder's aim.
If it is useful only by being consumed through burning or the like: there is divergence. It has been said: the waqf is interrupted and the thing becomes the property of the beneficiary, according to the adopted view; yet it is neither sold nor given: it is used in its substance, like the umm al-walad (mother of a child) and the sacrificial animal. It has been said: it never becomes property (al-Bayan, 8/99; Rawdat al-talibin, 4/172; Mughni al-muhtaj, 3/479; Tuhfat al-muhtaj, 7/532-533; Nihayat al-muhtaj, 5/452-453; Kunz al-raghibin, 3/264; al-Najm al-wahaj, 5/515; al-Dibaj, 2/533).
The Hanbalis say: if the benefits of the waqf have ceased, or it is ruined so that its restoration (whether whole or partial) is only possible by selling part of it, the sale of that part is permitted in order to restore the rest; and if no benefit can be drawn from any of it, the sale of all of it is permitted. Ahmad said, in Abu Dawud's narration: if there are in the mosque two beams of value, their sale is permitted and their price spent on it; for if selling the whole is permitted when needed, selling part while keeping the rest is preferable, by analogy with selling part of the assigned horse when its benefit has become impossible, and spending its price on what replaces it. The sale of a waqf tree that dried up, or of a waqf trunk that broke, wore out, or whose breaking or collapse is feared, is valid. In "al-Talkhis" it is said: if the trunk of a waqf is on the verge of breaking, or its house of collapsing, and it is known that delay would take it out of the category of usable property, it is sold, out of care for the finances, or demolished, to realize the interest. Al-Harithi said: it is as he said. Schools, ribats and endowed lodges may be sold at their ruin, according to the first view mentioned. The sale of what remains as surplus of the carpentry and carvings of the waqf is valid, for what has preceded. If the founder stipulated the absence of sale in the cases where we said sale takes place, the condition is void, by virtue of the hadith:
What is the matter with people who stipulate conditions that are not in the Book of Allah?Reported by al-Bukhari
Where the waqf is sold, its price is spent on its equivalent; for establishing a replacement in its place is a perpetuation of its existence and a realization of the aim: the sale thus becomes obligatory; or on part of its equivalent if the equivalent is not possible. The price is spent in its category, that is, its destination; for changing the destination is forbidden as long as it can be preserved, just as changing the waqf by sale is forbidden as long as its benefit is possible. If the category designated by the founder has become unusable, the replacement is spent on an equivalent category: whoever made a waqf for the fighters in a place where fighting has ceased, the replacement is devoted to other fighters in another place, to realize the founder's aim in principle, according to capacity (al-Mughni, 5/368; al-Sharh al-kabir, 6/242-243; al-Mubdi', 5/356; al-Ifsah, 2/48; Kashshaf al-Qina', 4/353-354; Matalib uli al-nuha, 4/370).
The Hanafis say: what collapsed from the building of the waqf, such as bricks, wood, tar, stones and its tools, that is, the instrument with which work is done, like the plough tools of the waqf farm: the ruler reemploys it in the restoration of the waqf if the waqf needs it, so that it remains in perpetuity. If one can dispense with it, it is set aside until the time of need, then spent then; for restoration is necessary: it is set aside so that it is not unavailable when needed, which would void the aim. If reemploying the substance has become impossible, it is sold and the price spent on its restoration, directed to the destination of the principal. It is not permitted to divide it, or its replacement, among the beneficiaries of the waqf; for the substance is a right of Allah, and this is part of it: only their right is given to them; their right lies in the benefit and the revenue, not in the substance; the substance is purely a right of Allah (Bada'i' al-sana'i', 6/221; al-'Inaya, 8/346; al-Ikhtiyar, 3/53; al-Jawhara al-nira, 4/109; al-Lubab, 1/624-625; al-Bahr al-ra'iq, 5/237; Tanqih al-fatawa al-Hamidiyya, 2/229).