Islamic Fiqh > Endowments (waqf) and property > Conditions for the validity of a waqf > Second scenario: no stipulation, but the waqf yields no benefit at all
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Updated on 27 September 2026 at 3:52 AM
This part belongs to the section: All parts.
Second scenario: the founder did not stipulate it, whether he remained silent or stipulated the contrary, but the waqf property comes to yield no benefit at all, either because it gives nothing at all, or because it does not cover its costs. The jurists differed: is the sale and substitution valid, or is it forbidden in all circumstances?
The Hanafis allow the substitution and the overriding of the founder's condition in this case, for the sake of interest, under several conditions:
Ibn Nujaym said: it must be added, in our time, that the property be substituted by real estate and not by money; for we have seen treasurers devour them, and it is rare that a replacement is bought with them; and we have not seen any of the judges carry out scrutiny despite the abundance of substitutions in our time, even though I alerted one of the judges, who intended to scrutinize then gave up (al-Ashbah wa-l-naza'ir, p. 195; al-Bahr al-ra'iq, 5/241; Ibn Abidin, 4/384, 387).
Ibn Abidin (may Allah have mercy on him) was asked about a ruin in a family waqf whose exploitation has become impossible, too weak to yield revenue, with nothing else in the waqf to maintain it, and where necessity has led to substituting it according to the legal way by something containing profit and interest for the waqf, even with money, in order to buy a more useful, more profitable and better-located house: may the judge act thus in the legal way? Answer: yes. In the "Fatawa of the reader of al-Hidaya", it was asked what is the form of the substitution of the waqf: does it follow Abu Hanifa's view or that of his companions?
Answer: substitution, when it becomes necessary because the waqf property no longer yields benefit, and someone desires it by giving in exchange a land or a house whose revenue profits the waqf category: substitution in this form follows the view of Abu Yusuf and Muhammad; and if the waqf has revenue, but someone desires to substitute it by giving in its place a replacement with higher revenue, in a better location than that of the waqf, that is permitted according to Abu Yusuf, and this view is acted upon; otherwise it is not permitted. The author of "al-Nahr" wrote at the end of this fatwa: I have seen some clients incline toward this and rely on it; you know that when the substitutor is a "judge of paradise", the soul is reassured by him and loss is not feared, even with money; Allah is the Giver of success.
A group of leading scholars gave the fatwa of permission of substitution by money when it presents an interest for the waqf: the learned al-Khayr al-Ramli, his disciple the perspicacious Sayyid Abd al-Rahim al-Lutfi, the verifier Shaykh Isma'il al-Hayki, and others; may Allah refresh their spirits in the Abode of Peace. And Allah knows best (Tanqih al-fatawa al-Hamidiyya of Ibn Abidin, 24/230).
The Hanbalis say: if the benefits of the waqf have ceased because of the ruin of the property, its location or otherwise, to the point that it yields nothing to the people of the waqf, or yields only what does not count as benefit for them, and its restoration and the return of its benefit are impossible (because the waqf contains nothing allowing its maintenance), its sale is valid; its price is spent on its equivalent if possible, in virtue of the prohibition of wasting property: keeping it as it is would be wasting it, so it must be preserved through sale; for what is intended is the beneficiary's benefit through the fruit, not the principal in itself where it stands; forbidding the sale would annul this meaning that the waqf requires: it would contradict the principle. Moreover, our view allows the persistence of the waqf according to its meaning when preserving it according to its form has become impossible: it therefore becomes necessary.
If its founder stipulated the absence of sale in this state, his condition is void textually; it was explained by necessity and benefit for the people. The generality of the saying (pbuh): "its principal is not sold" is specified by the state of the waqf ready for the specific benefit. The price is spent on its equivalent if possible; for establishing a replacement in its place is a perpetuation and a realization of the aim, which makes the sale obligatory; or on part of its equivalent, for that is closer to the founder's aim. It is said in "al-Mughni" by Ibn Qudama (may Allah have mercy on him): "when the waqf is ruined and yields nothing, it is sold, and with its price what yields to the people of the waqf is bought, and it is made a waqf like the first; likewise the assigned horse that no longer serves for fighting: it is sold, and with its price what serves for jihad is bought.
The whole: the sale of part to restore the rest, and of the whole if no benefit can be drawn from anything. 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; in Salih's narration: the mosque is moved for fear of thieves, or when its place is filthy; al-Qadi said: when that prevents praying in it; he stated explicitly the sale of its courtyard in Abdallah's narration; Ali ibn Sa'id reported that mosques are not sold, but that their instruments are moved; he said: I hold the first view, because of their consensus on the sale of the assigned horse for fighting that became unfit.
Muhammad ibn al-Hasan said: if the mosque or the waqf is ruined, it reverts to the ownership of its founder; for the waqf is only the liberation of the benefit. Malik and al-Shafi'i said: nothing of that is sold, by virtue of the saying of the Messenger of Allah (pbuh): "Its principal is not sold, not bought, not given as a gift and not inherited"; for what may not be sold while its benefits remain may not be sold when its benefits have ceased, like the freed slave; and the mosque is what most resembles the freed slave. For us: what has been reported from Umar (may Allah be pleased with him): he wrote to Sa'd, when he was informed that the public treasury of Kufa had been dug into: "Move the mosque of the training ground and place the public treasury in the qibla of the mosque, for there will never be in the mosque a worshipper less. This happened in the presence of the Companions, without objection: it amounts to consensus.
Ibn 'Aqil said: "The waqf is perpetual; when its perpetuation becomes impossible in a manner that preserves the aim, it is so in another substance; our rigidity toward the substance become unusable is a loss of the aim; this resembles the hadi become defective on a journey, which is slaughtered at once, even though it is tied to a place. Against Muhammad ibn al-Hasan: it is a removal of ownership performed by way of drawing near to Allah: it does not revert to its owner, like manumission. Chapter: the apparent meaning of al-Khiraqi's words is that whatever is bought with the price of the sold waqf, for the benefit of the people of the waqf, is permitted, of the same kind or another; for what is intended is the benefit, not the kind.
Chapter: if the interest of the waqf has not ceased totally but has diminished, and another would be more useful, its sale is not permitted; the principle is prohibition, permitted only for necessity; unless the slightness of the benefit reaches a degree where it no longer counts as benefit, in which case its existence is like nonexistence (al-Mughni, 5/368-369; al-Sharh al-kabir, 6/242-243; al-Mubdi', 5/356; al-Ifsah, 2/48; al-Insaf, 7/100, 104; Kashshaf al-Qina', 4/352, 354; Sharh Muntaha al-iradat, 4/383; Matalib uli al-nuha, 4/370; al-Rawd al-murbi', 2/178; Manar al-sabil, 2/341-342).
The permission to sell the ruined waqf is a narration reported from Malik, held by some Malikis. Ibn Rushd said: Rabia admits in it that the imam sells the quarter in ruin when he sees that; it is one of Abu al-Farj's two narrations from Malik. The wording of the Risala: "the endowment is not sold, even in ruin"; then: the exchange of the ruined quarter for one not in ruin is disputed. Ibn Rushd said: if the benefit of this parcel has ceased totally, and its restoration and rental have become impossible, exchanging it for a place that would be an endowment in its place is not problematic; that is done by the ruling of the qadi, after establishing the cause and the advantage warranting the substitution, with registration and witnesses (al-Taj wa-l-iklil, 4/582-583).
The Malikis according to the well-known opinion, and the Shafi'is, teach that it is not permitted to sell the waqf nor to substitute it by another waqf, even if it is ruined. The Malikis say: the sale of waqf real estate (houses, shops, quarter) is not permitted in order to replace it, even in ruin; Malik said: the endowed real estate is not sold, even in ruin. Sahnun said: "Most of these endowments are in ruin, and nothing attests better their sunna; do you not see that if sale had been permitted in them, the predecessors would not have neglected it? But their persistence in ruin proves that their sale is not upright...
these endowments are ancient and have never ceased; most of those that exist do so according to what has never ceased to apply to them: that is their proof... for if it were upright, the first ones of this community would not have erred, nor would those ignorant of it have neglected it to the point of leaving them in ruin. It was nevertheless reported from Rabia a contrary view on this subject, for the estates and animals, when the imam judges so (al-Mudawwana al-kubra, 15/100). Ibn al-Hajib said: the real estate is not exchanged, even if it has fallen into decay and what surrounds it is in ruin; the persistence of the endowments of the early generations indicates the prohibition of selling them and of inheriting them (Jami' al-ummahat, p.
452). If the endowed quarter in ruin was not sold, it is because one finds someone who restores it by leasing it for years, so that it returns to its state. Another proof: what does not remove the endowment from its implication when it is not in ruin does not remove it when it is in ruin, like usurpation. Likewise, the demolition debris of the endowment is not sold, even in ruin; if its return to use has become impossible, its transfer to an equivalent is permitted.
Except for selling the endowed real estate, even without ruin, for the expansion of a mosque too small for its worshippers, with endowed real estate or private property beside it: the sale is permitted; similar: the expansion of the road of the Muslims and of their cemetery; for that is a general benefit for the Muslims, broader than selling the endowed house; if the holder of the endowment, the supervisor or the property owner refuses, the well-known opinion is that they are compelled. When they have sold and received the price, they are ordered to place it in another endowment (al-Muntaqa, 6/131; al-Sharh al-kabir with the hashiya of al-Dasuqi, 5/480-481; al-Taj wa-l-iklil, 4/582-583; Sharh Mukhtasar Khalil, 7/94-95; Tahbir al-Mukhtasar, 4/657; al-Fawa'id al-Dawani, 2/164; Manh al-Jalil, 8/155; Hashiyat al-Sawi, 9/181).
In "Fath al-'Ali al-Malik" by Shaykh Aliysh it is said: (what is your view) concerning land made waqf for a footpath, whose founder stipulated that it be neither sold nor replaced, and then the supervisor substituted it with a diwan land, the supervisor paying the waqf expenses and the farmer the kharaj: is this exchange void, and must the supervisor return the waqf land itself? Shaykh al-Dardir (may Allah have mercy on him) answered: "Praise be to Allah. Since the founder stipulated the absence of substitution and remained in the general, the exchange made by the supervisor is void; the supervisor must return the diwan land to its owner and take back the waqf land itself; whoever refuses is restrained by the ruler. And Allah knows best" (Fath al-'Ali al-Malik, 2/243).
The Shafi'is say: the sale of the waqf is never permitted; if land was made waqf for a frontier post become inoperative, the benefit of the waqf is preserved and not directed elsewhere; if a mosque was made waqf that collapsed or became unusable, it does not revert to ownership and is absolutely not sold; etc. (the detail was given above). In the "Fatawa al-Ramli": (he was asked): is it permitted to sell the waqf house that has collapsed or threatens collapse, whether it was made waqf for the mosque or for something else? or only the one made waqf for the mosque, as Ibn al-Muqri and others stated explicitly?
or is nothing of that sold, as Shaykh al-islam Zakariyya gave in fatwa? (He answered) that the preferred view is to forbid its sale, whether it was made waqf for the mosque or for something else. Al-Mawardi said: the ruined waqf cannot be sold, nor anything of it for its restoration; Ahmad said: selling part for the restoration of the rest is permitted, like the defective animal. For us: the possibility of its return and repair; that is why making wasteland waqf is permitted, whereas making a defective animal waqf is not.
Al-Mutawalli said: selling the house in ruin or whose ruin is feared is not permitted, contrary to Ahmad. If the ruined house is not sold, all the more the one threatening collapse. Qadi Abu al-Tayyib said: if a house was made waqf for people and then collapsed, the beneficiaries have no right to sell the ownership. Ahmad said: "that is theirs": this is a mistake; the same was mentioned by Ibn al-Sabbagh, al-Ruyani in "al-Bahr", Shaykh Abu Hamid and his followers, al-Jurjani in his Shafi, the author of "al-Bayan" and other Iraqis.
Al-Jurjani said in his Tahrir: if the waqf house has collapsed, its sale is not permitted unanimously. Qadi Husayn affirmed it: the ruined waqf is not sold, it remains a waqf forever, contrary to Ahmad; al-Furani said likewise in "al-Ibana". Al-Khwarizmi said in his Kafiya: the waqf house that has collapsed, fallen into ruin and whose benefits have ceased cannot be sold, nor anything of it transferred elsewhere. Al-Saymari said in "Sharh al-Kafiya": the sale of the waqf is forbidden absolutely.
These books of the school bear witness against what al-Rafi'i mentioned; the Imam was unique in reporting the disagreement about the house threatening ruin, and al-Rafi'i about the collapsed one; al-Rafi'i's words require the correction of permission in both cases; his reporting of the disagreement about the collapsed one means: if the sale of the one threatening ruin is permitted according to a view, the sale of the collapsed one is more fitting. Al-Subki and others said: forbidding its sale is the truth, for permitting it would amount to following those who allow substitution; and the permissive one's words can be interpreted as concerning building, as Ibn al-Muqri indicated in "al-Rawd" with his saying: "the wall of his collapsed house"; this interpretation is easier than weakening the statement (Fatawa al-Ramli, 1/356-357).
Ibn Qudama (may Allah have mercy on him) said: Malik and al-Shafi'i said: nothing of that is sold, by virtue of the saying of the Messenger of Allah (pbuh): "Its principal is not sold, not bought, not given as a gift and not inherited"; for what may not be sold while its benefits remain may not be sold when its benefits have ceased, like the freed slave; and the mosque is what most resembles the freed slave (al-Mughni, 5/368-369; al-Sharh al-kabir, 6/242-243; al-Mubdi', 5/356; al-Ifsah, 2/48; al-Insaf, 7/100, 104; Kashshaf al-Qina', 4/352, 354; Sharh Muntaha al-iradat, 4/383; Matalib uli al-nuha, 4/370; al-Rawd al-murbi', 2/178; Manar al-sabil, 2/341-342). The discussion of the ruling on the sale of the waqf has already been presented.
Third scenario: the founder stipulated nothing, but the waqf yields a benefit overall, though reduced, and its replacement would be better in revenue and benefit: is the substitution permitted? The majority of jurists (the Hanafis in the school, the Malikis, the Shafi'is, and the Hanbalis in the school) teach that its sale and substitution are not valid.
The Hanafis say: if the founder did not stipulate the substitution, and the waqf has revenues and yields without being shut down, but the substitution presents a benefit overall and its replacement would be better in benefit and revenue, the substitution is not permitted according to the sounder view, the one adopted. Ibn Abidin (may Allah have mercy on him) said: this is what the learned Qanali Zada clarified in his epistle devoted to substitution, developing the argumentation, drawn also from "al-Fath", as we shall mention at the commentator's saying: "substitution of the exploited property is permitted only in four cases", the rest of the conditions following. The author of "al-Bahr" indicated, in his epistle on substitution, that the disagreement concerns only land grown too weak for exploitation, unlike the house weakened by the ruin of part of its elements without its substance disappearing: substitution is then not permitted according to any view.
He said: "The house cannot be analogized to the land; for when land weakens, it is generally no longer desired for rent, but rather for purchase; as for the house, it is desired for rent over a long term in order to maintain it for dwelling. In our time the door of analogy is closed: the scholars only transmit from the authoritative books, as they stated explicitly (Ibn Abidin, 4/384-385).
The Hanafis say: substitution of the exploited property is permitted only in four cases:
Ibn Abidin (may Allah have mercy on him) said: the author of "al-Nahr" wrote in his book "Ijabat al-sa'il": the saying of the "reader of al-Hidaya" (acting on Abu Yusuf's view) is contradicted by what Sadr al-Shari'a said: "We do not give fatwa on this basis; we have seen in substitutions what cannot be counted: unjust judges made it a stratagem for annulling the waqfs of the Muslims. According to that reading, it is said in "al-Is'af": the judge intended is the "judge of paradise", that is, the man endowed with knowledge and practice. And he added: "By my life, that is rarer than red sulfur; it is only an expression that is cited; blocking it is therefore more fitting, for fear of exceeding the limit. Allah will question every soul.
Al-Bayri said, after the transmission: "In 'Fath al-Qadir': in sum, substitution is either based on the condition of substitution, or not. If its cause is the waqf leaving the benefit of the beneficiaries, no divergence should be found in it; if its cause is not that, but all agree that something better could be obtained with its price while it still yields benefit, it should not be permitted; for the obligation is to keep the waqf in its state, without increase; and there is no reason to permit it: in the first case the reason is the condition, in the second necessity; but there is no necessity here, since increase is not obligatory: it is therefore kept as it was. I say: the words of this verifier are the sound truth: this is what the learned Qanali clarified, as we said (Ibn Abidin, 4/388; al-Ashbah wa-l-naza'ir, p. 194; Sharh Fath al-Qadir, 6/228).
Ibn Qudama (may Allah have mercy on him) said: if the interest of the waqf has not ceased totally but has diminished, and another would be more useful and yield more to the people of the waqf, its sale is not permitted; for the principle is the prohibition of sale, which was permitted only for necessity, to preserve the aim of the waqf from loss while its realization is possible, and despite the benefit even if slight; unless the slightness of the benefit reaches a degree where it no longer counts as benefit, in which case its existence is like nonexistence (al-Mughni, 5/368-369). Al-Mirdawi (may Allah have mercy on him) said: know that the waqf is of two kinds: its benefits have ceased, or not. If they have not ceased, its sale and exchange are never permitted: stated in Ali ibn Sa'id's narration, who said: "It is not substituted and not sold, unless it has reached a state in which no benefit can be drawn from it.
Abu Talib transmitted: "It is not changed from its state and not sold, unless no profit at all can be drawn from it; and the companions are upon this" (al-Insaf, 7/101; al-Sharh al-kabir, 6/242-243; al-Mubdi', 5/356; al-Ifsah, 2/48; Kashshaf al-Qina', 4/352, 354; Sharh Muntaha al-iradat, 4/383; Matalib uli al-nuha, 4/370; al-Rawd al-murbi', 2/178; Manar al-sabil, 2/341-342).
As for the Malikis and the Shafi'is, as said above, they never allow the sale, even in ruin: all the more when it is not in ruin. The Malikis permitted it only in three cases, even without ruin:
for that is a general benefit for the Muslims, broader than selling the endowed house, and this whether the waqf is for a designated beneficiary or not. If the holder of the endowment, the supervisor or the property owner refuses the sale, the well-known opinion is that they are compelled to sell. When they have sold and received the price, they are ordered to place it in another endowment (al-Muntaqa, 6/131; al-Sharh al-kabir with the hashiya of al-Dasuqi, 5/480-481; al-Taj wa-l-iklil, 4/582-583; Sharh Mukhtasar Khalil, 7/94-95; Tahbir al-Mukhtasar, 4/657; al-Fawa'id al-Dawani, 2/164; Manh al-Jalil, 8/155; Hashiyat al-Sawi, 9/181). The Shafi'is say: the sale of the waqf is never permitted; their detailed discussion of the sale of the waqf has already been presented.
Shaykh al-islam Ibn Taymiyya, some Hanafis, the Hanbalis according to one view, Ibn Qadi al-Jabal, Abu Thawr and Abu Ubayd Ibn Harmala, qadi of Egypt who ruled accordingly (by analogy with Ahmad's view), permitted the substitution of the waqf by what would be better than it.
Shaykh al-islam Ibn Taymiyya (may Allah have mercy on him) argued for the permission to replace the waqf by something better through proofs and narrations from Imam Ahmad; here are some extracts: "Chapter on the replacement of the waqf: including mosques, by their equivalent or by something better, in case of need or interest; likewise the replacement of the hadi, the sacrificial animal and the vowed thing; likewise the replacement of the beneficiary by his equivalent when spending on him has become impossible. The replacement is made sometimes by compensating with the replacement, sometimes by selling and buying the replacement with the price. Ahmad's school, apart from the mosque, permits its sale in case of need; as for the mosque, its sale in case of need is also permitted in the better known of the two narrations; in the other: its courtyard is not sold, but its instruments are moved to another place.
The mushaf (Quran copy) is its equivalent: its sale is disliked (prohibition or recommendation); as for its replacement, it is permitted according to one of the two narrations, without dislike; but the apparent of his school is that, if it is sold and bought with its price, that belongs to the kind of replacement, for the aim is achieved in it: its benefit is directed to the equivalent of the beneficiary when spending on his person has become impossible. If the mosque is a waqf in a town or quarter, and the inhabitants of that region can no longer benefit from it, the benefit is directed to its equivalent: a mosque is built with it in another place; as he says the same of the oil and mats of the mosque: when one can dispense with them, they are devoted to another mosque; and he permits spending them on the poor of the neighborhood.
He argued by the fact that "Umar ibn al-Khattab (may Allah be pleased with him) shared out the covering of the Kaaba among the Muslims" (reported by al-Azraqi in "Akhbar Makka", 1/259, from Muslim ibn Khalid, from Ibn Abi Najih, from his father: Umar ibn al-Khattab used to remove the covering of the House every year and share it among the pilgrims, who used it as shelter from the heat in Mecca); the same applies to the covering of the other mosques, for the Muslims are the beneficiaries of the benefit of the mosques. He argued the direction to the equivalent by the fact that "Ali ibn Abi Talib (may Allah be pleased with him) gathered money for a mukatab, and a surplus remained beyond the amount of his contract, which he devoted to other mukatabs": for those who gave the money for the manumission; when the designated one had met his need, he devoted it to the equivalent.
The upshot is that Ahmad ibn Hanbal's (may Allah have mercy on him) view diverged regarding the sale of the mosque that had become without benefit, but not regarding the sale of other property in case of need. He said in his son Abdallah's narration: "when the mosque is ruined, it is sold and its price spent on another mosque. As for replacing the mosque by something else for the interest, while the first remains exploitable, two views exist in Ahmad's school and his companions differed; but the permission is more apparent in his texts and proofs: the other view rests on no explicit text from him; his companions rather relied on the comprehensive sense of his words, for he often gives fatwas of permission in case of need: this may mean that the permission is specified by need, or the specification lies in that being what he was asked about and had to explain.
Abu Bakr Abd al-Aziz developed this in "al-Shafi", which he abridged in "Zad al-musafir": al-Khallal reported to us, from Salih ibn Ahmad, from his father, from Yazid ibn Harun, from al-Mas'udi, from al-Qasim, who said: "When Abdallah ibn Mas'ud (may Allah be pleased with him) arrived at the public treasury, Sa'd ibn Malik had built the palace and taken a mosque by the palm trees; the treasury was dug into and the man who dug it was seized; it was written to Umar ibn al-Khattab, who wrote: do not cut off the man, move the mosque and place the public treasury in its qibla, for there will never be in the mosque a worshipper less. Abdallah moved it and traced out the plan. Salih said: my father said: it is related that the public treasury was dug into from the mosque of Kufa, and Abdallah ibn Mas'ud moved the mosque; the training ground today is the site of the old mosque.
He said: I asked my father about a man who built a mosque then wanted to move it to another location; he said: if the one who built the mosque wants to move it for fear of thieves, or because its site is filthy, there is no harm in moving it. Muhammad ibn Ali, Abu Yahya and Abu Talib transmitted: Abu Abdallah was asked: may the mosque be moved? He said: when it is too small for its people, there is no harm in placing it in a more spacious location. Muhammad ibn Ali and Abdallah ibn Ahmad transmitted: I asked my father about a ruined mosque: do you see that its land be sold and spent on a new mosque?
He said: when it has no neighbors and no one maintains it, I see no harm in selling it and spending on the other. Muhammad ibn Abdallah and Abu Dawud transmitted: I heard Ahmad, asked about a mosque containing two valuable beams that had become shaken to the point that their fall was feared: may these two beams be sold, spent on the mosque, and replaced by two trunks? He said: I see no harm in it; and he argued by the assigned beasts from which no benefit is drawn: they are sold and their price placed in the endowment.
There is no doubt that his words indicate the permission to replace the mosque for the interest, even if the first remains exploitable; for the benefit of the second is fuller, and the first reverts freely. Abu Bakr said in "Zad al-musafir": Ahmad said, in Salih's narration: the public treasury of Kufa was dug into, and Ibn Mas'ud was in charge of it; he wrote to Umar ibn al-Khattab (may Allah be pleased with him), who wrote to him: move the mosque and make the site of the public treasury its qibla, for it will never be without a worshipper; Sa'd moved it to the training ground of today, the market of the training ground stood at its site, and the public treasury was placed in its qibla: there is thus no harm in moving ruined mosques. He said in Abu Talib's narration: when the mosque is too small for its people, there is no harm in moving it to a more spacious location: he permitted the move for the diminution of the first's benefit, not for its impossibility.
Qadi Abu Ya'la said: he said in Salih's narration: the mosque is moved for fear of thieves, or when its site is filthy; and he inclined to the second view. He said, in Abu Dawud's narration, about a mosque whose inhabitants wanted to raise it and install beneath it a water trough and shops, while some of them refused: the view of the majority is considered, and there is no harm in it. He said: the apparent meaning is that he permitted making the underside of the mosque into shops and a water trough; he said: this must be interpreted as need having called for it, for an interest that returns to the mosque. He said: our shaykh Abu Abdallah, that is, Ibn Hamid, forbade it, and interpreted the question as their differing at the inception of the mosque's building before its endowment; he said: it is not impossible according to our principle if there is an interest in it, since we permit its sale and its move to another location.
He said: Ahmad said, in Bakr ibn Muhammad's narration, about a mosque not fortified against dogs and the like, having a minaret: he permitted its demolition, and building with its materials the wall of the mosque, for the interest.
As for the saying of the one who said: "moving and replacement are permitted only when benefit has become impossible", it is rejected: they brought no legal proof nor proof from the school; neither the Legislator nor the founder of the school stated this negation on which they argue; the legal proofs and the founder's sayings rather indicate the contrary. Ahmad said: when the mosque is too small for its people, there is no harm in moving it to a more spacious location: its smallness did not stop its benefit, which remained as it was; yet the people increased, though it was possible to build them another mosque, and it is not a condition of the mosque to hold all the people; despite that, he permitted moving it to another location, for the gathering of people in a single mosque is better than their dispersion in two; for the more numerous the gathering, the better, by the saying of the Prophet (pbuh):
A man's prayer with another man is purer than his prayer alone, and his prayer with two men is purer than his prayer with one; and the more numerous, the more beloved it is to Allah.
Reported by Abu Dawud
This, while it is permitted to build another mosque when people multiply, even if it is near, while forbidding the mosque of harm. Ahmad said, in Salih's narration: a mosque intended to harm a neighboring mosque is not built; if the people multiply, there is no harm in building one, even near. After permitting building another mosque when people multiply, he permitted moving the mosque grown too small to a more spacious location; for that is better and more beneficial, without necessity.
Likewise, the rightly guided caliphs Umar and Uthman (may Allah be pleased with them) changed the mosque of the Prophet (pbuh), and Umar ibn al-Khattab ordered the moving of the mosque of Kufa to another location; the first became the market of the training ground, for a preferable interest, not because the benefit of those mosques had become unusable: their benefit remained intact. The caliphs of the Muslims after them, like al-Walid, al-Mansur and al-Mahdi, did likewise with the mosque of the Two Sanctuaries; and al-Walid did so with the mosque of Damascus and others, after consultation with the scholars and their approval. To the point that Malik and others gave the fatwa of buying the waqf adjacent to the mosque and compensating its holders: they permitted the sale of the waqf and its compensation for the interest of the mosque, not for the interest of its holders; if it is sold and compensated for the interest of its holders, it is more worthy of permission.
Umar ibn al-Khattab destroyed the first mosque, the cathedral mosque of the people of Kufa, and made another in another location of the city; the site of the first mosque became the market of the training ground. Ahmad's companions said: this implies the consensus of the Companions (may Allah be pleased with them). Ibn 'Aqil said: this happened while the Companions were numerous: it amounts to consensus, for no one objected, whereas they did not remain silent about what they deemed wrong; they objected to Umar his prohibition of excess in charities, until a woman answered him; and they turned him away from striking the she-camel that increased her milk, saying: "If Allah has made for you a path upon her back, He has not made a path for what she carries in her belly"; they objected to Uthman the completion of the prayer in pilgrimage, until he said: "I entered a land where my family dwells"; and they opposed Ali when he deemed lawful the sale of mothers of children.
If the moving of the mosque had been reprehensible, it would have been most worthy of objection, for it is an apparent act whose ugliness would be manifest.
He also argued by what Abu Hafs reported in his book of rites from Aisha (may Allah be pleased with her): it was said to her: "O mother of the believers, exchanges are made with the covering of the Kaaba"; she said: "it is sold and its price placed in the path of good" (reported by al-Azraqi in "Akhbar Makka", 5/231, from Alqama ibn Abi Alqama, from his mother, from Aisha: Shayba al-Hajbi entered upon her and said: O mother of the believers, the garments of the Kaaba accumulate with us until they become numerous; we remove them and dig wells which we deepen, then bury them in them so that no menstruating woman or person in major ritual impurity wears them; she said: what an evil thing you do! rather sell them and place their price in the way of Allah and for the needy; for once they are removed, the one who wears them is no longer harmed by a menstruating woman or a person in major ritual impurity). Aisha thus ordered the sale of the covering of the Kaaba though it was a waqf, and the spending of its price in the path of good; for that is better for the Muslims.
Likewise those who prefer Ibn Hamid's view regarding the waqf of exploitation, like Abu Muhammad, said: if the benefit of the waqf has not ceased totally but has diminished, or another would be more useful, its sale is not permitted, for the principle is prohibition, permitted only for necessity; unless the slightness of the benefit reaches a degree where it no longer counts as benefit. The answer: what they mention is rejected, and they brought no legal proof nor proof from the school; what they drew from the comprehensive or explicit sense of Ahmad's words is at most a narration contradicted by another that more resembles his texts and principles; when his texts and principles establish the permission to replace the mosque for the preferable interest, all the more for other things; he stated explicitly the permission to sell other things also for the interest, not for necessity, as we shall mention, Allah willing.
As for the assigned horse become defective, the one who buys it may wish to ride it or turn it in a mill; and the people of jihad can benefit from it similarly (loading it, using it at the mill, leasing it and benefiting from its wage); but the benefit intended by its assignment, namely fighting on it, has ceased, without their benefit from it ceasing entirely. Since it is permitted, according to the apparent of the school, to replace the waqf mosque, whose substance is legally venerated and whose benefit is sought in its person, by something else for the interest, the replacement being better and safer even if its benefit has not ceased totally, and the first reverting freely, whereas the ruling of its sale while its benefit has ceased totally involves two narrations: all the more is it permitted to replace by the better and more useful the property made waqf for exploitation; for according to Ahmad, the sale of what is made waqf for exploitation in case of need is admitted by a single view, while the sale of the mosque in case of need involves two narrations.
If it was admitted, according to the apparent of his school, to leave the first mosque free and to make a replacing mosque waqf for the interest even if the first's benefit has not ceased, all the more is it permitted to leave free the property made waqf for exploitation and to make a better replacement waqf, even if the first's benefit has not ceased; for the sale of the exploited waqf is nearer than the sale of the mosque, and its replacement nearer than the replacement of the mosque: the substance of the mosque is legally venerated, and its benefit is sought in its person; its leasing and the compensation of its benefit are not permitted, unlike the waqf of exploitation: its leasing and the compensation of its benefit are permitted; the aim is not that the beneficiary obtain his benefit in its person, as is sought for the mosque; and it has no legal inviolability on account of Allah's right, unlike the mosque (Majmu' al-fatawa, 31/212, 229).
He said: regarding the waqf assigned to a designated beneficiary, the scholars differed: is it the ownership of the beneficiary? does it remain the founder's property? or is it Allah's property? Three known views in the school of al-Shafi'i and Ahmad; most of Ahmad's companions choose that it is the beneficiary's ownership, like al-Qadi and Ibn 'Aqil; as for the mosque and the like, it is the ownership of no designated person, by agreement of the Muslims: it is rather said to be Allah's ownership, and it may be said to be the ownership of the community of the Muslims, for they are the beneficiaries of its exploitation.
If the replacement of this one by something better for the interest is permitted, the waqf for a designated beneficiary is more worthy of it: either it is compensated with the replacement, or it is sold and the replacement bought with its price; and the replacement is made by its kind, by what is more beneficial to the beneficiary (Majmu' al-fatawa, 31/233).
Then Shaykh al-islam Ibn Taymiyya (may Allah have mercy on him) said: the proofs of that are of several kinds. The first: what is established in "the two Sahihs" from Aisha (may Allah be pleased with her), from the Prophet (pbuh):
Were your people not recently out of the era of ignorance, I would have demolished the Kaaba and made it adhere to the ground, and made for it two doors: a door by which the people enter and a door by which they exit.
Reported by al-Bukhari (126) and Muslim (1333) in similar wording
The Kaaba is the most eminent waqf on earth: if its change and replacement by what he described had been obligatory, he would not have neglected it; it is therefore known that it was permitted, and even better, were it not for that recent exit from ignorance that he mentioned. It contains the replacement of its structure by another; it is therefore known that this is permitted in principle; and the replacement of one arrangement by another is one of the types of replacement. Moreover, it is established that Umar and Uthman changed the structure of the mosque of the Prophet (pbuh): Umar rebuilt it identical to the first, in bricks and trunks; Uthman built it with a taller material, like saj. In any case, the bricks and trunks that were waqf were replaced by the rightly guided caliphs by something else: this is among the most famous of matters, and no one rejected it; and there is no difference between replacing a structure by a structure and replacing a courtyard by a courtyard when the interest requires it.
That is why Umar ibn al-Khattab replaced the mosque of Kufa with another mosque: he replaced the courtyard itself, and the first courtyard became a training market: the courtyard became a market after being a mosque: this is the most eloquent proof of the replacement of the waqf for the interest.
Moreover, it is established that the Prophet (pbuh) permitted replacing the vowed thing by something better. In the Musnad of Ahmad and the Sunan of Abu Dawud, Abu Dawud said: Musa ibn Isma'il reported to us, from Hammad, that is, ibn Salama, from Habib the teacher, from Ata' ibn Abi Rabah, from Jabir ibn Abdallah (may Allah be pleased with them): "A man stood up on the day of the Conquest and said: Messenger of Allah, I vowed to Allah that, if He grants you the conquest of Mecca, I would pray two rak'a in the Sacred House (Bayt al-Maqdis). He said: pray here. He repeated it and he said: pray here.
He repeated it again, and he said: then do as you wish" (authentic hadith: reported by Abu Dawud, 3305). Abu Dawud said: a similar wording was reported from Abd al-Rahman ibn Awf from the Prophet (pbuh). The Sunan contain a third route, reported by Ahmad and Abu Dawud from a group of the Companions of the Prophet (pbuh): Abu Dawud said: Ibn Khalid reported to us, from Abu Asim, and Abbas al-Anbari reported to us, from Rawh, from Ibn Jurayj, that Yusuf ibn al-Hakam ibn Abi Sufyan said he heard Hafs ibn Umar ibn Abd al-Rahman ibn Awf, from men among the Companions of the Prophet (pbuh), this report; he added: the Prophet (pbuh) said: "By Him Who sent Muhammad with the truth, if you prayed here, it would suffice you in place of the prayer in the Sacred House" (reported by Abu Dawud, 3306). Abu Dawud said: the Ansar reported it from Ibn Jurayj; Hafs ibn Umar ibn Hinna said: Umar said: he reported it from Abd al-Rahman ibn Awf, from men among the Companions of the Prophet (pbuh).
In the Musnad and the Sahih of Muslim, from Ibn Abbas (may Allah be pleased with them): "a woman suffered a complaint and said: if Allah heals me, I will go out and pray in the Sacred House. She recovered, prepared to go out, and came to Maymuna, wife of the Prophet (pbuh), to tell her; she said to her: sit, eat what you have prepared and pray in the mosque of the Messenger of Allah (pbuh): I heard the Messenger of Allah (pbuh) say: a prayer in this mosque is better than a thousand prayers in any other mosque, except the mosque of the Kaaba" (reported by Muslim, 1396).
The Prophet (pbuh) said: "pray here"; and he said: "if you prayed here, it would suffice you in place of the prayer in the Sacred House"; he specified the command by the prayer in the Sacred Mosque without saying: pray wherever you wish; and he said: "if you prayed here, it would suffice you in place of the prayer in the Sacred House": he made the prayer in the best mosque the sufficient substitute, not prayer in any place. This indicates that he directed him to the replacement only by way of superiority, and not because the prayer would be undetermined. This indicates that travel to the three mosques is devotion, nearness and a good deed; that is why the Prophet (pbuh) permitted him to go to al-Aqsa while commanding him to pray in the Sacred Mosque and informing him that it suffices: this indicates that it is a recommended command, and that he has the choice between performing the vowed thing in its substance and performing what is better than it.
It is known that the vow makes obligatory the obedience to Allah that he vowed, by his saying (pbuh):
Whoever vows to obey Allah, let him obey Him.
Reported by al-Bukhari and Muslim
It is an obligation he imposed on himself, which becomes obligatory by the law only afterwards; then the Legislator showed that the better replacement stands in place of it; the designated sacrificial animal and hadi belong to the obligation of the designated vow: replacing by something better is preferable to slaughtering it in its person, like the obligation imposed by law upon the person: as for the one upon whom the young she-camel (bint makhad) is due and who performs it with the weaned she-camel (bint labun), or upon whom the weaned she-camel is due and who performs it with the pregnant she-camel (hiqqa); there is a hadith in the Sunan showing that the Prophet (pbuh) accepted the performance of something better than the obligatory as substitute, reported by Abu Dawud and others.
Abu Dawud said: Muhammad ibn Mansur reported to us, from Ya'qub ibn Ibrahim, from his father, from Ibn Ishaq: Abdallah ibn Abi Bakr reported to me, from Yahya ibn Abdallah ibn Abd al-Rahman ibn Sa'd ibn Zurara, from Amara ibn Amr ibn Hazm, from Ubayy ibn Ka'b, who said: "The Prophet (pbuh) sent me to collect the alms. I passed by a man who, having gathered his wealth, offered me only a young she-camel. I said to him: perform with the young she-camel, it is your alms. He said: that is what has neither milk nor back; but here is a young, great, fat she-camel: take it.
I said to him: I take nothing without command; and the Messenger of Allah (pbuh) is near you: if you wish to come to him and present to him what you presented to me, do so; if he accepts it from you, I accept it, and if he returns it to you, I return it to you. He said: I shall do so. He went out with me and brought the she-camel he had presented to me, until we came to the Messenger of Allah (pbuh), to whom he said: Prophet of Allah, your messenger came to take from my wealth the alms; by Allah, neither the Messenger of Allah (pbuh) nor his messenger had ever stood in my wealth before; I gathered my wealth and he claims that what is due from me is a young she-camel, which has neither milk nor back; I presented a young, great, fat she-camel for him to take, and he refused; here it is come to you, O Messenger of Allah: take it. The Messenger of Allah (pbuh) said to him: that is what is due from you; if you do better of your own accord, Allah will reward you for it and we will accept it from you.
He said: here it is, O Messenger of Allah, I have brought it, take it. The Messenger of Allah (pbuh) ordered that it be received and invoked blessing upon his wealth" (authentic hadith: reported by Abu Dawud, 1583, Ahmad in his Musnad, 21316, Ibn Khuzayma in his Sahih, 2277, and Ibn Hibban in his Sahih, 3269).
The acceptance in this hadith of an animal of higher age than the obligatory is the school of the majority of the people of knowledge, the eminent jurists and others: it is therefore established that replacing the obligatory by something better is permitted, and even recommended, for what is obligatory by imposition of the law and by imposition of the person, with no difference between the obligatory upon the person and what the man imposed on himself specifically; for what is obligatory upon the person, though absolute in one respect, is specific and distinct: its substitution without it is therefore not permitted without doubt.
On this basis, whoever vows to make a waqf is better rewarded if he makes a better property waqf: whoever vows to build for Allah a mosque he describes, or to make a waqf he describes, and builds a better mosque and makes a better waqf, is better rewarded; if he designated it, saying: "Allah obliges me to build this house as a mosque", or to make it waqf for the poor and needy, and he builds a better one and makes a better waqf, he is better rewarded, like the one who vowed the prayer at the Aqsa Mosque and prayed in the Sacred Mosque, or the one upon whom the young she-camel was due and who performed with something better (Majmu' al-fatawa, 31/244, 249).
Shaykh al-islam Ibn Taymiyya (may Allah have mercy on him) was asked about one who makes something waqf then deems another more profitable for the beneficiaries: is the replacement permitted, as with the sacrificial animal? He answered: "The replacement of the vowed thing and of the waqf property by something better, like the replacement of the hadi, is of two types. The first: replacement in case of need: when the property has become unusable, it is sold and what takes its place is bought with its price: like the horse assigned to fighting from which no benefit for fighting can be drawn: it is sold and what takes its place is bought with its price; like the mosque whose surroundings are in ruin: its instruments are moved to another place, or it is sold and what takes its place is bought with its price; or when the beneficiary can no longer draw from the founder's aim: it is sold and what takes its place is bought with its price; or when the property is ruined with no restoration possible: the courtyard is sold and what takes the place of the courtyard is bought with its price.
All of that is permitted; for when the principal does not allow reaching the aim, its replacement stands in its place. The second: replacement for a preferable interest: replacing the hadi by something better; like the mosque whose replacement, better for the inhabitants of the town, is built, and the first is sold: this and its like are permitted according to Ahmad and other scholars. Ahmad argued by the fact that Umar ibn al-Khattab (may Allah be pleased with him) moved the old mosque of Kufa to another location, the first becoming the training market: that is a replacement of the mosque's courtyard. As for the replacement of its structure by another, Umar and Uthman built the mosque of the Prophet (pbuh) differently from its first structure and enlarged it, as well as the Sacred Mosque.
It is established in 'the two Sahihs' that the Prophet (pbuh) said to Aisha: 'Were your people not recently out of ignorance, I would have demolished the Kaaba and made it adhere to the ground, and made for it two doors: a door by which the people enter and a door by which they exit.' Were it not for the preferable obstacle, the Prophet (pbuh) would have changed the structure of the Kaaba: the change of the structure of the waqf from one form to another for the preferable interest is therefore permitted. As for the replacement of the courtyard by another, Ahmad and others explicitly permitted it, following the companions of the Messenger of Allah (pbuh): Umar did it, the matter became famous and was not rejected.
As for what was made waqf for revenue, replaced by something better: such as one who makes a house, a shop, an orchard or a village waqf whose yield is small and replaces them with what is more useful to the waqf: Abu Thawr and other scholars, like Abu Ubayd Ibn Harmala, qadi of Egypt, permitted it and ruled accordingly; it is the analogy of Ahmad's view on changing the mosque from one courtyard to another for the interest; and if replacing the mosque by what is not a mosque for the interest is admitted, to the point that the mosque becomes a market, all the more is it permitted to replace the exploited property by another exploited one; it is the analogy of his view on replacing the hadi by something better. He stated explicitly that if the mosque adjoining a land is raised and a water trough installed beneath it, and the neighbors choose that, it is done. Some of his companions forbade the replacement of the mosque, the hadi and the waqf land: that is al-Shafi'i's view and others'; but the texts, the reports and the analogy require the permission of replacement for the interest.
And Allah knows best" (Majmu' al-fatawa, 31/252-253).
Ibn Nujaym (may Allah have mercy on him) said: in "al-Khalasa": it was reported from Muhammad: if the waqf land has grown too weak for exploitation and the supervisor finds with its price another land of higher revenue, he may sell it and buy with its price what yields more. In the "Fatawa": the supervisor of a waqf who fears the sultan or an heir who would seize the waqf land: he sells it and gives its price in charity; and every supervisor who fears that may sell and give the price in charity. Al-Sadr al-Shahid said: the fatwa is that he does not sell (al-Bahr al-ra'iq, 5/223).
Al-Ruhaybani (may Allah have mercy on him) said: Shaykh Taqi al-Din said: as for the mosque and the like, it is the ownership of no designated person, by agreement of the Muslims; it is rather Allah's ownership; if its replacement by something better for the interest is permitted, the waqf for a designated beneficiary is more worthy: either it is compensated with the replacement, or it is sold and the replacement bought with its price; and the replacement is made by its kind, by what is more beneficial to the beneficiary.
He said: if replacement is permitted for the waqf mosque, whose substance is legally venerated and whose benefit is sought in its person, it is permitted to replace it for the interest, the replacement being better and safer, even if its benefit has not ceased totally and the first reverts freely, even though the ruling of its sale involves two narrations: all the more the replacement by the better and more useful of the property made waqf for exploitation; for according to Ahmad, the sale of what is made waqf for exploitation in case of need is admitted by a single view, and the sale of the mosque involves two narrations; if leaving the mosque free and making a better replacement waqf was admitted even if the first's benefit has not ceased, all the more for the waqf of exploitation; for the sale of the exploited waqf is nearer than the sale of the mosque, and its replacement nearer than the replacement of the mosque: the substance of the mosque is legally venerated and its benefit is sought in its person; its leasing and compensation are not permitted, unlike the waqf of exploitation.
He said: the sale of the waqf in case of need is obligatory by its equivalent; without need, replacement by something better for the interest is permitted, but not by its equivalent, for change without need is a loss; he mentioned it as a view regarding exchange, and Imam Ahmad alluded to it.
Shihab al-Din Ibn Qudama said in his book "al-Munaqala fi-l-awqaf": "The affair of moving the mosque of Kufa, installing the public treasury in its qibla, and turning the mosque's site into a training market spread through the Hijaz and Iraq; the Companions were numerous and no objection or disapproval of it was reported from any of them; Umar was the commanding caliph, and Ibn Mas'ud the one commanded who moved it: this indicates the soundness of the account, its approval and the satisfaction based upon it; yet this is the reality of substitution and exchange: this amounts to indicating the legitimacy of the sale of the waqf when its benefit has ceased, and it also indicates the legitimacy of substitution when the exchange is preferable; all the more as this mosque was not shut down: it was the interest of its move for the protection of the public treasury that appeared, the treasury having been placed in the qibla of the second mosque. End of quote.
The author of "al-Fa'iq" composed a work on the permission of exchange for the interest, entitled "al-Munaqala bi-l-awqaf wa-ma fihi min al-niza' wa-l-khilaf"; he said in "al-Insaf": he excelled in it; and there followed his view on its permission Shaykh Taqi al-Din, Ibn al-Qayyim, and Shaykh Izz al-Din Hamza ibn Shaykh al-Salamiyya, who composed on this subject a work entitled "Daf' al-muthaqala fi bay' al-munaqala"; and a group of imams of his era followed him (Matalib uli al-nuha, 4/367-368). Al-Mirdawi (may Allah have mercy on him) said: if its benefits have not ceased, its sale and exchange are never permitted: stated in Ali ibn Sa'id's narration, who said: it is not substituted and not sold, unless it has reached a state in which no benefit can be drawn from it. Abu Talib transmitted: it is not changed and not sold, unless no profit at all can be drawn from it; the companions are upon this.
Shaykh Taqi al-Din (may Allah have mercy on him) permitted it for the interest and said: it is the analogy of the hadi; he mentioned it as a view regarding exchange, and Imam Ahmad alluded to it. Salih transmitted: moving the mosque for the interest of the people is permitted: this is among the unique reports. The author of "al-Fa'iq" chose it; a deputy of Judge Jamal al-Din al-Muslati ruled accordingly; Judge Jamal al-Mirdawi, author of "al-Intisar", contradicted him and said: his ruling is void according to the school's principles; he composed on this subject a refutation of the ruler, entitled "al-Wadih al-jaliyy fi naqd hukm Ibn Qadi al-Jabal al-Hanbali"; the author of "al-Furu'" followed him on that.
The author of "al-Fa'iq" composed on the permission of exchange for the interest "al-Munaqala bi-l-awqaf wa-ma fihi min al-niza' wa-l-khilaf", in which he excelled; Shaykh Burhan al-Din Ibn al-Qayyim followed him, as did Shaykh Izz al-Din Hamza ibn Shaykh al-Salamiyya, who composed "Raf' al-muthaqala fi man' al-munaqala"; a group of his era followed him as well: all disciples of Shaykh Taqi al-Din (may Allah have mercy on him) in this. In the one hundred and forty-third maxim, he stated in absolute terms, regarding the permission to replace the waqf while restoring it, two narrations (al-Insaf, 7/101-102).
Ibn Qadi al-Jabal (may Allah have mercy on him) said, after mentioning the earlier moving of the mosque of Kufa: "This report indicates the legitimacy of the sale of the waqf when its benefit has ceased; it also indicates the legitimacy of substitution when the exchange is preferable; all the more as this mosque was not shut down: it was the interest of its move for the protection of the public treasury that appeared, the treasury having been placed in the qibla of the second mosque" (al-Munaqala bi-l-awqaf, p. 38). He said, regarding the report of Umar and Aisha about the covering of the Kaaba: this is apparent for the moving of ownership in absolute terms when the interest is preferable (al-Munaqala bi-l-awqaf, p. 51-52; Matalib uli al-nuha, 4/368).
It was reported from Muhammad that he said: if the waqf land has grown too weak for exploitation and the supervisor finds with its price another land of higher revenue, he may sell this land and buy with its price what yields more (al-Muhit al-Burhani, 5/738; al-Bahr al-ra'iq, 5/223).