Islamic Fiqh > Endowments (waqf) and property > Conditions for the validity of a waqf > The Legitimacy of the Waqf (Habous) in Fiqh
Contents
Updated on 06 October 2026 at 10:50 PM
This first collection of sheets from the encyclopedia of fiqh chapter on waqfs (habous) and property brings together ten sheets: the legitimacy of the waqf and its legal ruling, the definition of mawat (dead land) and the evidence for its revival, the 'ariya (loan for use) with its naming and its legitimacy, the differences between hiba, 'atiyya, hadiyya and sadaqa, between hiba and wasiyya, the hadiyya versus the rishwa (bribe), gifts made to governors, and finally the difference between wadi'a and amana. Each sheet fully conveys the positions of the schools, the hadiths with their sources (al-Bukhari, Muslim and others), the exact figures and the classical references given in parentheses.
The waqf is legislated by the Qur'an, the Sunna and consensus. It is among the features peculiar to Islam: no man of the pre-Islamic era (jahiliyya) ever sequestered a house, land or other property as a voluntary act of devotion (tabarru'); as for the building of the Ka'ba and the digging of Zamzam, these were done out of boasting, not devotion (Hashiyat as-Sawi 'ala ash-Sharh as-saghir, 9/130). An-Nawawi, may Allah have mercy on him, said: the waqf is among the things with which the Muslims were specifically distinguished (Tahdhib al-Asma', 3/367). Imam ash-Shafi'i, may Allah have mercy on him, said: the people of the jahiliyya, as far as I know, never sequestered a house or land as an act of devotion; only the people of Islam did so (al-Umm, 4/52).
As for the Qur'an: the waqf is not explicitly mentioned in it, but the jurists cite the words of Allah Most High:
"You will never attain righteousness until you spend from that which you love"
Surah Al 'Imran, 92
For Abu Talha, as soon as he heard it, wished to endow Bayruha', the property dearest to his heart. As for the Sunna: Ishaq ibn Abdallah ibn Abu Talha reported that he heard Anas ibn Malik, may Allah be pleased with him, say: Abu Talha was the Ansari who owned the most palm trees in Medina, and the property dearest to him was Bayruha', which faced the mosque; the Messenger of Allah, peace be upon him, used to enter it and drink its sweet water. Anas said: when the verse was revealed, Abu Talha rose, went to the Messenger of Allah, peace be upon him, and said:
O Messenger of Allah, Allah, Blessed and Most High, says: "You will never attain righteousness until you spend from that which you love"; and the property dearest to me is Bayruha': it is a charity for Allah whose reward and treasured reserve I hope for with Allah; so dispose of it, O Messenger of Allah, wherever Allah shows you. The Messenger of Allah, peace be upon him, said: Bakh! That is profitable wealth, that is profitable wealth; I have heard what you said, and I think you should distribute it among your relatives. Abu Talha said: I will do so, O Messenger of Allah.
Abu Talha then divided it among his relatives and cousins.
Reported by al-Bukhari (2617), in the chapter: whoever endows land without delimiting its bounds, it is valid, and the same applies to charity, and by Muslim (998)
Nafi' reported from Ibn 'Umar, may Allah be pleased with them both, that 'Umar ibn al-Khattab acquired land at Khaybar and came to the Prophet, peace be upon him, to consult him. He said: O Messenger of Allah, I have acquired land at Khaybar and never have I acquired property more precious to me; what do you command me? He said: if you wish, sequester its principal and give it as charity. 'Umar gave it as charity on condition that it be neither sold, nor gifted, nor inherited, and that it be spent on the poor, the near relatives, the freeing of captives, in the path of Allah, for the wayfarer and for the guest; and there is no sin on the one who administers it in eating from it in a customary manner and feeding a friend who is not wealthy.
Ibn Sirin, to whom it was narrated, said: who does not amass wealth from it.
Reported by al-Bukhari (2586), in the chapter on conditions in the waqf, and by Muslim (1632)
In another narration of al-Bukhari (2613), reported by Sakhr ibn Juwayriyya from Nafi' from Ibn 'Umar, may Allah be pleased with them both, 'Umar gave as charity a property of his called Thamgh, a palm grove. He said: O Messenger of Allah, I have acquired property that is precious to me and I wish to give it as charity. The Prophet, peace be upon him, said: give as charity its principal, so that it is neither sold, nor gifted, nor inherited, but its fruits are spent. 'Umar gave it as charity in the path of Allah, for the freeing of captives, for the poor, the guest, the wayfarer and the near relatives, with no sin on the one who administers it in eating from it in a customary manner or feeding a friend who is not wealthy.
In the narration of an-Nasa'i and Ibn Majah, from Nafi' from Ibn 'Umar, may Allah be pleased with them both: 'Umar said to the Prophet, peace be upon him: the hundred shares I hold at Khaybar, never have I acquired property more pleasing to me; I intend to give them as charity. The Prophet, peace be upon him, said: sequester their principal and let their fruits run as charity (an-Nasa'i, 3603; Ibn Majah, 2397). In the narration of Ibn Khuzayma and Ibn Hibban, from Nafi' from Ibn 'Umar, may Allah be pleased with them both: 'Umar, may Allah be pleased with him, consulted the Prophet, peace be upon him, about his charity of Thamgh, and he said: sequester its principal and let its fruits run. 'Abdallah said: 'Umar sequestered it for the beggar, the deprived, the wayfarer, in the path of Allah, for the freeing of captives and for the poor, and its custodian would eat from it and feed others without amassing wealth from it (Sahih of Ibn Khuzayma, 2486; Sahih of Ibn Hibban, 4899).
This was, according to the most well-known opinion, the first waqf of Islam (Mughni al-Muhtaj, 3/453). Al-Hafiz Ibn Hajar, may Allah have mercy on him, said: the hadith of 'Umar is a foundation for the legitimacy of the waqf. Ahmad reported, through Hammad ibn Khalid, from 'Abdallah al-'Umari, from Nafi' from Ibn 'Umar: the first charity, that is, the first endowment, that Islam knew was the charity of 'Umar (Musnad of Ahmad, 6460; Sahih of Ibn Khuzayma, 2483).
'Umar ibn Shabba reported from 'Amr ibn Sa'd ibn Mu'adh: we asked about the first sequestration in Islam, and the Emigrants said: the charity of 'Umar, while the Ansar replied: the charity of the Messenger of Allah, peace be upon him; al-Waqidi appears in its chain of transmission, and in the Maghazi of al-Waqidi it is stated that the first endowed charity in Islam consisted of the lands of Mukhayriq, written with a doubled mim in diminutive form, which he bequeathed to the Prophet, peace be upon him, and the Prophet endowed them.
Ibn Hajar said in Fath al-Bari (5/401): al-Subki said: I rejoiced at what Yahya ibn Sa'id reports, in the narration of al-Bayhaqi: give its fruits as charity and sequester its principal, so that it is neither sold nor inherited; the apparent wording attributes the condition to the very words of the Prophet, peace be upon him, unlike the other narrations in which the condition comes from the words of 'Umar. I (Ibn Hajar) add: five chapters before this one, through Sakhr ibn Juwayriyya from Nafi', the Prophet, peace be upon him, said: give as charity its principal, so that it is neither sold, nor gifted, nor inherited, but its fruits are spent: this is the most complete and most explicit narration regarding the intended meaning, so it is more fitting to attribute it to al-Bukhari. Al-Bukhari, moreover, suspended it on his own authority in the chapter of cultivation (al-Muzara'a) in these words: the Prophet, peace be upon him, said to 'Umar: give as charity its principal, so that it is neither sold nor gifted, but so that its fruits may be spent; and he gave it as charity.
I had noted there that ad-Dawudi, the commentator, rejected this wording; I did not know why, then it became clear to me: it is the explicit attribution of the condition to the Prophet, peace be upon him. Even so, even if the condition came from 'Umar, he would only have stated it according to what he had understood from the Prophet, peace be upon him, when he said to him: sequester its principal and let its fruits run.
At-Tirmidhi said: we know of no disagreement, either among the Companions or among the early scholars, on the permissibility of endowing lands (Fath al-Bari, 5/402). Al-Bukhari reported that Abu Ishaq said: I heard 'Amr ibn al-Harith say: the Prophet, peace be upon him, left nothing behind except his white mule, his weapons and a piece of land he left as charity (al-Bukhari, 2718).
Al-Bukhari (34) opens a chapter titled: whoever endows land or a well while stipulating for himself the like of the Muslims' buckets. Anas endowed a house in which he stayed whenever he came. Az-Zubayr gave his houses as charity and told al-Marduda, one of his daughters, to live in one without harming it or being harmed; if she became self-sufficient through a husband, she would have no right to it. Ibn 'Umar made his share of 'Umar's house a dwelling for the needy members of 'Abdallah's family.
In the hadith (2626), 'Abdan reported from his father, from Shu'ba, from Abu Ishaq, from Abu 'Abd ar-Rahman, that 'Uthman, may Allah be pleased with him, when he was besieged, showed himself to them and said: I adjure you by Allah, and I adjure none but the Companions of the Prophet, peace be upon him: do you not know that the Messenger of Allah, peace be upon him, said: whoever digs the well of Ruma will have Paradise, and that I am the one who dug it? Do you not know that he said: whoever equips the army of al-'Usra will have Paradise, and that I am the one who equipped it? They attested the truth of his words. And 'Umar said of his waqf: there is no sin on the one who administers it in eating from it; the endower himself or another may have charge of it; it is ample for everyone (Sahih al-Bukhari, 3/1021).
When 'Uthman was besieged, he showed himself to them from the top of his house, then said: I remind you of Allah: do you know that when Mount Hira' shook, the Messenger of Allah, peace be upon him, said: stay firm, Hira', for there is upon you only a prophet, a truthful one or a martyr? They said: yes. He said: I remind you of Allah: do you know that the Messenger of Allah, peace be upon him, said about the army of al-'Usra: whoever spends an accepted expenditure, while the people were exhausted and in hardship, and that I am the one who equipped that army? They said: yes.
Then he said: I remind you of Allah: do you know that no one drank from the well of Ruma without paying a price, and that I bought it and made it free of charge for the rich, the poor and the wayfarer? They said: yes, by Allah, yes, and he enumerated other things as well.
Reported by at-Tirmidhi (3699), who said: hasan, sahih, gharib hadith
When the son of Adam dies, his deeds cease except for three: an ongoing charity, beneficial knowledge, or a righteous child who supplicates for him.
Reported by Muslim (1631)
The scholars applied the ongoing charity (sadaqa jariya) to the waqf: other charities are not ongoing, for the beneficiary acquires ownership of their objects and benefits immediately; as for the bequest of benefits, although the hadith encompasses it, it is rare; so the charity in the hadith is more fittingly applied to the waqf (Mughni al-Muhtaj, 3/452).
The Prophet, peace be upon him, said: as for Khalid, you are wronging Khalid: he has kept his armor and equipment in the path of Allah (al-Bukhari, 1399; Muslim, 983). Jabir, may Allah be pleased with him, said: none of the Companions of the Messenger of Allah, peace be upon him, who had the means remained without making a waqf. Ibn Qudama, may Allah have mercy on him, said: this constitutes their consensus: whoever among them was able to do so made a waqf, it became well known and no one denied it; it is therefore a consensus (al-Mughni, 5/349). Ash-Shafi'i, may Allah be pleased with him, said in al-Qadim: I was informed that eighty Companions among the Ansar gave as charity restricted charities; ash-Shafi'i indeed calls waqfs "restricted charities" (Mughni al-Muhtaj, 3/453).
Ibn Rushd, may Allah have mercy on him, said: the ahbas, that is, the waqfs, are an established sunna practiced by the Prophet, peace be upon him, and by the Muslims after him.
Malik was told one day that Shurayh disapproved of the habas and said: no habas against the obligations of Allah. Malik replied: Shurayh spoke in his own land without coming to Medina, where he would have seen the traces of the nobles, the wives of the Prophet, peace be upon him, his Companions and the Tabi'un after them, following one another without interruption to this day; and what they sequestered of their wealth no one criticizes; these are, moreover, the charities of the Prophet, peace be upon him, consisting of seven enclosures; a man should only speak of what he knows perfectly.
Malik used the same argument when he debated Abu Yusuf in the presence of ar-Rashid: these are the habas of the Messenger of Allah, peace be upon him, and his charities, transmitted by the generations one after another, century after century. Abu Yusuf then said:
Abu Hanifa held that they were not permissible, and I say they are; he immediately abandoned Abu Hanifa's view in favor of permissibility. It is also reported that a man from Iraq asked Malik about the charity of the habas, and he replied: once sequestered, it is gone. The Iraqi replied: Shurayh said: no habas against the Book of Allah.
Malik, may Allah have mercy on him, then laughed, and he rarely laughed, and said: may Allah have mercy on Shurayh; had he known what the Companions of the Messenger of Allah, peace be upon him, did here, he would not have said that (al-Muqaddimat al-Mumahhadat, 2/417-418).
Ibn Muflih, may Allah have mercy on him, said: al-Qurtubi declared: there is no disagreement among the imams on the endowment of bridges and mosques; they differed over the rest, and the primary opinion is that of the majority of scholars, early and late. Ahmad said: whoever rejects the waqf is in fact rejecting the sunna that the Prophet, peace be upon him, permitted and his Companions practiced (al-Mubdi', 5/312).
Al-Kasani, may Allah have mercy on him, said: there is no disagreement among the scholars on the permissibility of the waqf regarding the obligation to give its yield as charity as long as the endower is alive: whoever endows his house or his land is obliged to give its revenues as charity, like one who vows to give its yield; nor is there any disagreement on its permissibility when ownership of the corpus lapses by being attached to it: the property is then inherited, and its fruits are given as charity to the poor, the near relatives, the freeing of captives, in the path of Allah, to the wayfarer and the destitute, with no sin on the custodian in eating from it in a customary manner and feeding someone who is not wealthy (Hujjat Allah al-Baligha, 2/180).
The cause of the waqf is love of what the self cherishes in this world, among the living, and, in the hereafter, seeking nearness to the Lord of lords, the Mighty, the Exalted (Sharh Fath al-Qadir, 6/200; al-Bahr ar-Ra'iq, 5/202). The default rule is that the waqf is recommended and meritorious, for it is a good deed urged by the Law, and it falls under charity (al-Mukhtasar al-fiqhi, Sharh hudud Ibn 'Arafa by ar-Rassa', 13/5 and 7; Mawahib al-Jalil, 7/475; Manah al-Jalil, 8/108; al-Mubdi', 5/312; Sharh Muntaha al-Iradat, 4/329).
It may nevertheless take on other rulings. It becomes obligatory when made the object of a vow, as when one says: if my father arrives, I must endow this house; when the father arrives, it is a vow whose fulfillment becomes obligatory. Likewise the man who loses something and says: if I find it, it is upon me, for Allah, to endow this land of mine for the wayfarers; if he finds it, fulfillment is due from him. It is also incumbent upon the imam to endow a mosque from the public treasury of the Muslims; if there is nothing in the treasury, the burden falls upon the Muslims (Sharh Fath al-Qadir, 6/208; al-Bahr ar-Ra'iq, 5/206; Durrar al-Hukkam, Sharh Ghurar al-Ahkam, 2/408; Hashiyat Ibn Abidin, 4/339).
The waqf may also be unlawful, as when it is devoted to disobedience: one who endows it for a church or a temple in which other than Allah is worshipped and partners are associated with Him. It is likewise unlawful, according to the Malikis in one of the reported opinions, to endow for the sons to the exclusion of the daughters, for it resembles the practice of the jahiliyya of depriving daughters of their father's inheritance; the question nevertheless has six opinions. Ad-Dusuqi, may Allah have mercy on him, said: the endowment for the sons to the exclusion of the daughters has several opinions.
The adopted opinion among these is the second, as the commentator said. The point of disagreement arises when the endowment for the sons to the exclusion of the daughters occurs in a state of validity and the sequestration took place before the impediment. If the endowment was made in a state of terminal illness, it is void by consensus even if sequestered, for it is a gift to an heir; if it was made in good health but the impediment occurs before the sequestration, it is likewise void by consensus. The same applies as long as no judge, even a Maliki judge, has ruled it valid; otherwise it is valid by consensus, for the judge's ruling removes the disagreement (Hashiyat ad-Dusuqi 'ala ash-Sharh al-kabir, 5/460-461; Hashiyat as-Sawi 'ala ash-Sharh as-saghir, 9/164; Manah al-Jalil, 7/114).
Mawat is land that has no owner, no water and no development, and from which no benefit is drawn unless water is brought to it, a spring is brought forth in it, or a well is dug in it; it is also called mayyita (Mawahib al-Jalil, 7/454; an-Nihaya of Ibn al-Athir, 3/370; Lisan al-'Arab, 2/93; al-Misbah al-Munir, 2/584).
The Hanafis said: mawat is land from which no benefit is derived because water is cut off from it, or water prevails over it, or it is rock, salt marsh (sabkha) or similar terrain that prevents cultivation, and it belongs to no one; it was so named by analogy with the dead animal, from which no benefit is derived (al-Hidaya, 4/98; al-Ikhtiyar, 3/83; al-Jawhara an-Nira, 4/220; Mukhtasar al-Wiqaya, 2/200).
The Malikis said: the mawat of land is what is free from being appropriated by any means (ash-Sharh al-kabir with the Hashiya of ad-Dusuqi, 5/439; Tahbir al-Mukhtasar, 4/624).
The Shafi'is said: mawat is land without water from which no one benefits unless he leads water to it, brings forth a spring in it or digs a well in it. Its limit: what is neither developed ('amir) nor within the reserved zone (harim) of developed land, whether near or far. This mawat is of two kinds: incidental mawat, which is what fell into ruin after being developed, and original mawat, which has never been developed (an-Najm al-Wahhaj, 5/407; Mughni al-Muhtaj, 3/426).
The Hanbalis said: mawat is land stripped of the marks of appropriation and of the ownership of a protected person. Its limit according to them: what is neither developed nor within the reserved zone of developed land, even if contiguous to developed land (Kashshaf al-Qina', 4/224; Sharh Muntaha al-Iradat, 4/257; al-Ahkam as-Sultaniyya of Abu Ya'la, 209).
The definition of ihya' (revival) in technical usage: the Hanafis said: ihya' is development, namely making dead lands fit for cultivation by uprooting their thorns and clearing away their stones; the one who develops the land is called muhyi, the one who revives it (Durrar al-Hukkam, 3/7). Al-Ghanimi, may Allah have mercy on him, said: ihya', in language, means making a thing alive, that is, possessing sensitive or growing power; in terms of the Law, it is the development of dead land by building, planting, plowing or otherwise, as stated in the Qahstani (al-Lubab, 1/679).
The legitimacy of reviving mawat is established by the authentic Sunna and by certain consensus.
As for the Sunna: 1. From 'Urwa, from 'Aisha, may Allah be pleased with her, the Prophet, peace be upon him, said:
Whoever develops land that belongs to no one has more right to it.
Reported by al-Bukhari (2210)
'Urwa said: 'Umar, may Allah be pleased with him, ruled on this basis during his caliphate, and 'Ali considered that the ruined land of Kufa was mawat. 2. From Sa'id ibn Zayd, may Allah be pleased with him, the Messenger of Allah, peace be upon him, said:
Whoever revives dead land, it is his, and no unjust root has any claim to it.
Sahih hadith, reported by Abu Dawud (3073), at-Tirmidhi (1378) and an-Nasa'i in al-Kubra (5761)
Malik said: the unjust root refers to anything dug, taken or planted without right (al-Muwatta', 2/743, no. 1424). 3. From Jabir, may Allah be pleased with him, the Prophet, peace be upon him, said:
Whoever revives dead land, it is his, and whatever he consumes of it innocently (al-'afiya) is his, as charity.
Sahih hadith, reported by Imam Ahmad in his Musnad (14310, 14401, 14540, 14677, 14882, 15132), ad-Darimi (2607), at-Tirmidhi (1379), an-Nasa'i in al-Kubra (5757) and Ibn Hibban in his Sahih (5202, 5203, 5204)
4. 'Urwa said: I bear witness that the Messenger of Allah, peace be upon him, ruled that the land is the land of Allah and the servants are the servants of Allah, and that whoever revives dead land has more right to it; this reached us from the Prophet, peace be upon him, through those who transmitted the reports concerning prayers from him (sahih hadith, reported by Abu Dawud, 3076, and al-Bayhaqi in al-Kubra, 11553). 5. From Samura ibn Jundub, may Allah be pleased with him, the Prophet, peace be upon him, said: whoever surrounds land with an enclosure, it is his (sahih hadith, reported by Abu Dawud, 3077, and Ahmad, 20251).
The sayings of the Companions: 1. Malik reported from Ibn Shihab, from Salim ibn 'Abdallah, from his father, that 'Umar ibn al-Khattab, may Allah be pleased with him, said: whoever revives dead land, it is his; and Malik added: the rule with us is upon this basis (al-Muwatta', 2/744, no. 1424, mursal). 2.
Al-Bukhari reported, from 'Urwa, from 'Aisha, may Allah be pleased with her, that the Prophet, peace be upon him, said: whoever develops land that belongs to no one has more right to it; 'Urwa said: 'Umar ruled on this basis during his caliphate, and 'Ali considered that the ruined land of Kufa was mawat (al-Bukhari, 2210). 3. From Salim, from Ibn 'Umar, may Allah be pleased with them both: in the time of 'Umar, people staked claims with boundary stones over land that belonged to no one, and 'Umar said: whoever revives dead land, it is his (reported by Ibn Abi Shayba in his Musannaf, 4/486, no. 22379, and Yahya ibn Adam in al-Kharaj, 286; sahih hadith).
4. Ibn Abi Shayba reports in his Musannaf a saying suspended on Ibn 'Abbas, may Allah be pleased with them both: the frontiers of the land belong to Allah, His Messenger and you thereafter, and whoever revives any part of the dead lands has more right to it (Musannaf of Ibn Abi Shayba, 4/487, no. 22385; al-Bayhaqi in al-Kubra, 6/143, no. 11565).
5. From Hisham, from al-Hasan, a saying suspended: whoever revives dead land that belonged to no one before him, it is his; Hisham said: 'Umar ibn 'Abd al-'Aziz wrote to that effect (Musannaf of Ibn Abi Shayba, 4/487, no. 22387).
As for consensus: a great number of Muslim scholars transmitted consensus on the permissibility of reviving mawat. Imam Ishaq ibn Rahawayh, may Allah have mercy on him, said: the sunna of the Prophet, peace be upon him, has passed that whoever revives dead land owns its corpus, and the Messenger of Allah, peace be upon him, said: the frontiers of the land belong to Allah Most High and His Messenger, peace be upon him, then to you; whoever revives any part of the dead lands owns its corpus. Once the sunna of attributing the corpus of dead land to the one who revives it was established, it became a prescribed sunna; the caliphs after him acted accordingly, and the scholars of the provinces of our time and before all agreed that no governor, no scholar and no group among them has ever differed on this matter (Masa'il al-Imam Ahmad, 2/195).
Al-Juwayni, may Allah have mercy on him, said: the Muslims agreed on the principle, that is, the principle of revival, even though they differed over the details (Nihayat al-Matlab, 8/281). Al-'Imrani said: the Muslims agreed on the permissibility of reviving dead lands and acquiring ownership by means of it (al-Bayan, 7/474). Al-Wazir Ibn Hubayra said: they agreed on the permissibility of reviving bare dead land (al-Ifsah, 2/41). Imam Ibn Qudama said: the generality of the jurists of the provinces holds that mawat becomes property by revival, even though they differ over its conditions (al-Mughni, 5/328).
Ad-Damiri said: consensus is firmly concluded on its permissibility in general (an-Najm al-Wahhaj, 5/407).
Ibn Hazm, may Allah have mercy on him, said: they agreed that if the imam grants land that has never been developed in Islam, by any Muslim, protected subject (dhimmi) or enemy combatant, nor among the lands covered by a peace concluded with the people of protection, nor benefiting its neighbors, nor lying amid settled lands or near settled land, such that if someone stood at the edge of the nearest settlement and shouted at the top of his voice, he would not be heard from that settlement, then that land is developed by the one to whom it was granted or by the one who revives it, with a plow or (the text continues)...
The 'ariya is the authorization to benefit from a specific object of wealth (al-Mughni, 5/128; al-Matla', p. 272). It has also been said: it is the authorization to enjoy the benefits of objects whose enjoyment is valid on condition that the object itself remains. It has also been said: it is the gift (hiba) of the benefit of the object itself.
The reason for its name: the scholars differed over why the 'ariya bears this name. As-Sarakhsi, may Allah have mercy on him, said: it was called 'ariya because it strips itself of any compensation ('iwad), the 'ariya and the 'ariyya, which is the gift of fruits by transfer of ownership without compensation, deriving from a single root; the 'ariyya is the gift of fruits by transfer of ownership without reward, and the same applies to the 'ariya with regard to the benefit; that is why it was restricted to what can be benefited from on condition that the object remains, or whose benefits may be transferred for compensation by a lease contract (al-Mabsut, 11/133).
According to another explanation, it derives from ta'awur, that is, alternation: it is as if the owner granted another a turn of enjoyment of his property, on condition that the turn returns to him by reclaiming it whenever he wishes; that is why the consumption loan (qard) of measured or weighed things is not an 'ariya: they can only be enjoyed by consuming the object, so the turn does not return to him in that same object to constitute a true 'ariya, but returns to him in its equivalent; and whatever a person may enjoy on condition that its equivalent is guaranteed against him is a qard (al-Mabsut, 11/133).
Al-Mawsili, may Allah have mercy on him, said: it derives from ta'awur, that is, circulation and alternation; one says: we passed the word back and forth between us, that is, we circulated it; the contract was named thus because people circulate the object and pass it from hand to hand; or it derives from the 'ariyya, which is the gift, except that the 'ariyya was restricted to the objects themselves and the 'ariya to the benefits; it was also so named because it strips itself of any compensation (al-Ikhtiyar, 3/68). Al-Bahuti, may Allah have mercy on him, said: it is taken from ta'awur, alternation, in that the owner grants the borrower a turn of enjoyment (Kashshaf al-Qina', 4/77; Sharh Muntaha al-Iradat, 4/99).
Al-Jawhari, may Allah have mercy on him, said: it is as if it were derived from al-'ar, shame, because asking for it is shameful; it has also been said that it derives from ta'awur, as in the speech of the Arabs: they circulated the thing, they passed it around and back, that is, they exchanged it turn by turn; and one says: he lent it to him, he lends, he borrowed a garment from him and lent it to him (Tahrir alfaz at-Tanbih, 209).
This last explanation was rejected, for the 'ariya is a recommended practice, and if the borrower is in need there is no shame upon him; shame attaches only to what the Law declares ugly, which is not the case here; and if the 'ariya derived from shame, its formation would be with a ya. Yet people say that they lend to one another, although it is also said that they pass it around turn by turn, that is, some lend to others; its root is 'ayra on the pattern fa'la: the waw shifted and the vowel before it opened, so that it turned into an alif (Hashiyat as-Sawi 'ala ash-Sharh as-saghir, 8/181).
This rejection is further supported by the words of Allah Most High:
"and refuse al-ma'un (small kindnesses)"
Surah Al-Ma'un, 7
Al-ma'un designates what helps a brother in his needs, such as the axe, the pot and the like: whoever withholds such things is the very embodiment of miserliness; may Allah preserve us from petty concerns and the miserliness of hearts. Moreover, the Prophet, peace be upon him, practiced borrowing; had asking for the 'ariya been shameful, he would not have practiced it, for the Prophet, peace be upon him, is described as possessing refined and honored morals and magnified qualities (Anis al-Fuqaha', 251-252).