Islamic Fiqh > Endowments (waqf) and property > Conditions for the validity of a waqf > a) A person's waqf for himself
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Updated on 06 October 2026 at 10:50 PM
This part belongs to the section: All parts.
Third condition: that the waqf not revert to its maker. The jurists disagreed concerning the waqf: must its validity require that it not revert to the founder's person, or may a person make a waqf for himself, or stipulate the revenue for himself?
a) A person's waqf for himself. The jurists disagreed on its validity: is it valid or not? The majority of jurists, the Malikis, the Shafi'is according to the soundest view, the Hanbalis in the madhhab, and Muhammad ibn al-Hasan among the Hanafis, said that a person's waqf for himself is not valid; for the waqf is a transfer of ownership, of the person or of the benefit, and neither occurs here: he cannot own himself from himself, as he cannot sell his own wealth to himself. The Prophet said:
Confine the principal and give the yield freely in charity.
Authentic hadith, cited previously in the chapter
By giving away the yield, it is excluded that he have a right in it; the waqf is a charity, and a person's charity for himself is not valid; the waqf is a contract that requires the departure of ownership, so it becomes like sale and gift: the sale of oneself or the gift of oneself being impossible, the waqf upon oneself is impossible too; excepting for oneself the benefits of the waqf is like excepting in one's favor, in manumission, the rules of slavery, which is not permitted there; finally, the waqf removes an ownership and creates another, and one who makes a waqf for himself removes no ownership by his waqf nor creates one: it is therefore not permitted that it become a waqf (al-Ishraf, 3/253, no. 1096; al-Ma'una, 2/492-493; al-Hawi al-Kabir, 7/525; al-Bayan, 8/66; Rawdat al-Talibin, 4/137; al-Muharrar fi l-Fiqh, 1/369).
The Malikis said: a person may not make a waqf for himself; for whoever owns something under one aspect cannot transfer it to himself under another aspect, as when he gives away something of his wealth; and this constitutes confinement upon him and his heir after his death, whether it is upon his person alone, that is, from the outset, or after he confined it to others, such as a confinement for Zayd and Amr, then, after their death, for my two selves then for me, or if he remained silent about what follows: the first case is a waqf with a broken middle, the second with a broken end. Or with a partner, such as a waqf for himself and so-and-so, or the poor: for example, he endows two houses for himself and a person, one designated for him and the other for the other, without his partner taking possession of it before his death: the waqf is not valid, neither for him nor for his partner.
If the partner takes possession before the impediment (death, bankruptcy or madness), and the case is shared between partnership and co-ownership: if they all take possession before the impediment, the benefit is established for them; otherwise not. If he endows it for himself, then his children and descendants, it reverts, after his death, as a confinement to his descendants if they take possession before the impediment; otherwise it is void; that is when the waqf is made in good health; if made during illness, it is valid if the third bears it (al-Ishraf, 3/253, no. 1096; al-Ma'una, 2/492-493; Hashiyat al-Dasuqi with al-Sharh al-Kabir, 5/462-463; al-Taj wa-l-Iklil, 4/566-567; Sharh Mukhtasar Khalil, 7/84; Tahbir al-Mukhtasar, 4/644; Hashiyat al-Sawi, 9/158).
The Shafi'is said: a person's waqf for himself is not valid according to the explicit soundest view; for it is impossible for a person to transfer his own property to himself, it being already attained, and attaining the attained is impossible; the waqf being a transfer of the person and of the benefit, he cannot own himself, as this is not permitted in sale and gift; and for the same arguments mentioned previously: the saying "Confine the principal and give the yield freely in charity," by which it is excluded that he have a right in the yield; the waqf being a charity, and a person's charity for himself not being valid; the waqf being a contract that requires the departure of ownership; excepting for oneself the benefits of the waqf being like excepting in one's favor, in manumission, the rules of slavery; and the waqf removing an ownership and creating another, which does not occur when he makes the waqf for himself.
There is an exception: if he makes a waqf for the scholars or their like, such as the poor, qualifying himself with that quality, or for the poor and then becomes poor, or for the Muslims, such as a book for reading, a pot for cooking in, or a jug for drinking from: he benefits with them, for he did not intend his own person. His stipulation of looking after it for himself is valid, even for compensation, at the rate of the wage of the like or less: he is entitled to it by his work, not by the waqf. If a judge who deems it valid rules in its favor, it takes effect and is not annulled; for it is a matter of juristic reasoning (ijtihad) (al-Hawi al-Kabir, 7/525; al-Bayan, 8/66; Rawdat al-Talibin, 4/137; Mughni al-Muhtaj, 3/458-459; Nihayat al-Muhtaj, 5/420-421; Kanz al-Raghibin, 3/245; al-Najm al-Wahhaj, 5/466; al-Dibaj, 2/519).
The Hanbalis in the madhhab said that a person's waqf for himself is not valid. It is reported from Ahmad, may Allah have mercy on him, concerning one who endows for himself, then for the needy or his child, in the report of Abu Talib, that he was asked about this and said: "I know of no waqf except what is produced for Allah the Most High or in His path; if he confines it to himself until he dies, I do not recognize it. The reason is that the waqf is a transfer of ownership of the person or of the benefit, and a person cannot own himself from himself, as it is not permitted for him to sell his own wealth to himself; the waqf upon oneself has no effect except preventing oneself from disposing of the principal, which is not valid, as if he said: "I will neither sell this, nor give it as a gift, nor bequeath it.
If he does so by endowing for himself, then for one who can receive a waqf, like his child, the waqf is diverted immediately to what follows, according to the sounder of the two reports; for the presence of one who cannot receive a waqf is like his absence, as if he had made the waqf for what follows from the outset; if he mentioned none but himself, his property remains as it is and is inherited from him. He says in al-Furu': when a judge rules where ruling is permitted to him, the apparent of their words is that his ruling takes effect. He says in Sharh al-Muntaha: from this is taken the permission to judge according to the outweighed view. End of quotation.
Al-Bahuti, may Allah have mercy on him, said: this concerns the mujtahid, as his saying "where ruling is permitted to him" indicates; as for the muqallid, no (Kashshaf al-Qina, 4/301; see al-Mughni, 5/353; al-Sharh al-Kabir, 6/194-195; al-Furu', 4/444; Sharh Muntaha al-Iradat, 4/338-339; Matalib Uli al-Nuha, 4/285).
Abu Yusuf among the Hanafis, which is the relied-upon view in the madhhab; the Shafi'is against the soundest view, the choice of a group among them: Ibn Surayj, al-Zubayri, Ibn al-Sabbagh and most of the masters of Khurasan, al-Ruyani having permitted fatwa by it; and the Hanbalis in one report, upon which they act and which is the choice of the shaykh of Islam Ibn Taymiyya: all said that a person's waqf for himself is valid; for one's entitlement to a thing as a waqf differs from one's entitlement to it as ownership; and he may intend its confinement by preventing himself from the disposal that removes ownership. It is reported that Umar, may Allah be pleased with him, said when he endowed:
No sin upon the one in charge of it to eat from it with propriety and to feed a man who is not wealthy.
Narrated by al-Bukhari (2586) and Muslim (1632)
He thus permitted the custodian to eat from it; and the custodian may be the founder himself, and the waqf remained in his hand until he died. It is reported that Uthman, may Allah be pleased with him, said when he endowed the well of Ruma:
May I draw from it as the Muslims draw.
Narrated by al-Nasa'i (3608), al-Tirmidhi (3703), Ibn Hibban in his Sahih (2492), Ibn Abi Asim in al-Sunna (1005) and al-Daruqutni (4/197); good hadith
The Prophet manumitted Safiyya and made her manumission her dower, after having produced it for Allah; Umar ibn al-Khattab, may Allah be pleased with him, endowed one of his houses and dwelt in it until he died; and al-Zubayr ibn al-Awwam, may Allah be pleased with him, made his mounts movable endowments and dwelt in one of the houses until he left for Iraq. From Anas, may Allah be pleased with him, the Prophet saw a man leading a sacrificial animal and said to him: "Mount it"; the man replied: "O messenger of Allah, it is a sacrificial animal"; and he said on the third or the fourth occasion: "Mount it, woe to you" (narrated by al-Bukhari, 2603). And from Abu Hurayra, may Allah be pleased with him, a similar report: the Prophet saw a man leading a sacrificial animal and said: "Mount it"; he replied: "O messenger of Allah, it is a sacrificial animal"; he said: "Mount it, woe to you," on the second or the third occasion (narrated by al-Bukhari, 2604).
If it is permitted for him to benefit from what he gave after leaving his ownership without condition, it is more fitting to permit it with condition. And since he and others are equal in the general waqf, they may be equal in the specific waqf; the waqf is indeed general or specific: it is established that he has a share in the general waqf, since he may pray in his mosque and drink from his fountain; likewise in the specific waqf (al-Mughni, 5/352-353; the preceding sources).
The Hanafis said: Abu Yusuf declared: if he endows for himself, then for causes after him, it is permitted, according to the waqf of Umar, may Allah be pleased with him, who stipulated "no sin upon the custodian to eat from it and feed a man who is not wealthy," and he himself was its custodian; and because he is one of the two types of waqf, so that the founder may be one of the beneficiaries, like the grave or the mosque; and because it is a waqf for a determined one, as if he had endowed for his child, having stipulated spending on one upon whom there is no sin in spending, as if he had stipulated that it be spent on another. And because the waqf is the removal of ownership to Allah the Most High for a nearness: when he stipulates part or all for himself, he has devoted to his own person what has become the property of Allah, and not made his own property belong to himself, which is permitted; like one who builds a khan or a fountain, or makes his land a cemetery, stipulating that he lodge in it, drink from it or be buried in it.
And because his purpose is nearness, and spending on oneself is a charity. He said, peace be upon him: "A man's spending on himself is a charity. Ibn Hajar, may Allah have mercy on him, said: the meaning of this hadith has been reported through many chains that render it famous. Ibn Majah reported from Miqdam ibn Ma'dikarib that the Prophet said:
No earning is purer than the earning of the hand; and what a man spends on himself, his family, his child and his servant is a charity for him.
Narrated by Ibn Majah
Al-Nasa'i reported it from Baqiyya, from Bahir, with the words: "What you feed your own body is a charity for you," and the full hadith. Ibn Hibban reported it in his Sahih from Abu Sa'id, from the Prophet:
Any man who earns lawful wealth and feeds his own body with it, or clothes it, himself or anyone of Allah's creation in his care, has for it the reward of a charity.
Narrated by Ibn Hibban in his Sahih (4236)
Al-Hakim reported it too, but with the words: "it is for him a charity," and he said: authentic chain, without al-Bukhari and Muslim including it. Al-Hakim and al-Daruqutni also reported from Jabir that the messenger of Allah said:
Every good deed is a charity; what a man spends on himself and his family is a charity for him; and what he protects his honor with is a charity.
Narrated by Abd ibn Hamid in his Musnad (1083), Abu Ya'la in his Musnad (2040), al-Hakim in al-Mustadrak (2/57), al-Daruqutni (3/28) and al-Bayhaqi in Shu'ab al-Iman (3495)
In the hadith, Muhammad ibn al-Munkadir was asked about the meaning of "protects his honor" and said: giving to the poet and to the one who guards his tongue. Al-Tabarani reported from Abu Umama that the Prophet said:
Whoever spends on himself, it is a charity for him; whoever spends on his wife, his family and his child, it is a charity for him.
Narrated by al-Tabarani
This hadith is weak: Ibn al-'Adi noted it in al-Kamil (2/7) because of Bishr ibn Numayr, and a group declared it weak in agreement (see Nasb al-Raya, 3/480). In the Sahih of Muslim, from Jabir, the Prophet said to a man:
Begin with yourself and give charity for it; if anything remains, it will be for your family.
Narrated by Muslim (997)
Abu Yusuf's view therefore prevailed. Al-Sadr al-Shahid said: the fatwa follows Abu Yusuf's view, and we too give the fatwa according to it, to encourage people toward the waqf; the masters of Balkh chose it; likewise the apparent meaning of al-Hidaya, which deferred this view without rejecting it (Sharh Fath al-Qadir, 6/227; al-'Inaya, 8/349-350; al-Bahr al-Ra'iq, 5/238; al-Muhit al-Burhani, 5/711; Ibn Abidin, 4/397; al-Tajrid of al-Quduri, 8/3796; al-Is'af, p. 94; al-Jawhara al-Nayyira, 4/109; al-Lubab, 1/625).
Al-Mirdawi said: the waqf for oneself is valid; it is acted upon, according to this report, in our time and before it, under our rulers, throughout long eras; it is the correct view, with great benefit and an encouragement to do good; it is among the merits of the madhhab (al-Insaf, 7/18). The shaykh of Islam Ibn Taymiyya, may Allah have mercy on him, said: the waqf for oneself is valid; it is one of the two reports from Ahmad, chosen by a group of his companions (al-Fatawa al-Kubra, 4/505).
b) Stipulating the revenue (al-ghalla) for oneself. The jurists disagreed: if the founder stipulates the revenue during his lifetime, or stipulates to eat from it, is it valid or not?
The Hanafis according to the relied-upon view, the Hanbalis and the Shafi'is against the soundest view (the choice of Ibn Surayj, al-Zubayri, Ibn al-Sabbagh and most of the masters of Khurasan, al-Ruyani having permitted fatwa by it): the founder may stipulate the revenue for himself as long as he lives, or stipulate to eat from it. Ibn Qudama, may Allah have mercy on him, said: when the founder stipulates in the waqf to spend from it on himself, the waqf and the condition are valid; Ahmad stated it explicitly.
Al-Athram said: Abu Abdillah (Ahmad) was asked: may one stipulate in the waqf "that I spend from it on myself and my family"? He said: yes, and he argued with: "I heard Ibn Uyayna from Ibn Tawus, from his father, from Hujr al-Madriji: in the charity of the messenger of Allah, peace and blessings of Allah be upon him, it was provided that his household eat from it with propriety, not abuse."
The qadi (Abu Ya'la) said: the waqf is valid on a single report, Ahmad having stated it explicitly in several reports; Ibn Abi Layla, Ibn Shubruma, Abu Yusuf, al-Zubayr and Ibn Shurayh said likewise. Malik, al-Shafi'i and Muhammad ibn al-Hasan said: the waqf is not valid; for it is a removal of ownership, and one cannot therefore stipulate his benefit, as in sale and gift, or like one who manumits a slave on condition that he serve him; and what he spends on himself is unknown, so that its stipulation is not valid, like one who sells a thing stipulating to benefit from it.
We answer them: the report mentioned by Imam Ahmad; and Umar, may Allah be pleased with him, said when confining: "no sin upon the custodian to eat from it or feed a friend who is not wealthy," and the waqf remained in his hand until he died; and when he makes a general waqf, such as the mosques, the fountains, the ribats and the graves, he benefits from it: likewise here; there is no difference between stipulating the benefit for the whole of his life or for a known period, nor between quantifying what he eats from it or not: Umar, may Allah be pleased with him, quantified what the custodian eats and gives only by his saying "with propriety"; and in the hadith of the charity of the messenger of Allah, he stipulated that his household eat from it with propriety, not abuse. If he stipulates the benefit for a specified period and dies within it, it should go to his heirs, like one who sells a house stipulating to dwell in it for a year and dies during the year; Allah knows best.
If he stipulates that his family eat from it, the waqf and the condition are valid; for the Prophet stipulated that in his charity; and if he stipulates that the custodian eat from it and feed a friend, it is permitted: Umar, may Allah be pleased with him, stipulated that in his charity, concerning which he consulted the messenger of Allah, peace and blessings of Allah be upon him; if the founder is its custodian, he is entitled to eat and feed, Umar having been the custodian of his charity; if a member of his household has charge of it, he is entitled to that: Hafsa bint Umar had charge of it after her father's death, then Abdallah ibn Umar after her (al-Mughni, 5/352-353; see al-Sharh al-Kabir, 6/195; Sharh al-Zarkashi, 2/199; al-Insaf, 7/18; al-Furu', 4/444; Kashshaf al-Qina, 4/301; Sharh Muntaha al-Iradat, 4/338-339; Matalib Uli al-Nuha, 4/285; Manar al-Sabil, 2/326).
Al-Tahawi, may Allah have mercy on him, said: Bishr reported from Abu Yusuf: even if he excepts that, from the endowed charity, it be spent on himself during his lifetime, it remaining forever, that is permitted (Mukhtasar Ikhtilaf al-Ulama, 4/163).
The Hanafis invoked the proofs already mentioned in the previous issue of the waqf for oneself; and because the waqf is the removal of ownership to Allah for a nearness: stipulating part or all for oneself is not making one's own property belong to oneself, but devoting to one's person what has become the property of Allah, which is permitted; like one who builds a khan, a fountain or makes his land a cemetery, stipulating to lodge in it, drink from it or be buried in it; and because his purpose is nearness, spending on oneself being a charity; then the hadith "A man's spending on himself is a charity" and its parallels already cited. Abu Yusuf's view prevailed, and al-Sadr al-Shahid said the fatwa is according to him, to encourage people toward the waqf.
In al-Is'af: if a man says "my land is an endowed charity for Allah, on condition of having its revenue all my life, then, after me, for my son, my son's son and my descendants forever," or "then, after me, for the sons of Zayd and their descendants as long as they propagate, then, after them, for the needy," it is permitted according to Abu Yusuf, may Allah have mercy on him; who is the view of Ahmad, Ibn Abi Layla, Ibn Shubruma, al-Zuhri and Ibn Surayj among the companions of al-Shafi'i; the masters of Balkh took it, and al-Sadr al-Shahid mentioned that the fatwa is according to it, to encourage people toward the waqf. It is not permitted according to Muhammad's analogy, which is the view of Hilal; and it is the view of Malik and al-Shafi'i; likewise his waqf for himself is not permitted; and Hilal derived many branches from it (al-Is'af, p. 94).
The shaykh of Islam Ibn Taymiyya, may Allah have mercy on him, said: it is also permitted for the founder, when he endows something, to except its benefit and revenue entirely for himself during his lifetime, as it is reported that the Companions did; and a mursal hadith of the Prophet, peace and blessings of Allah be upon him, has been reported on it (Majmu al-Fatawa, 29/134).
The Malikis, the Shafi'is according to the soundest view and Muhammad ibn al-Hasan among the Hanafis said that stipulating the revenue, or eating from it, is not valid, for his saying "Confine the principal and give the yield freely in charity," by which it is excluded that he have a right in the yield; the waqf is a charity, and a person's charity for himself is not valid; excepting for oneself the benefits of the waqf is like excepting in one's favor, in manumission, the rules of slavery, which is not permitted there.
The Shafi'is said: if a judge who deems it valid rules in its favor, it takes effect and is not annulled; for it is a matter of juristic reasoning (al-Hawi al-Kabir, 7/525; al-Bayan, 8/66; Rawdat al-Talibin, 4/137; Mughni al-Muhtaj, 3/458-459; Nihayat al-Muhtaj, 5/420-421; Kanz al-Raghibin, 3/245; al-Najm al-Wahhaj, 5/466; al-Dibaj, 2/519; al-Ishraf, 3/253, no. 1096; al-Ma'una, 2/492-493; Hashiyat al-Dasuqi, 5/462-463; al-Taj wa-l-Iklil, 4/566-567; Sharh Mukhtasar Khalil, 7/84; Tahbir al-Mukhtasar, 4/644; Hashiyat al-Sawi, 9/158; al-Jawhara al-Nayyira, 4/109).
There is no disagreement among the scholars on the validity of the waqf when it is not broken, by devoting it to a category that does not die out, such as the mosques and the poor. They disagreed, however, when the waqf is broken at the beginning, the middle or the end: is it valid or not? The answer is given in detail, and it is grasped through the forms and situations of the waqf.
The waqf is never without situations:
First situation: the beginning and the end are known (continuous at the beginning and the end). There is no disagreement among the Muslim jurists: the waqf with known beginning and end is valid. This takes two forms. The first: he endows for a people determined by a quality that custom does not allow to die out, such as the poor and the needy, the students of knowledge or the travelers, or a tribe that does not die out, like the Banu Tamim; there is no disagreement among the Muslim jurists on its validity.
Ibn Qudama, may Allah have mercy on him, said: the waqf whose validity admits no dispute is the one with known beginning and end, not broken, such as devoting it to the needy or to a group whose dying out is not possible by custom (al-Mughni, 5/363).
The second: he endows for a determined people who die out by custom, then, after them, for what does not die out, such as his children and grandchildren and, when they die out, for the poor and needy, whose effect never ceases; likewise if he says "this is a waqf for my child during my lifetime, then, after my death, for the needy": valid, for it is a waqf continuous at the beginning and the end (Sharh Fath al-Qadir, 6/213; al-'Inaya, 8/331-332; al-Jawhara al-Nayyira, 4/101; al-Lubab, 1/621; al-Bahr al-Ra'iq, 5/204, 212; Ibn Abidin, 4/141; al-Dhakhira, 6/339; Hashiyat al-Dasuqi, 5/463; al-Fawa'id al-Dawani, 2/162; Hashiyat al-Sawi, 9/159; al-Muhadhdhab, 1/441; al-Bayan, 8/68; Rawdat al-Talibin, 4/145-146; Mughni al-Muhtaj, 3/465-466; Nihayat al-Muhtaj, 5/429; Kanz al-Raghibin, 3/251; al-Najm al-Wahhaj, 5/485; al-Dibaj, 2/523; al-Mughni, 5/363; al-Sharh al-Kabir, 6/202-203; Sharh al-Zarkashi, 2/201; al-Mubdi', 5/327-328; al-Insaf, 6/34; Matalib Uli al-Nuha, 4/294).
Shaykh Abu Hamid, among the Shafi'is, said: it is not permitted that the beginning be known by quality and the end by naming, as if he says "I endow it for the poor and the needy, then for my children, or for the Banu Tamim"; for this has no end: the world never lacks poor and needy people. Unless he fixes its duration, as if he says "I endow it for the poor and the needy for a year or ten years, then for my children, then for the Banu Tamim": it is then valid (al-Bayan, 8/68).
The Hanbalis said: if he says "it is a waqf for the needy, then for his child," it is valid for the needy and not for his child; for the needy do not die out (Matalib Uli al-Nuha, 4/294).
The jurists disagreed when the beginning and the end of the waqf are unknown: is it valid or not? As if he says "I have endowed my house for my children" while he has no children, or "for men," or "for my slave," or "for this woman's embryo.
The Hanafis, the Shafi'is and the Hanbalis said that this waqf is not valid; for the waqf is a transfer of ownership of the person and the benefit: it is not valid for one who does not own, like the slave, nor for what has not been created, except as a follower of a valid beneficiary, which would then be a transfer, and the embryo cannot validly be owned except by inheritance or will, just as sale and hire are not valid without prior ownership; nor for the unknown, such as "a man" or "men" (al-Muhadhdhab, 1/441; al-Bayan, 8/68; Rawdat al-Talibin, 4/145-146; Mughni al-Muhtaj, 3/465-466; Nihayat al-Muhtaj, 5/429; Kanz al-Raghibin, 3/251; al-Najm al-Wahhaj, 5/485; al-Dibaj, 2/523; al-Mughni, 5/363; al-Sharh al-Kabir, 6/202-203; Sharh al-Zarkashi, 2/201; al-Mubdi', 5/327-328; al-Insaf, 6/34; Matalib Uli al-Nuha, 4/294; Kashshaf al-Qina, 4/304; Sharh Muntaha al-Iradat, 4/341).
Among the Hanafis: the waqf is not valid according to
Abu Hanifa and Muhammad as long as its end is not devoted to a category that does not die out, such as the poor and needy; and complete breakage at beginning and end is not valid by agreement, even if some, like Ibn Nujaym, al-Haskafi and Ibn Abidin, understand validity. Al-Durr al-Mukhtar says: the waqf is valid before the beneficiary's existence: if he makes a waqf for the children of Zayd without a child, or for a place he prepared for building a mosque or a school, it is valid according to the soundest view, and the revenue is devoted to the poor until the child is born to Zayd or the mosque is built.
Ibn Abidin, may Allah have mercy on him, said: his saying "the revenue is devoted to the poor": this waqf is called "with a broken beginning"; al-Khaniyya says: if he says "my land is an endowed charity for the son who will be born to me," without a child, it is valid; when the revenue comes, it is divided among the poor; if a child is born after the division, the revenue produced afterwards is devoted to this child; for his saying "an endowed charity" is a waqf for the poor, and the mention of the child to be born is an exception, as if he said: "unless a child is born to me, in which case its revenue is his for the remainder. End of quotation. There is also in al-Is'af: he endowed it for his child while he has only a grandson: the revenue goes to the grandson until the founder has a child of his loins, and then it is devoted to him. End of quotation.
Ibn Nujaym, may Allah have mercy on him, said: the beneficiary's existence at the time of the waqf is not required; the waqf for the children of Zayd without a child is valid, and the revenue is devoted to the poor until a child is born. They disagreed on the waqf for a school or a mosque whose place he prepared before building it: the correct view is permissibility, taking from precedence. Al-Hamawi recalled in his commentary on al-Ashbah that some scholars place the origin of the issue in al-'Imadiyya ("and he devoted its end to the poor"), this restriction being the pivot of validity to avoid the waqf for the purely non-existent, not permitted as in Sharh al-Haddadi; that is why the waqf is valid if he says "an endowed charity," as in the Fatawa Qadi Khan. Al-Haddadi said in al-Jawhara al-Nayyira that the waqf for a non-existent thing, such as for his child when he has none, is not permitted; on this basis one must say "for my children, having none, and its end for the poor" (Ghamz 'Uyun al-Basa'ir, 2/225-226; Hashiyat Ibn Abidin, 4/430; al-Ashbah wa-l-Naza'ir, p.
194; al-Jawhara al-Nayyira, 4/101).
As for the Malikis, they hold three views. The first is that of Imam Malik, followed by Khalil: if he says "I have made a waqf for my child," having no child at the time of the confinement, or "for what will be born to me," or "for the children of so-and-so," who has no child, the property reverts as ownership to the founder or his heirs, who may sell it from now, even without despair of having a child; but if he is lax until a child is born, the waqf is completed. The second is that of Ibn al-Qasim: the waqf is binding by its mere contract, but is not ownership except upon despair of having a child; the matter of the confinement is suspended on the despair. The third is that of Ibn al-Majishun: the confinement is ruled, the property is handed to a trustworthy person so that the taking of possession is valid, the revenue is suspended: if the child is born, it is for him; otherwise for the people nearest to the founder.
Al-Dasuqi, may Allah have mercy on him, summarized: Malik says that the waqf, though valid, is not binding, like its revenue, until existence, then it becomes binding and the revenue is given; the founder may therefore sell this waqf now, before the beneficiary's birth. Ibn al-Qasim says: the waqf is binding by its mere contract, but is not ownership except upon despair of having a child; the matter of the confinement is suspended on the despair. Al-Shabrakhiti (the shaykh Ibrahim al-Shabrakhiti) said: the examination of Ibn al-Qasim's view regarding its revenue remains: is it suspended, the child, once born, receiving it like the confinement, otherwise for the founder; or is it not suspended, the founder taking it until the birth, then it being given to him from that moment? End of quotation.
The apparent is that it is suspended, as al-Laqqani stated explicitly; the apparent of the compiler is to follow Malik's view, without restriction to despair, the disagreement occurring only if no child had been born previously; otherwise the waiting involves no dispute, said al-Shaykh Ahmad al-Zarqani (Hashiyat al-Dasuqi with al-Sharh al-Kabir, 5/476, 478; al-Dhakhira, 6/316; Mawahib al-Jalil, 7/481; al-Taj wa-l-Iklil, 4/580; Sharh Mukhtasar Khalil, 7/93; Tahbir al-Mukhtasar, 4/655-656; Hashiyat al-Sawi, 9/159; Manh al-Jalil, 8/114).
The jurists disagreed when the beginning of the waqf is known and the end unknown, as if he says "I endow it for my children" and then falls silent while he has children; or "for my children and my children's children as long as they propagate and succeed one another"; or for a specific man, then his descendants; or "for my children, then for a disobedience or for what does not last," without devoting, upon their extinction, a channel that does not die out: is this waqf valid or not?
Abu Hanifa and Muhammad, and the Shafi'is against the most apparent view, said that the waqf is void; for the waqf requires perpetuation and the continuity of reward, which does not occur here: the man may die and his line die out; the waqf is therefore not valid, as if it were broken at beginning and end, and it remains upon the founder's ownership (al-Muhadhdhab, 1/441; al-Bayan, 8/68-69; Rawdat al-Talibin, 4/145-146; Mughni al-Muhtaj, 3/464-465; Nihayat al-Muhtaj, 5/428; Kanz al-Raghibin, 3/250; al-Najm al-Wahhaj, 5/483; al-Dibaj, 2/522-523).
Abu Hanifa and Muhammad said: the waqf is not completed as long as its end is not devoted to a category that never dies out, such as the needy, the interests of the sanctuary and the mosques; unlike the waqf for a determined mosque without devoting its end to a perpetual category: it is not valid, for the endowed object may be destroyed; the purpose of the waqf is perpetuation, like manumission.
This resembles his saying: "I have made my land an endowed charity for the children of so-and-so as long as they propagate, and when they die out its revenue goes to the needy"; for the needy's effect never ceases; and if he does not say that, it is not valid; for the condition of its validity according to them is perpetuation, and naming a category that dies out makes it temporary in meaning, which is not permitted; the ruling of the waqf being the departure of ownership without transfer, and its perpetuation like manumission; that is why fixing a term voids it, like fixing a term in sale (Sharh Fath al-Qadir, 6/213; al-'Inaya, 8/331-332; al-Jawhara al-Nayyira, 4/101; al-Lubab, 1/621; al-Bahr al-Ra'iq, 5/204, 212; Ibn Abidin, 4/141).
Abu Yusuf among the Hanafis, the Malikis, the Shafi'is according to the most apparent view and the Hanbalis said that the waqf is valid. Abu Yusuf said: if he names a category that dies out, it is permitted, and afterwards it goes to the poor; if he does not name them, it is a perpetual waqf even without mentioning perpetuation; for the word "waqf" or "charity" indicates it: it is devoted to the named category for the duration of its existence, then to the poor, even if they are not named. As if he says "I make it an endowed charity for Allah the Most High, forever, for the children of so-and-so and his children's children," without naming the poor or the needy; for devoting it to Allah is perpetuation, and what is Allah's goes to the needy, as if he had named them (Sharh Fath al-Qadir, 6/213; al-'Inaya, 8/331-332; al-Jawhara al-Nayyira, 4/101; al-Lubab, 1/621; al-Bahr al-Ra'iq, 5/204, 212; Ibn Abidin, 4/141). Hilal al-Ra'y, may Allah have mercy on him, said: some jurists say the waqf is not valid even if he says "an endowed charity," as long as its end is not for the needy.
Our proof against the one holding this view is the share that Umar ibn al-Khattab, may Allah be pleased with him, allotted of his waqf to his relatives, without devoting its end to the needy: according to our opponent, that share would have to be annulled, whereas it is permitted and continues according to the instruction of Umar ibn al-Khattab, may Allah be pleased with him. It has reached us that al-Zubayr ibn al-Awwam, may Allah be pleased with him, gave his houses in charity, saying:
They are for the descendants among my daughters.
Narrated by Ibn Abi Shayba in his Musannaf (20933) and al-Bayhaqi (6/166); authentic hadith
And it has not reached us that he devoted its end to the needy: let the one who says "the waqf is not valid as long as its end is not for the needy" then consider al-Zubayr's waqf, may Allah be pleased with him, invalid, which is groundless; and all of this is permitted when he says "an endowed charity" (Ahkam al-Waqf, p. 26).
The Malikis said: the waqf varies into five types: with a broken beginning, a broken end, both extremities broken, a broken middle, and both extremities and the middle broken. The first, like the waqf for oneself, for a disobedience or for a dead person who does not benefit, then for the poor. The second, like for one's children, then for a disobedience. The third, like for oneself, then one's children, then a dead person who does not benefit.
The fourth, like for one's children, then a disobedience, then the poor. The fifth, like for oneself, then one's children, then the fighters in a specific place, then a specific school, then the church. Al-Qarafi, may Allah have mercy on him, said: the apparent of our madhhab is that it is void for what cannot receive a waqf, and valid when reaching it is possible, the breakage doing no harm; for the waqf is a kind of transfer of ownership in benefits or objects, and one may therefore generalize or particularize, as in gifts, presents and bequests (al-Dhakhira, 6/339; al-Fawa'id al-Dawani, 2/162; Sharh Mukhtasar Khalil, 7/84; Hashiyat al-Sawi, 9/159).
Al-Dasuqi, may Allah have mercy on him, said: in our madhhab, the waqf containing a breakage at its beginning, its end or its middle is void for what cannot receive a waqf, and valid for what can receive one, if a taking of possession occurs before the impediment reaching the founder; the breakage doing no harm; for the waqf is a kind of transfer in benefits, which may be generalized or particularized, as in gifts and bequests (Hashiyat al-Dasuqi on al-Sharh al-Kabir, 5/463).
The Shafi'is according to the most apparent view: if he says "I endow it for my children," or "for Zayd, then his descendants," or the like, which does not last, without adding a beneficiary after them, the most apparent view is the waqf's validity; for the purpose of the waqf is nearness and perpetuation, and by designating its channel from the outset, its perpetuation upon the property is easy; it is called "with a broken end," and the waqf is spent on the beneficiaries as long as they exist.
Upon their extinction, and likewise when the owners of the waqf are unknown, three views: devoting it to the needy, for they are the ones to whom the valid waqf in its end reverts; or the property reverts to the founder alive, or to his heir if he is dead; for he made it a waqf only for what he named, so it is not permitted to be a waqf for other than that; or, which is the correct view in the madhhab, it is transferred to the nearest relatives of the founder; for his ownership left his hand for a nearness and does not return to him, as if he had manumitted a slave; and his relatives are the most deserving of the intended nearness, for his saying:
Your charity to the needy is a charity; and to a relative, it counts double: a charity and a tie of kinship.
Narrated by al-Nasa'i (2582), Ibn Majah (1844) and Ahmad (16279); authentic hadith
The obligatory devotion is restricted to the poor relatives by blood, not by inheritance, according to the soundest view: the daughter's son is thus preferred to the paternal cousin. If he has relatives, males and females, they are equalized, preferring the nearest, then the next: the nearest are the children, then their children even if lower, then, failing them, the parents, who are equal; if the grandfather and the full brother compete, two views: their equality, as in inheritance; or the brother is preferred, his agnatic right being that of the children. Do only their poor share, or do rich and poor share? Two views: all share, the name of kinship uniting them; or the poor only, for the purpose is nearness, more rewarded with the poor than with the rich.
If it is objected: zakat and the other obligatory spendings are not assigned to relatives, so why should the waqf be? The answer: relatives are among what the Law urges in confining the waqf; the Prophet said to Abu Talha: "I see that you place it among your nearest kin," and he placed it among his relatives and paternal cousins; zakat and its like have a channel fixed by the Law, whereas relatives are not assigned to it; here there is no fixed channel, and devoting it to relatives is better: we therefore assigned it. If he has no relatives, the imam devotes the revenue to the Muslims' interests; it has been said: to the poor and needy. That is when the founder is an independent owner; if the imam endows from the bayt al-mal for the children of so-and-so and they die out, al-Zarkashi said: it is not devoted to the imam's relatives, but to the interests.
In al-Fatawa: if the owners of the waqf are unknown, its channel is that of the one broken at the end (al-Muhadhdhab, 1/441; al-Bayan, 8/69-70; Rawdat al-Talibin, 4/145-146; Mughni al-Muhtaj, 3/464-465; Nihayat al-Muhtaj, 5/428-429; Kanz al-Raghibin, 3/250; al-Najm al-Wahhaj, 5/483-484; al-Dibaj, 2/522-523).
As for the Hanbalis, Ibn Qudama, may Allah have mercy on him, said: if the end is unknown, such as devoting it to a people whose dying out is possible by custom, without devoting its end to the needy or to a category that does not die out, the waqf is valid; Malik, Abu Yusuf and al-Shafi'i in one of his two views said so. Muhammad ibn al-Hasan said: it is not valid, and this is al-Shafi'i's second view; for the waqf requires perpetuation, and when broken it becomes a waqf for an unknown, not valid, as if it were for an unknown from the beginning. We answer: it is a disposal to a known channel, and is thus valid, as if the continuous channel validated it; the indeterminate carrying a custom is referred to it, like the currency of the land and the customary channel, and here they are the most deserving, as if he had named them. The waqf therefore goes, upon the beneficiaries' extinction, to the founder's relatives, as al-Shafi'i said.
Another report from Ahmad: it goes to the needy, chosen by the qadi and al-Sharif Abu Ja'far; for it is the channel of charities and of Allah's rights, such as expiations: a charity with no fixed channel goes to them, like a vow of unrestricted charity. A third report from Ahmad: it is placed in the bayt al-mal of the Muslims; for it is wealth with no rightful claimant, resembling the property of one who has no heir. Abu Yusuf said: it returns to the founder and his heirs, unless he says "an endowed charity spent on so-and-so and so-and-so": upon the named ones' extinction, it is for the poor and needy; for he made it a charity upon named ones, which does not go to others; this differs from "it is spent on so-and-so and so-and-so," which makes the charity unrestricted.
We answer: he removed his ownership to Allah the Most High, and it is not permitted to return to him, as if he had manumitted a slave; the proof of devoting it to the founder's relatives is their priority in his charity, according to the Prophet's saying: "Your charity to one who is not your kin is a charity; your charity to your kin is a charity and a tie of kinship"; and his saying: "It is better for you to leave your heirs rich than to leave them dependent, begging from people"; added to it is their enrichment and the tying of kinship bonds, they being the most deserving of his supererogatory and obligatory charities, as of his transferred charity. According to the apparent meaning of al-Khiraqi's words and Ahmad's, it is thus for the poor and the rich among them; for the waqf does not restrict the poor: if he endows for his children, rich and poor both benefit; likewise here.
Another view restricts it to their poor; for they are the people of charity, unlike the rich: they were specified by the waqf for being the most deserving of charity, and the most deserving of charity are the poor, unlike the rich. The report differed on who, among the founder's relatives, is entitled to the waqf. In one of the two reports: to the heirs among them; for Allah the Most High directed his wealth to them after his death and his self-sufficiency; likewise his charity with no named channel is devoted to them; the Prophet said: "It is better for you to leave your heirs rich..."; they thus share according to their inheritance shares, and it is a waqf upon them; Ahmad stated it explicitly and the qadi mentioned it; for the waqf requires perpetuation, and it was devoted to them as the most deserving of his charity, remaining a charity. Al-Khiraqi's words may mean devoting it by inheritance with the waqf being void, which is then Abu Yusuf's view.
The second report: it is a waqf for the nearest 'asaba of the founder, to the exclusion of the other heirs and the distant 'asabas, the nearest first, according to their entitlement as clients (mawali); for they were distinguished by his judgment and by the inheritance of their manumitters, and are therefore distinguished by this too. Ibn Qudama said: this view does not stand with me; for their privilege to the exclusion of others cannot be established except by a text, a consensus or an analogy, and no text or consensus is known; and the analogy with the inheritance of clients is not valid, its cause not being realized here. The nearest of the views is devoting it to the needy; for they are the channels of Allah the Most High's wealth and His rights; if there are poor among the founder's relatives, they are the most deserving, not obligatorily, as with his zakat and his kinship ties while devoting it to others is permitted; and if it is devoted to the relatives by way of designation, that too is a category that dies out: continuity is realized only by devoting it to the needy.
Al-Shafi'i said: it is a waqf for the people nearest to the founder, male and female being equal in it. Conclusion: if the founder has no relatives, or after their extinction, it is devoted to the poor and needy as a waqf upon them; for the purpose is perpetual reward, and relatives were preferred as more deserving; in their absence, the needy are entitled to it; except according to the one who says it returns as ownership to the founder's heirs: in their absence, it goes to the bayt al-mal; for the waqf is void by breakage and becomes an inheritance with no heir, for which the bayt al-mal is most fitting (al-Mughni, 5/363-364; al-Sharh al-Kabir, 6/202, 204; Sharh al-Zarkashi, 2/201; al-Mubdi', 5/327-328; al-Insaf, 6/34; Matalib Uli al-Nuha, 4/294; Kashshaf al-Qina, 4/304; Sharh Muntaha al-Iradat, 4/341).