The sale of the ruined waqf when it is real estate

This part belongs to the section: All parts.

The sale of the ruined waqf when it is real estate

First of all: the jurists agree that if the intended benefits of the waqf have ceased through ruin, but its restoration is possible from its revenue, it is not sold, by virtue of the generality of the saying of the Prophet (pbuh):

It is neither sold, nor given as a gift, nor inherited.

Reported by al-Bukhari and Muslim

However, they differed when the waqf is ruined and its benefits have ceased, like a collapsed house, land returned to wasteland that cannot be restored, a mosque abandoned by the villagers and now in a place where prayer no longer takes place, or too small for its worshippers with no possibility of expansion on site, or wholly dilapidated with no restoration possible except by selling part of it: is it permitted to sell part to restore the rest, and all of it if no benefit can be drawn from anything? or is the sale of the waqf forbidden absolutely, even if its benefits have ceased? or does the waqf revert to the founder? Three views among the scholars.

First view: this is the view of the Malikis according to the well-known opinion, of the Shafi'is in the school, and of Abu Yusuf among the Hanafis: the waqf is not sold and remains a waqf.

The Malikis say: the sale of a waqf real estate, whether houses, shops or a quarter, is not permitted in order to replace it with another, even if it is in ruin. Imam Malik said: the endowed real estate is not sold, even in ruin; the persistence of the endowments of the early generations, age after age, is a proof of this prohibition. 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. It suffices you as an argument, in an ancient matter, to take from it what has occurred: 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. Their persistence in ruin therefore proves that sale in them is not upright; 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 (riba') and animals, when the imam judges so (al-Mudawwana al-kubra, 15/100).

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 (stones, bricks, wood) is not sold, even in ruin; if its return to the use for which it was endowed 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: if the mosque is too small for its worshippers and needs expansion, and beside it lies endowed real estate or private property, the sale of the endowment for the expansion of the mosque is permitted; like the expansion of the mosque: 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, 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 the holders of endowed houses have sold for the expansion of the mosque, the cemetery or the road and received the price, they are ordered to place it in another endowment (Jami' al-ummahat, 1/452; 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, according to the sounder view, say: the sale of the waqf is never permitted. If the benefit of the waqf has ceased through a cause not guaranteed, like a tree dried up or uprooted by wind or flood and impossible to replant, or a beast of burden grown wind-broken, the waqf is not interrupted according to the school: the trunk continues to be used by leasing and the like, in order to keep the waqf in its substance; it is neither sold nor given, by virtue of the report: "it is not sold. Likewise the wind-broken beast that has become unusable: that is, if it has been eaten, for the sale of its meat is valid, unlike the others. Against the sounder view: it is sold, because of the impossibility of the benefit as the founder stipulated it; with the price its equivalent is bought, to be waqf in its place or part of it, for that is closer to the founder's aim.

If it is useful only by being consumed through burning or the like: divergence. It has been said: the waqf is interrupted and the thing becomes the property of the beneficiary, according to the adopted view; yet it is neither sold nor given: it is used in its substance, like the umm al-walad and the sacrificial animal. It has been said: it never becomes property.

If someone made land waqf for a frontier post (thaghr) and the post lost its function and fighting there became impossible, the benefit of the waqf (its revenue) is preserved and is not directed elsewhere, for the post may return to its state. If someone made a mosque waqf that collapsed with no restoration possible, or became unusable through the ruin of the town, it does not revert to ownership and is absolutely not sold; for what has left ownership to remain a right of Allah does not revert to ownership through its dysfunction, like the freed slave grown senile. It is not demolished if nothing is feared for it, because of the possibility of praying on its ground and of its return; if harm to it is feared, it is demolished and its materials preserved, or another mosque is restored with them if the ruler deems it right. Al-Mutawalli said: its revenue is devoted to the mosques nearest to it, if no return is expected; otherwise it is preserved, as the Imam said.

Al-Khatib al-Shirbini (may Allah have mercy on him) said: this is preferable to al-Mawardi's view: to devote it to the poor and needy; and to al-Ruyani's view: to treat it like the interrupted waqf. If harm to it is feared, it is demolished, and the ruler builds another mosque with its materials if he deems it right; otherwise, preserving it and building close by are preferable; a well is not built with it, just as the demolition of a ruined well does not build a mosque but another well; observing the founder's aim as far as possible. If a bridge was made waqf and the valley swept away, leaving the bridge unusable while another bridge is needed, its transfer to the place of need is permitted (al-Muhadhdhab, 1/445; al-Bayan, 8/100; Rawdat al-talibin, 4/172-173; Mughni al-muhtaj, 3/478-479; Tuhfat al-muhtaj, 7/534-535; Nihayat al-muhtaj, 5/453; Kunz al-raghibin, 3/264-265; al-Najm al-wahaj, 5/517-518; al-Dibaj, 2/532-533).

Al-Ramli (may Allah have mercy on him) said: "There is divergence regarding a collapsed house or one on the verge of collapse that has become unfit for dwelling; some distinguished between the one made waqf for the mosque and the one made waqf for something else. Al-Walid (the author's father, may Allah have mercy on him) gave the fatwa that the preferred view is to forbid its sale, whether it was made waqf for the mosque or for something else. Al-Subki and others said: forbidding its sale is the truth, for permitting it would amount to following those who allow substitution (Nihayat al-muhtaj, 5/453). In his fatwas it is said: (he was asked): is it permitted to sell the waqf house when it has collapsed or is on the verge of collapse, whether it was made waqf for the mosque or for something else, as implied by "al-Rawda" and what was attributed to the fatwas of Ibn al-Iraqi?

or is only the one made waqf for the mosque sold, as Ibn al-Muqri and others stated explicitly? or is nothing of that sold, as Shaykh al-islam Zakariyya gave in fatwa, supported by what he transmitted from a group of companions in "Sharh al-Manhaj"? (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 like al-Mahamili, Sulayman in "al-Mujarrad", Shaykh Nasr al-Maqdisi in his Tahdhib, al-Jurjani in his Shafi, the author of "al-Bayan" and other Iraqis. Al-Jurjani's wording in his Tahrir: if the waqf house has collapsed, its sale is not permitted unanimously. Qadi Husayn, of the Marawiza, affirmed it categorically: if the waqf is ruined, its sale is not permitted; it remains a waqf as it is 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, whether we say or not that the beneficiary acquired ownership of the waqf. These books of the school, from both routes, bear witness against what al-Rafi'i mentioned; it therefore appears that the Imam was unique in reporting the disagreement about the house threatening ruin, and al-Rafi'i unique in reporting the disagreement about the collapsed house, and his words require correction in both cases: prohibition for the collapsed and permission for the one threatening ruin; for when the Imam reported the disagreement about the one threatening ruin, he inclined the majority to prohibition, saying: among what relates to this principle is one who made a house waqf that threatens ruin, and we know that if it collapsed its restoration would be difficult: the majority forbade the sale, and some permissive ones allowed it.

Al-Rafi'i relied on that, but he added confusion, and his words require the correction of permission in both cases; as for his reporting of the disagreement about the collapsed one, it is as if he thought: 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 specifically, 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).

Second view: this is the Hanbali school, and a narration among the Malikis: the sale of the waqf is permitted when it is ruined and its benefits have ceased, like a collapsed house, land returned to wasteland that cannot be restored, a mosque abandoned by the inhabitants and in which prayer no longer takes place, or too small for its worshippers with no expansion possible on site, or wholly dilapidated with no restoration possible except by selling part: the sale of that part is permitted to restore the rest; and if no benefit can be drawn from anything, all of it is sold and replaced. In "al-Mughni" by Ibn Qudama (may Allah have mercy on him), in a mas'ala: "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 matter: 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. He said in Salih's narration: the mosque is moved for fear of thieves, or when its place is filthy. Al-Qadi said: that is, when that prevents praying in it. He stated explicitly, in Abdallah's narration, the permission to sell its courtyard, and the witnessing of that falls to the imam.

Abu Bakr said: 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 (waqf) for fighting when it has grown old and unfit, while it can be used for something else; Ahmad stated it explicitly.

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: if the benefit disappears, the right of the beneficiaries disappears, and with it ownership leaves the property. 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.

Reported by al-Bukhari and Muslim

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: Umar (may Allah be pleased with him) 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 anyone objecting: it amounts to consensus. Moreover, what we mentioned makes it possible to preserve the waqf according to its meaning when preserving it according to its form has become impossible: it is therefore obligatory, as when the possessor fathered a child with the waqf slave-girl, or kissed her, or another kissed her (the correct text is: or slaughtered her, he or another).

Ibn 'Aqil said: "The waqf is perpetual; when its perpetuation becomes impossible in a manner that preserves the aim, namely permanent benefit, it is so in another substance, and the replacements follow the regime of principal properties. Our rigidity toward the substance become unusable is a loss of the aim. This resembles the hadi become defective on a journey: it is slaughtered at once, even though it is tied to a place; when achieving the aim has become impossible in its totality, what is possible is used and the rest abandoned: the specific place is observed when it becomes impossible, for observing it despite impossibility leads to the loss of the benefit in its totality. It is the same for the waqf whose benefits have become unusable.

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 through its dysfunction and the disappearance of its benefits, like manumission.

Chapter: the apparent meaning of al-Khiraqi's words is that, if the waqf is sold, whatever is bought with its price for the benefit of the people of the waqf is permitted, whether of the same kind or another; for what is intended is the benefit, not the kind; but the benefit is directed to the interest toward which the first was directed, for changing the destination is forbidden as long as it can be preserved, just as changing the waqf by sale is forbidden as long as its benefit is possible.

Chapter: 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-Sharh al-kabir, 6/242-243; al-Mubdi', 5/356; al-Ifsah, 2/48; al-Insaf, 7/100, 104; Kashshaf al-Qina', 4/353-354; 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. Then he said: regarding the exchange of a quarter not in ruin, two views of the shaykh in his Risala and Ibn Shabban. 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 of the endowed land 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). Al-Nafrawi (may Allah have mercy on him) said: it is not permitted, in the sense of forbidden, to sell the endowed real estate, even if it is ruined to the point of serving no purpose and its return is not hoped for.

Malik (may Allah be pleased with him) said: the endowed real estate is not sold, even in ruin; some of them say: its sale is permitted if its persistence causes harm and its return is not hoped for; agreement on that was reported; there is no doubt that it contradicts the Imam's saying; the reason for his saying is perhaps what would follow: resorting to the sale of waqfs on the claim of ruin; but the Imam built his school on blocking the means; just as it is not permitted to sell the endowed real estate, it is not permitted to sell its rubble (al-Fawa'id al-Dawani, 2/164-165).

Third view: this is the view of Muhammad ibn al-Hasan: the ruined waqf reverts to the ownership of its author if he is alive, and to that of his heirs if he is dead. Al-Kasani (may Allah have mercy on him) said: "If one made his house a mosque, then the neighborhood of the mosque fell into ruin or one can dispense with it, it does not revert to his ownership and remains a mosque forever according to Abu Yusuf; according to Muhammad it reverts to his ownership. The reason for Muhammad's view: he removed his property from himself in a specific manner, namely drawing near to Allah through a place where people pray; if one can dispense with it, his aim has escaped from the property, which then reverts to his ownership, like one who shrouded a dead person in his shroud, then beasts devoured the body leaving the shroud: it reverts to his ownership.

For Abu Yusuf: once he made it a mosque, he freed it and made it purely Allah's in absolute terms, and that is valid; no reversion to his ownership is conceivable, like manumission; unlike the shroud of the deceased: he did not free it, but met his need by covering him; once one can dispense with it, it reverts to his ownership.

As for his saying: "he removed his property in a manner making it possible to dispense with it", we answer: that is prevented, for passers-by pray in it; the possibility of the return of restoration subsists; the path of devotion was realized with certainty and is not annulled by the mere possibility of the aim not being achieved. If a house or land was made waqf for a specific mosque, some say: it is disputed: permitted according to Abu Yusuf, not permitted according to Muhammad; for the mosque, according to Abu Yusuf, does not become inheritance through ruin, whereas according to Muhammad it does. Abu Bakr al-A'mash said: it ought to be permitted by agreement; Abu Bakr al-Iskaf said: it ought to be forbidden by agreement (Bada'i' al-sana'i', 6/221; see: al-Muhit al-Burhani, 6/98).

Ibn al-Humam (may Allah have mercy on him) said: "Know that the following branches off from the disagreement between Abu Yusuf and Muhammad, in the case where one can dispense with the mosque because of the ruin of the neighborhood and the dispersal of its inhabitants: when the waqf has collapsed with no revenue allowing its restoration, it is annulled, and the demolition reverts to its builder or his heirs according to Muhammad, contrary to Abu Yusuf. Likewise, a shop in a market burned down, become unusable and impossible to rent even for nothing: it leaves the waqf status. Likewise, a basin of a quarter in ruin with no means of restoration: it goes to its heirs; if they are unknown, it is treated as lost property. Likewise the ribat in ruin: the waqf is annulled and it becomes inheritance.

If someone builds on this land, the construction belongs to the builder, and the principal of the waqf to the heirs of the founder according to Muhammad. The saying of the one who said: 'questions of this kind call for examination; let them be pondered at the time of fatwa' is out of place. In "al-Fatawa al-Zahiriyya": al-Hulwani was asked about the waqfs of a mosque that have become unusable and unexploitable: may the supervisor sell them and buy others with their price? He said: yes.

Hisham reported from Muhammad that he said: when the waqf reaches the state where the poor can no longer benefit from it, the qadi may sell it and buy another with its price. On this basis, it is fitting not to give fatwa on the reversion to the ownership of the founder and his heirs through its mere shutdown and ruin, but rather: when the property no longer yields benefit, its price is used to buy another exploitable waqf, even if its revenue is less than that of the first; likewise, the supervisor may sell the earth of an endowment become unexploited if there is an interest in it.

In "Fatawa Qadikhan": a waqf assigned to two named persons, ruined, yielding no benefit, and whose principal cannot be rented: the waqf is annulled and its sale permitted; if the principal can be rented even for a small sum, the principal remains waqf. End of quote. This must be kept in mind: a house may fall into ruin and become a heap of stones, even though if its debris were transferred someone would rent its ground to build or plant, even for a small sum; this detail is overlooked and it is sold in its entirety to the founder, whereas only the debris reverts to him (Sharh Fath al-Qadir, 6/237-238). Ibn Nujaym (may Allah have mercy on him) said: if the waqf has entirely collapsed: a reader of the "Hidaya" was asked about a waqf demolished, with nothing allowing its restoration, impossible to lease or maintain: may its rubble (stone, brick, wood) be sold?

He answered: if the situation is such, its sale is valid by order of the ruler, and a waqf is bought with its price in its place; if it cannot be returned to the heirs of the founder who are found, otherwise it is given to the poor (al-Bahr al-ra'iq, 5/237). The fatwa among the Hanafis follows Abu Yusuf's view, as Ibn Abidin (may Allah have mercy on him) showed.

It is said in "al-Durr al-mukhtar": (if what surrounds it is in ruin and one can dispense with it, it remains a mosque according to the Imam and the second) forever until the Resurrection (and this is what fatwa is given on), according to Hawi al-Qudsi; (it reverts to ownership), that is, the ownership of the builder or his heirs (according to Muhammad); according to the second, it is moved to another mosque with the authorization of the judge; (likewise) the mentioned disputes (regarding the straw of the mosque and its mats, when one can dispense with them), as well as (the ribat and the well from which no more benefit is drawn: the waqf of the mosque, the ribat and the well) and of the basin (is devoted to the nearest mosque, ribat or well, or the nearest basin): these are consequences of the two views ("Durar"). Ibn Abidin (may Allah have mercy on him) said: request concerning what happens if the mosque or other property is ruined.

His saying: (if what surrounds it is in ruin): that is, even if it remains inhabited; likewise if it is in ruin with no means of restoration and the people have dispensed with it to build another mosque. His saying: (according to the Imam and the second): it does not revert as inheritance, and it is not permitted to move it, nor its property to another mosque, whether people pray in it or not; this is the fatwa of Hawi al-Qudsi, followed by most of the shaykhs; the Mujtaba, the view most worthy of being adopted according to al-Fath; the Bahr. In al-Is'af it is said: some mentioned that Abu Hanifa's view is like that of Abu Yusuf, others like that of Muhammad.

His saying: (it reverts to ownership according to Muhammad): it is said in al-Fath that what branches off from the mentioned disagreement is the case where the waqf has collapsed with no revenue for its restoration: it then reverts to the builder or his heirs according to Muhammad, contrary to Abu Yusuf; but according to Muhammad, only what has left the benefit intended by the founder in its totality reverts to his ownership, like a shop burned down and impossible to rent, a ribat or a basin of a quarter in ruin with no means of restoration; as for what is destined for revenue, only its debris reverts to ownership, and its courtyard remains waqf, rentable even for a small sum, unlike the ribat and the like: the waqf of residence ceased with its collapse; as for the revenue house, it may fall into ruin and become a heap of stones, even though if its debris were transferred someone would rent its ground to build or plant, even for a small sum; this detail is overlooked and it is sold to its founders, whereas only the debris reverts to them; he relied in that on al-Khaniyya and others, and his words show that he relies on it.

His saying: (according to the second, and so on): affirmed categorically in al-Is'af: if the mosque and its surroundings are in ruin and the people disperse from it, it does not revert to the founder's ownership according to Abu Yusuf; its debris is sold with the authorization of the judge, and the price given to a mosque. His saying: (likewise the straw of the mosque, and so on): the straw spread in place of the mats, as is done in some countries, like the Sa'id. Al-Zayla'i said: on this basis, the mat and the straw of the mosque, when one can dispense with them, revert to their owner according to Muhammad, and are moved to another mosque according to Abu Yusuf; on this same disagreement the ribat and the well from which no more benefit is drawn. It was stated explicitly in al-Khaniyya that the fatwa follows Muhammad's view.

It is said in al-Bahr: it is thereby known that the fatwa follows Muhammad's view regarding the instruments of the mosque, and Abu Yusuf's view regarding the perpetuity of the mosque. The instruments of the mosque denote the lamp and the mat, unlike its rubble (Ibn Abidin, 4/358-359).

The Shafi'is, against the sounder view, say: when the benefits of the waqf have ceased, the waqf is interrupted and reverts to the ownership of the founder. They say: when the benefit of the waqf has ceased through a cause not guaranteed, like a tree dried up or uprooted by wind or flood and impossible to replant, or a beast of burden grown wind-broken, the waqf is not interrupted according to the school: the trunk continues to be used by leasing and the like, in order to keep the waqf in its substance; it is neither sold nor given, by virtue of the report: "it is not sold. Likewise the wind-broken beast that has become unusable: that is, if it has been eaten, for the sale of its meat is valid, unlike the others. Against the sounder view: it is sold, for its benefit is annulled, and its sale is preferable to leaving it; with the price its equivalent is bought, to be waqf in its place, or part of it, for that is closer to the founder's aim.

If it is useful only by being consumed through burning or the like: divergence. It has been said: the waqf is interrupted and the thing becomes the property of the beneficiary, according to the adopted view; yet it is neither sold nor given: it is used in its substance, like the umm al-walad and the sacrificial animal. It has been said: it never becomes property (al-Bayan, 8/99; Rawdat al-talibin, 4/172; Mughni al-muhtaj, 3/479; Tuhfat al-muhtaj, 7/531, 533; Nihayat al-muhtaj, 5/451, 453; Kunz al-raghibin, 3/263; al-Najm al-wahaj, 5/514; al-Dibaj, 2/532).

First scenario: the founder stipulates the right to substitute the waqf for himself or for another

The question of the substitution of the waqf arises in three scenarios. The first: the founder stipulates the substitution for himself or for another. The second: he did not stipulate it (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 third: the founder did not stipulate it, but the property yields a benefit overall while a replacement would be better in revenue and benefit.

The jurists differed on all these scenarios.

First scenario: the founder stipulates, at the inception of the waqf, his right to substitute it: is that permitted for him, or for another? Abu Yusuf, al-Khassaf and Hilal among the Hanafis (the view adopted for fatwa among them; some say it is also Muhammad's view), as well as the Malikis (al-Fawa'id al-Dawani, 2/164-165), which is also a Hanbali opinion (al-Insaf, 7/26), hold that the founder's stipulation of the substitution for himself, for himself and another, or for another, is permitted.

The Hanafis say: if the founder said: "This land is a charity made waqf for Allah in perpetuity, on condition that I have the right to sell it and buy with its price another land, which will be waqf according to the conditions of the first", the waqf and the condition are valid; for it is a condition that does not annul the ruling of the waqf, the latter tolerating passage from one land to another. Indeed, if someone usurps the waqf land and makes water flow over it until it becomes a sea unfit for cultivation, then guarantees its value, and with its value another land is bought which becomes waqf according to the conditions of the first, the same applies: if the dwellers of the waqf land have decreased because of a plague to the point that it no longer suits cultivation, or its revenue no longer exceeds its costs, its substitution by another land is valid; and stipulating the authority of substitution is valid even if necessity does not call for it at the moment.

If the founder said only in the waqf: "on condition of selling it and buying with its price another land", without saying more, the waqf is void according to analogy, for he did not mention establishing another land in place of the first; it is permitted according to istihsan, for the land was designated for the waqf: its price therefore takes its place in the ruling; and as soon as a land is bought with its price, it becomes waqf according to the conditions of the first, without renewal of the waqf. After a first substitution, he has no right to make a second, for the condition applies once only, unless he uses a wording indicating that this right belongs to him in perpetuity (al-Is'af, p. 31-32; Sharh Fath al-Qadir, 6/227-228; al-Bahr al-ra'iq, 5/239-240; al-Ashbah wa-l-naza'ir of Ibn Nujaym, p. 194; Ibn Abidin, 4/348; Majma' al-damanat, 687).

Ibn al-Humam (may Allah have mercy on him) said: if he says "on condition of substituting another land", he cannot make the replacement a house, nor the reverse; if he says "by a land of Basra", he cannot substitute from elsewhere, for places differ in the quality of land; if he chooses a better place, the substitution ought to be permitted, for it is a change toward the better. If he stipulated substitution without specifying anything, he substitutes whatever real estate he chooses.

If he sold the waqf with flagrant undervaluation, the sale is not permitted; if he took the price and then died without explaining its use, it is a debt in his estate; likewise if he spent it; if he lost it while it was in his hand, he owes nothing; if he bought with the price a commodity that cannot be waqf, it belongs to him and the debt weighs on him; if the buyer gave it to him as a gift, the gift is valid and he is liable for it according to

Abu Hanifa, while Abu Yusuf prevented it; if he took the price and then gave it as a gift, the gift is void unanimously; if he sold it as a commodity, the sale is valid according to Abu Hanifa's analogy. Abu Yusuf and Hilal said: he may sell only by explicit mention, or against a land that will become waqf in its place. If he sold the waqf and the property came back to him, the rescission is total: he may sell it a second time; if it came back by a new contract, he may no longer sell it, for it has become waqf again, as if he had bought another property, unless he had generalized the substitution for himself.

If the property came back to him defective, by ruling or without ruling after taking the price, or before taking it with a ruling, it returns to waqf status. If the buyer says, before or after taking the price, that he will do with the property what he wishes, he has the right to it. If the first land becomes his according to analogy, the second remains waqf; according to istihsan, no: for the second was waqf as a replacement of the first, and the first having become his, the exchange is annulled in its totality, so that the second no longer remains waqf. If he stipulated the substitution for himself and delegated its execution, that is valid; if he bequeathed it at his death, the legatee has no such right: for in delegation, while he was alive and could prevent any flaw, the substitution was possible for him, unlike the bequest.

If he stipulated the substitution for himself together with another, on condition that they substitute jointly, and he did it alone, that is not permitted; if he did it alone while he had stipulated it for himself, that is permitted, for what he stipulated for another belongs to that other, like two judges of two towns appointed as agents each: each may act alone. If one of the two judges wants to remove the one the other appointed, it is said: if he sees an interest in it, the removal is permitted to him, otherwise not (Sharh Fath al-Qadir, 6/229).

Something similar is reported from al-Ansari, but he sells only with the ruler's authorization. Burhan al-Din Ibn Maza (may Allah have mercy on him) said: al-Ansari mentioned in his book on the waqf that he sells only with the ruler's authorization. Al-Ansari also said: it is fitting that the ruler, when a waqf without benefit is submitted to him, permit the sale if he deems it safer for the people of the waqf; if it is sold and a land is bought with its price, that land is waqf; he may not sell that land unless he stipulated that in the foundation of the waqf, as Hilal mentions in his book on the waqf. If it was stipulated in the foundation of the waqf to sell it and devote its price to the needy, this condition is not permitted: al-Ansari mentioned it in his book on the waqf.

Al-Khassaf mentioned in his book: if it was stipulated to sell it and devote its price to the charitable causes he deemed good, the waqf is void; and if it was stipulated in the foundation of the waqf to sell it and it was not sold, it is not permitted for one born after him to sell it. In al-Ansari's book on the waqf: if one made his farm waqf on condition of having the right to sell it and devote its price to a need, Abu Nasr said: the waqf is permitted and the condition void; similar according to Abu al-Qasim. Abu Bakr al-Iskaf said: the waqf is void. Al-Sadr al-Shahid said: this is the chosen view, for perpetuity is lacking in it; likewise one who endowed a horse or a weapon, making it waqf for twenty years, to revert then to its owner.

In the "Fatawa Abu al-Layth" and in "Sirr al-'uyun": one who endowed a horse in the way of Allah for ten years, to revert then to its owner: that is void. According to Abu Yusuf ibn Khalid al-Samti, Hilal's teacher: the waqf is permitted and the condition void; likewise for the waqf on condition of selling it, according to Abu al-Qasim and Abu Nasr (al-Muhit al-Burhani, 5/716-717; Sharh Fath al-Qadir, 6/228).

Ibn Abidin (may Allah have mercy on him) said: if the founder stipulated the substitution for himself, for another, or for both, the substitution is permitted according to the sound view; it has been said: unanimously (Ibn Abidin, 4/384). Imam Muhammad, Abu Yusuf, Khalid al-Samti and the Hanbalis according to one view teach that the waqf is valid and the condition void. It is said in al-Is'af: it is the analogy (al-Is'af, p. 31-32; see: Sharh Fath al-Qadir, 6/227-228; al-Bahr al-ra'iq, 5/239-240; al-Ashbah wa-l-naza'ir of Ibn Nujaym, p.

194; Ibn Abidin, 4/348). Al-Sarakhsi (may Allah have mercy on him) said: according to Muhammad, which is the view of the people of Basra, the waqf is valid and the condition void; for this condition does not affect the prohibition of its disappearance: the waqf is completed by its conditions and the meaning of perpetuity in its foundation does not disappear; the substitution therefore remains a void condition, void in itself, like the mosque for which substitution was stipulated or that only certain people may pray in: the condition is void and the establishment of the mosque valid; this is its equivalent (al-Mabsut, 12/141-142; al-'Inaya sharh al-Hidaya, 8/351).

Al-Bahuti (may Allah have mercy on him) said in "Kashshaf al-Qina'": if sale at the ruin of the waqf was stipulated, with the price spent on its equivalent, or it was stipulated for the supervisor who comes after, only the condition is void and the waqf is valid with the annulment of the condition, as with void conditions in sale; this is a view reported by al-Harithi from al-Qadi and Ibn 'Aqil. He reported before them, from them and from Ibn al-Banna and others: the waqf is void. Then, after mentioning the argument for the validity of the waqf with annulment of the condition: "that is not right; for annulling the condition amounts to annulling acting upon it, and the sale at ruin is an established fact; stipulating an established fact amounts to confirming it. Al-Mirdawi (may Allah have mercy on him) said: if sale at ruin with the price spent on its equivalent was stipulated, or it was stipulated for the supervisor who comes after, al-Qadi, Ibn 'Aqil, Ibn al-Banna and others said: the waqf is void.

I say: it calls for examination; al-Qadi and Ibn 'Aqil mentioned a view in favor of the validity of the waqf with annulment of the condition, as al-Harithi reports; I say: that is the truth. It is said in "al-Furu'": the condition of sale at ruin is void in the explicit text, transmitted by Harb, who explained it by necessity and benefit for the people. It is said in "al-Furu'": according to its rationale, it is conceivable if its disappearance was stipulated at its shutdown. It has been said: the condition is valid (al-Insaf, 7/26; Kashshaf al-Qina', 4/306).

The Hanbalis in the school, and the Hanafis according to a third view, teach that both the condition and the waqf are void (al-Is'af, p. 31-32; see: Sharh Fath al-Qadir, 6/227-228; al-Bahr al-ra'iq, 5/239-240; al-Ashbah wa-l-naza'ir of Ibn Nujaym, p. 194; Ibn Abidin, 4/348; Sharh Muntaha al-iradat, 4/344; Matalib uli al-nuha, 4/294).

Al-Bahuti said in "Sharh Muntaha al-iradat", and al-Ruhaybani in "Matalib uli al-nuha": if the transfer of the waqf from one category to another was stipulated, saying: "I made my house waqf for such a category, on condition of turning it away from it, or removing it from the waqf status by renouncing it whenever I wish", if any of that was stipulated, the condition and the waqf are void according to the sound view of the school: stated and preferred in "al-Furu'", "Sharh al-Harithi", "al-Fa'iq", the two "Ri'ayat" and "al-Hawi al-saghir". It is said in "al-Mughni": we know of no disagreement thereon, for it contradicts the waqf. Likewise, if the founder stipulated changing his condition and annulling it whenever he wishes, the waqf is not valid, for it is a condition contradicting the implication of the waqf (Sharh Muntaha al-iradat, 4/344; Matalib uli al-nuha, 4/294).

As for the Malikis, they differed on stipulating replacement in the waqf. In "Fath al-'Ali al-Malik" by Shaykh Aliysh it is said: (what is your view) concerning land made waqf for a footpath on the road of the Muslims, whose founder stipulated that it be neither sold nor replaced, and then the supervisor of the footpath substituted that land with another land from the state domains (diwan), giving the waqf land to a farmer and taking from him a diwan land, the supervisor paying the waqf expenses and the farmer the kharaj due from him: is this exchange void, and must the supervisor return the waqf land itself? Enlighten us. 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). It is understood from al-Dardir's words that if the founder stipulated the substitution, it is applied, which al-Dasuqi stated explicitly: his saying: (and it is not stipulated), that is, for the validity of the waqf, perpetuity: it is drawn from it that stipulating change, replacement, inclusion and exclusion is applied.

In "al-Mutayti": what indicates the prohibition initially, and that it proceeds if it occurs. In al-Hattab, from "al-Nawadir", "al-Mutaytiyya" and others: if he stipulated in his waqf that if a price stirring desire is found in it, it be sold and another bought, that is not permitted to him; if it occurs and he consents, it proceeds and his condition is applied ("al-Banani") (Hashiyat al-Dasuqi, 5/474; Hashiyat al-Sawi, 9/140; Sharh al-Mayyara, 2/234). Al-Hattab (may Allah have mercy on him) said, regarding his saying: (his condition is followed if it is permitted to specify the school): the meaning of "if it is permitted" is that if he stipulated what is not permitted, it is not followed; that is, when he stipulated what is agreed upon as prohibited; otherwise, it was stated explicitly in "al-Nawadir" and "al-Mutaytiyya" and others that if he stipulated in his waqf that if a price stirring desire is found in it, it be sold and another bought, that is not permitted to him; if it occurs and he consents, it proceeds and his condition is applied.

It is said in "al-Nawadir", under the heading of reversion in the endowment: may it be sold? Ibn al-Majishun said: I do not see that one excepts the house, saying: if a price stirring desire is found in the house, let it be sold and a house bought with its price; likewise the principal properties; if one excepts that in the endowment, it is permitted and proceeds. It is said in "al-Mutaytiyya", under the heading of reversions of endowments: Mutarrif, Ibn al-Majishun, Ibn Abd al-Hakam and Asbagh said in "al-Wadiha": it is not permitted to except from the endowment, for real estate, the case where a price stirring desire is found in it, permitting its sale and the purchase with its price of an equivalent quarter; for the need to sell does not occur in it, and the excuse for change is what occurs in sale at the time of need; if one excepts it, it is permitted and proceeds. Ibn Salmun also transmitted it (Mawahib al-Jalil, 7/493).

Al-Nafrawi (may Allah have mercy on him) stated explicitly the permission to sell if the founder stipulated it. In "al-Fawa'id al-Dawani" it is said: it is not permitted, in the sense of forbidden, to sell the endowed real estate, even if it is ruined to the point of serving no purpose and its return is not hoped for. Malik (may Allah be pleased with him) said: the endowed real estate is not sold, even in ruin; some of them say: its sale is permitted if its persistence causes harm and its return is not hoped for; agreement on that was reported; there is no doubt that it contradicts the Imam's saying; the reason for his saying is perhaps what would follow: resorting to the sale of waqfs on the claim of ruin; but the Imam built his school on blocking the means; just as it is not permitted to sell the endowed real estate, it is not permitted to sell its rubble.

Note: the author's words are restricted to the case where the founder did not stipulate to the beneficiary the sale of the property; otherwise it is permitted, whether he tied it to need or not, as if the founder stipulated to himself the sale of the property: its sale is then permitted to him, in application of the condition, by analogy with the condition of reversion in his charity (al-Fawa'id al-Dawani, 2/164-165). As for the Shafi'is, I have not found a view with them on the case where the founder stipulates the substitution of the waqf; they rather forbade selling the waqf and changing it, as will come, and did not mention the ruling of the stipulation in what I found. And Allah knows best.