Islamic Fiqh > Endowments (waqf) and property > Conditions for the validity of a waqf > Second category: void conditions where the waqf remains valid
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Updated on 06 October 2026 at 10:50 PM
This part belongs to the section: All parts.
These conditions are partly those of the first category according to those who validate the waqf and annul the condition. They also include: conditioning that the property not be lent except with a pledge, or that it not leave its habas place except with a pledge, or that it not leave it at all: the waqf is valid and the condition void; the Hanafis, the Malikis and the Shafi'is according to the sound position explicitly stated it.
Ibn Nujaym the Hanafi says: a branch: in recent eras, waqfs of books have been seen with the condition that they not be lent except with a pledge, that they not leave the place of the habas except with a pledge, or that they not leave it at all. Here is my view: the pledge is not valid upon these books, for they are not guaranteed in the beneficiary's hand, and they cannot be qualified as a loan (ariyya) either; whoever takes them, if he is among the beneficiaries, is entitled to benefit from them and his hand over them is a hand of trust: conditioning taking a pledge is void; if he gives one, it is a void pledge; the books remain in the keeper's hand as a deposit of trust, for the void contracts and the valid contracts are alike in guarantee, and the pledge is a deposit. That is if the legal pledge is meant; if its linguistic meaning is meant, namely a reminder object (tadhkira), the condition is valid because the purpose is valid.
And when the waqif's intent is not known, one may say the nullity of the condition by interpreting it according to the legal meaning, or its validity according to the linguistic meaning, which is the closest to validation whenever possible.
In that case it is not permitted to remove the books without the reminder object; and if one says the nullity, it is not permitted to remove them with it, by impossibility, nor without it, either because it contradicts the waqif's condition, or for the nullity of the exception: as if he had said "they never leave"; if he had said that, it would be valid, for it is a condition with a valid purpose, their removal being a probable place of loss; the waqf's administrator should rather enable whoever wants to benefit from these books to do so in their place. In some endowments it is said: "they leave only with a receipt"; that poses no problem and there is no reason to annul it.
It is as we interpreted his "except with a pledge" in the linguistic sense: it is valid, and the purpose is that the waqif's authorization of benefiting be conditioned upon the one who takes the book depositing in the waqf's storeroom what will remind him of returning the property and remind the keeper to claim it: it is fitting that this be valid; if he takes it otherwise than according to the waqif's condition, he is prevented. We do not say that this receipt remains a pledge, but he may take it back; when he takes it, the keeper claims the book from him, which he must return even without a claim.
And it is possible to interpret the waqif's word "pledge" in this sense, so that the condition is valid when he expresses it by the word "pledge", by applying the wording to validity whenever possible; in that case it is permitted to take the book with the mentioned condition and forbidden without it; but the pledge's rulings are not established for him, and he is not entitled to sell the pledge nor the endowed book if it perishes without negligence; if it perishes through his negligence, he guarantees it; but the pledged object does not become fixed for its redemption, and its holder is not prevented from disposing of it (al-Ashbah wa-l-Naza'ir p. 355-356; Majma' al-Damanat p. 247; Ibn Abidin 4/352).
Al-Hattab reports, fourth point, that in "al-Masa'il al-Malqut" shaykh Taqi al-Din was asked: if someone endows a book upon the Muslims in general while conditioning that it not be lent except with a pledge, is this pledge valid? He answered: this pledge is not valid, for the book is not guaranteed in the beneficiary's hand, and it cannot be qualified as a loan; whoever takes it, if he is among the beneficiaries, is entitled to benefit from it and his hand is a hand of trust: conditioning the pledge is void; the books remain in the keeper's hand as a deposit of trust, for the void contracts and the valid contracts are alike in guarantee. That is if the legal pledge is meant; if its linguistic meaning is meant, a reminder object, the condition is valid because the purpose is valid; and if the waqif's intent is not known, one may say the nullity according to the legal meaning, or the validity according to the linguistic meaning, which is closer to correctness (Mawahib al-Jalil 7/498; Sharh Miyara 2/236).
Al-Ramli says: al-Qaffal issued the fatwa, when a book or other is endowed and it is conditioned that it not be lent except with a pledge, that this condition is binding; some later scholars weakened it for three reasons: it is a pledge upon the thing itself that is not guaranteed, whose nullity is beyond doubt; the pledger is one of the entitled ones, whereas the pledger is not entitled; the aim of the pledge is the redemption upon the pledged's price in case of loss, whereas this endowed property, if it perishes without aggression or negligence, is not guaranteed: this condition is therefore void and must not be followed. Al-Zarkashi said: al-Qaffal's statement is rejected (al-Ramli's hashiya on Asna al-Matalib 2/150).
Ibn Hajar al-Haytami was asked about the pledge upon the endowed books, according to the established custom: is it valid? He answered: they explicitly stated that among the conditions of the pledged is that it be a debt, which requires the nullity of that as with the other properties; al-Mawardi explicitly stated it; but al-Qaffal gave his opinion in favor of the binding character of the condition, and al-Subki examined the question, the gist of which is: if the waqif means the legal pledge, the pledge is not valid; if he means the linguistic sense, namely that the pledged be a reminder object, it is valid; if his intent is unknown, the nullity of the condition is possible by interpretation according to the legal meaning; then it is not permitted to remove the book with a pledge, by impossibility, nor without it, either because it contradicts the waqif's condition, or for the nullity of the exception, as if he had said "it never leaves", which would be valid because the purpose is valid, the removal being a probable place of loss.
The validity of the condition is possible by interpretation according to the linguistic meaning; he said: it is what is closest to validation whenever possible. Al-Zarkashi objected to him: the legal rulings do not follow the language; how could validity be pronounced whereas the habas is not permitted; what use is the validity in that case? One may answer: qualifying the condition as a pledge while the pledged is a property indicates the waqif's intent of a pledge in the linguistic, not legal, sense; al-Subki's statement is then directed: the waqif conditioned the permission of benefiting from the property by a condition, namely the deposit of an object with the nazir or another until the fulfillment of his purpose, as a guarantee and safety against the negligence leading to loss; it is a valid meaning sought by the sharia: following his condition is therefore obligatory. It is thus that one answers the weakening by some of al-Qaffal's statement (al-Fatawa al-Fiqhiyya al-Kubra 2/281).
In "al-'Ubab": if it is conditioned in the waqf of a book that it not be lent except with a pledge, the condition is followed: if the book perishes with the borrower without negligence, he does not guarantee it and recovers his pledge (al-'Ubab 859).
The Hanafis mentioned examples of the waqf's validity with the nullity of the condition:
The waqif conditions the removal, the appointment and all the dispositions for whoever will administer among his children, and that none of the judges nor of the emirs interfere therein; if they interfere, the curse of Allah be upon them: that is a void condition. Ibn Abidin reports the answers of the mufti Abu al-Su'ud: if the waqif conditions that no judge nor emir interfere, under pain of the curse, may they interfere? He answers: in the year 944 of the Hijra, these conditioned waqfiyyat were drafted thus; the administrators, even if emirs, present themselves to the supreme state according to the requirements of the sharia, and those of lower rank present their views with the judges of the country according to the articles in force; the judges do not contravene the administrators nor the administrators the judges: thereby the noble order came.
He continues: if the waqifs wanted any corruption, it would occur; when the judges and the emirs interfere, the curse is upon them: they are the cursed, for it is established that all the conditions contrary to the sharia are vain and void. Let it be retained (Ibn Abidin 4/388).
If the waqif conditions that the sultan or the judge not remove the waqf's nazir: he may remove the one who is not worthy, even if it is the nazir himself who conditioned it for himself: he may remove and dismiss him if he is treacherous, as the Hanafis explicitly stated (al-Ashbah p. 195; Ibn Abidin 4/387).
The Hanafis also say: if the waqif conditions that neither the judge nor the sultan have any word to say about this waqf, it is a void condition; the right of speech belongs to the judge, for his examination is higher; it is a condition that deprives the beneficiaries of the interest and paralyzes the waqf: a condition without utility nor interest, not accepted; if the judge sees fit to add a partner to it, that is permitted to him, like the guardian who adds another when it is valid (al-Bahr al-Ra'iq 5/241; Ibn Abidin 4/388).
Among the examples among the Malikis:
If the waqif conditions that the repair of the waqf be at the beneficiary's expense, like the one who habas a house upon a man, his son and his grandson, conditioning upon the beneficiary the repair of what decays out of his own wealth: the condition is not valid, for it is an unknown rental, not knowing at how much the repair will amount; the waqf is valid, for the nullity targets the condition, not the waqf, and because the property was spent in the way of Allah; its repair falls upon the waqf's produce (al-Sharh al-Kabir with al-Dasuqi's hashiya 5/477; al-Taj wa-l-Iklil 4/580; Mawahib al-Jalil 7/495; Sharh Mukhtasar Khalil 7/93; Tahrir al-Mukhtasar 4/656).
Whoever endows a land upon which there is an annual charge (wazifa) and conditions that this charge be taken from the beneficiary and not from the produce: the condition is void and the waqf valid; if he conditions that the repair be upon the produce and the annual charge upon the produce, that is permitted according to the well-known; others say that it is not permitted. If he conditions taking it from what the produce yields, the apparent is that there is no disagreement about the permission.
If the waqif conditions not beginning with the repair of what has broken in the waqf, or leaving the expenses if it is an animal, and beginning with its produce for the benefit of the beneficiaries: following the waqif's condition is not permitted, for it leads to the nullity of the waqf from the origin; the waqf is valid and the condition void. The same applies to every condition leading to that: one does not comply with it, but one begins with the waqf's repair and the expenses, for therein lies the permanence of the property and the perpetuity of its benefit.
Among the examples among the Shafi'is according to the opinion opposite to the sound one, as came in the first category: if he endows something with the option for himself of keeping his waqf and returning to it whenever he wishes, or conditions for another, or conditions his return in some way, the condition is void and the waqf valid, like the divorce without return, and like in the hadith of the lifetime habas (Mouslim no. 1625): the Prophet made its share for the beneficiary during his life and for his heirs after his death, removing the ownership from the grantor and annulling his condition (Mughni al-Muhtaj 3/467; Nihayat al-Muhtaj 5/431; al-Najm al-Wahhaj 5/487-488; al-Dibaj 2/524). And if he endows upon his son while conditioning returning to him if he dies: the waqf is valid and the condition void among the Shafi'is, like the lifetime habas (Rawdat al-Talibin 4/146).
As for the Hanbalis: the conditions are only required to be kept if they do not lead to missing the legal purpose, and it is not permitted to preserve some of them after the loss of the legal purpose. Among the examples of the waqf's validity and the annulment of the condition among the Hanbalis:
If he fixes the imamate of the mosque, of the ribat or of the school, or the preaching (khataba), to a person contrary to the explicit sunna or to its apparent, whether his contrariety is due to lack of knowledge of the sunna or to a weak interpretation: conditioning that is not permitted.
If he restricts the worshippers of the mosque to a madhhab that is not specifically theirs: for the establishment of the mosque status requires non-restriction, as "al-Tahrir" says; conditioning the restriction conflicts with it according to the sound position of the madhhab. According to an opinion, it is valid and the mosque is restricted to them according to the more probable opinion, because of the schools' disagreement on the rulings of the prayer; it becomes like a school or a ribat.
Whoever conditions in the qurubs the preference of the lesser category has conditioned contrary to Allah's condition, such as conditioning in the imamate the advancement of the less knowing.
If the waqif conditions that a wicked person (fasiq) dwell in his waqf, whether his wickedness is the injustice toward the creatures and their transgression by word and deed, such as insult or beating, or the transgression of Allah's limits: the condition is not valid.
If the waqif declares in his waqf that the nazir may do what he wills, absolutely, or what he judges good, absolutely, the condition is void, contrary to the sharia; the nazir must state the interest, verify it, seek it and act upon what appears as interest.
If the waqif conditions celibacy for the entitlement to the waqf's revenue: the married one has more right than the one living in celibacy, at parity of the other descriptions (Kashshaf al-Qina' 4/318, 320; al-Insaf 7/55-56; Matalib Uli al-Nuha 4/321; Manar al-Sabil 2/333).
There is no disagreement among the jurists that the waqif's conditions must be observed when they are valid and do not contravene the Islamic sharia nor the purport of the waqf contract, for he is the owner: he may place his wealth wherever he wills so long as it is not a sin, and single out a category among the poor even though the allocation to all of them would be a qurba. 'Umar (may Allah be pleased with him) endowed and laid down conditions: if following his condition were not obligatory, his condition would have no benefit.
Al-Boukhari (no. 34) reported a chapter: "if he endows a land or a well while conditioning for himself something like the Muslims' buckets"; Anas endowed a house and, when he arrived there, he lodged in it; al-Zubayr gave his houses as charity and told his divorced daughters to dwell there without causing nor suffering harm: if she was sufficiently provided by a husband, she had no right; and Ibn 'Umar allocated his share of 'Umar's house to the lodging of the needy of Abdallah's family. All these conditions, if they were not valid, permitted and to be followed, their conditioning would have no benefit (Ibn Abidin 4/343; al-Sharh al-Kabir with al-Dasuqi's hashiya 5/475; Mawahib al-Jalil 7/493; al-Taj wa-l-Iklil 4/578; Sharh Mukhtasar Khalil 7/93; Sharh Miyara 2/234; al-Fawa'id al-Dawani 2/161; Tahrir al-Mukhtasar 4/654; al-Sawi 9/167; Mughni al-Muhtaj 3/469; I'anat al-Talibin 3/319; al-Insaf 4/53-55; al-Furu' 4/454; Sharh Muntaha al-Iradat 4/352, 356; Kashshaf al-Qina' 4/381-382; al-Rawd al-Murbi' 2/174; Matalib Uli al-Nuha 4/316, 320; Manar al-Sabil 2/331-332).
The waqif's conditions generally return to the distribution and the division of the waqf's revenue, the determination of the beneficiaries and their descriptions, the due date of the right, the allotted amount, the equalization and the preference, and other conditions of this kind: one must defer to his condition. Here are some examples of this category.
The jurists of the four schools explicitly stated that if the waqif conditions beginning, from the waqf's produce, with a designated person before the others, or with the nearest then the next among the poor of his relatives, or conditions that the produce of the first year go to some people and that of the second year to others, one must act upon his condition.
The Hanafis say: if the waqif conditions that the waqf's produce be given to the people nearest to him by lineage or kinship, the nearest then the next, or says "the nearest then the nearest": al-Hasan ruled, for a man who bequeaths the third of his wealth to the neediest then the next among his relatives, and who has among his relatives someone owning a hundred dirhams and others owning less, that one gives to the one owning the least until he reaches a hundred dirhams, then the remainder is divided among them all equally. Al-Khassaf said: the waqf is, in my view, like the wasiyya.
If he says "on condition of beginning with the nearest then the next among the poor of my relatives, that he be given from the produce what enriches him": one gives to the nearest of them two hundred dirhams, then to the next likewise, until the end of the lineages; if something remains, it is among them; if the produce is insufficient, one begins with the upper lineage giving each his threshold (nisab), and so on until the produce is exhausted: the waqf is valid and the produce is directed according to what is conditioned. If he says "on condition of beginning with the nearest to me by lineage or kinship": one gives from this waqf's produce each year a thousand dirhams, then to the next nine hundred, then to the next eight hundred, according to this decreasing ratio until the end of the lineages; the upper lineage receives a thousand, and so on according to what is conditioned until the produce is exhausted; whoever is left with nothing is excluded, and whatever the produce exceeds the waqif's word goes to the needy, once the relatives have received what was designated for them.
If he says "upon the poor of my relatives, the nearest then the next": one begins with the one nearest to him by lineage, each receiving two hundred dirhams, then the next likewise until the produce is exhausted; that is an istihsan (juristic preference): according to analogy, the whole produce would be given to the nearest lineage, without giving anything to those after, as long as the nearest do not die out; that is what Hilal mentioned (al-Is'af p. 118).
If he says: "this land of mine is a charity endowed for Allah in perpetuity upon Zayd and 'Amr as long as they live, then after them upon the needy, on condition of beginning with Zayd: that he be given from this charity's produce each year a thousand dirhams, and that 'Amr be given his sustenance for a year", the waqf is permitted: one begins with Zayd, to whom a thousand is given, then 'Amr is given his annual sustenance; all the remainder is between them in equal shares, for he first associated them by his word "upon Zayd and 'Amr"; if he had added nothing, everything would have been in equal shares between them; when he detailed a share, one acts upon that detail for it. If the produce does not suffice for what he said, Zayd is served first, then, if something remains, 'Amr is given, otherwise he has nothing.
If the produce comes after Zayd's death and amounts to three thousand, and 'Amr's sustenance equals a thousand: he is given a thousand for his sustenance, then five hundred more to complete the half of the produce, as if Zayd were alive and something remained; the rest for the needy. And if 'Amr dies and Zayd remains, the ruling is the same: he takes a thousand five hundred, the rest for the needy. That is when the waqif first associated the two; if he had not said "upon Zayd and 'Amr" but: "this land is a charity endowed for Allah in perpetuity: one begins with Zayd, to whom a thousand of the produce is given, then 'Amr is given his sustenance for a year", and the produce is three thousand while 'Amr's sustenance equals a thousand: each receives a thousand, and the third thousand goes to the needy, for he fixed for each a determined measure.
If he says: "upon Zayd, 'Amr and Bakr: one begins with Zayd, the produce is his as long as he lives, then for 'Amr likewise, then for Bakr likewise", his waqf takes effect according to his word, advancing some over others, then, when they die out, the produce goes to the needy.
If he says: "this land is a charity endowed for Allah in perpetuity upon Zayd and 'Amr as long as they live: for Zayd a thousand dirhams of its produce each year, and for 'Amr two hundred", and the produce amounts to a thousand: it is divided into sixths, five sixths for Zayd, for his share is multiplied by the whole thousand, and one sixth for 'Amr, for his share is multiplied by two hundred. If he says "for Zayd its half and for 'Amr its third", the produce is divided into seven shares: three for Zayd and four for 'Amr. If he says "for Zayd its half and for 'Amr its third" (twelve shares), the produce divides into twelve shares: seven for Zayd and five for 'Amr, for the holder of the half takes six shares out of twelve, the holder of the third four, and two shares remain about which the waqif said nothing: they are between them in equal shares, not for the needy, for he attributed the whole produce to the two at the beginning of his word; if he had stopped there, everything would have been in equal shares; but when he detailed, one acts upon the detail as well.
Do you not see that if he says "its produce runs each year upon so-and-so and so-and-so: to so-and-so the third", and is silent about the other, the remainder is his? It finds its origin in Allah's word:
"And if his two parents inherit from him, the third then goes to his mother"
Surah An-Nisa, 11
And if he says "its produce runs each year upon Zayd and 'Amr: for Zayd a hundred dirhams of it" and is silent about the remainder, Zayd receives a hundred each year and the remainder goes to 'Amr; if the produce is only a hundred, it is for Zayd and 'Amr has nothing (al-Is'af p. 122, 124; al-Muhit al-Burhani 5/724).
The Malikis say: if the waqif conditions in his waqf deed beginning with so-and-so among the beneficiaries with such a share of the produce, then dividing the remainder among the others, or giving him each month such an amount, he is given that share first, before the others, and he is compensated for the first year from the second year's produce; likewise in reverse: if there is no produce in the second year, it is given from the excess of the first year's produce, if he did not say "from each year's produce". If he says "from each year's produce" and a year comes without produce, neither beginning nor compensation: one does not give from the future revenue for the unpaid past, for he related the produce to each year.
The substance: when he relates the produce to the waqf or to the pronoun, and a year yields not what must be given or paid, while another year yields his right or the payment after attributing what he deserves for that year, he is given what was not obtained in the other; but when he relates the word "produce" to each year, one does not give from one year's revenue for another (al-Sharh al-Kabir with al-Dasuqi's hashiya 5/476; al-Taj wa-l-Iklil 4/579; Mawahib al-Jalil 7/503; Sharh Mukhtasar Khalil 7/92-93; Tahrir al-Mukhtasar 4/655; al-Sawi 9/166, 168).
The Shafi'is say: if he conditions the first year's produce to some people, the second year's to others, and so on as long as they remain, his condition is followed (Rawdat al-Talibin 4/159; al-'Ubab 858).
The Hanbalis say: one refers to the waqif's condition in the advancing, such as beginning with a part of the beneficiaries: "I endow upon Zayd, 'Amr and Bakr, and one begins by giving to Zayd", or "I endow upon such a group and one begins with the most righteous, the most knowing, the sick or the poor". One also refers to his condition in the delaying, which is the opposite of advancing: "I endow upon Zayd, 'Amr and Bakr, and Zayd is served last", or "I endow upon such a group and the slow of understanding is served last" (al-Insaf 7/53; Kashshaf al-Qina' 4/315; Sharh Muntaha al-Iradat 4/354).
Most of the jurists hold that it is permitted for the waqif to condition in his waqf the equality of right among the beneficiaries, or the preference of some over others, whether they are men or women, minors or adults.
The Hanafis say: if he says "this land is a charity endowed upon the children of so-and-so, on condition that I may prefer whom I will among them", and dies before preferring some over others, the produce is among them equally, for the preference attached to none. If he says "I preferred so-and-so by allotting him the whole produce", that is not valid, for it is a specification and not a preference: one must give each something, then increase whom he wills, with little or much, absolutely or for a determined duration. If he adds "upon the children of so-and-so and their offspring" and prefers one of them, his son and his offspring as long as they multiply, that is permitted: it is for him and his offspring forever, without possible withdrawal, for the preference attaches to the origin of the waqf through its conditioning. If he prefers one of them with half the produce for a year, that is permitted and constitutes a precedent for his partners in what happens afterwards, the will of preference returning to him.
If he says "I preferred so-and-so over his brothers with half the produce" and they are three: the preferred one is entitled to two thirds and his two brothers to one third, for the half became his by preference and the other half is divided in thirds among them for equality: each one sixth; the half with the sixth makes two thirds (al-Is'af p. 126).
The Malikis say: when the waqif says "my house is a waqf upon my children" without specifying any preference, the equality between the man and the woman in the allocation is obligatory; if he specifies by preferring the woman over the man or the man over the woman, one acts upon that (al-Sharh al-Kabir with al-Dasuqi's hashiya 5/474; al-Taj wa-l-Iklil 4/576; Sharh Mukhtasar Khalil 7/91; Tahrir al-Mukhtasar 4/653; al-Sawi 9/166, 168).
The Shafi'is say: the waqif's condition is observed in the measures, the descriptions of the beneficiaries and the due date of the right; if he endows upon his children while conditioning the equality between man and woman, or the preference of one, that is followed (Rawdat al-Talibin 4/158).
The Hanbalis say: one refers to the waqif's condition in his division regarding the equalization, by making the revenue equal among the beneficiaries: "the man and the woman are equal"; and regarding the preference, by making it unequal: "to the man the share of two women". Ibn Qudama says: if he prefers some over others, it is done according to his word: if he says "I endow upon my children and the children of my children: to the man two shares and to the woman one share, or to the man the share of two women, or according to their inheritance, or according to their succession shares, or the reverse, or to the elder double what the younger has, to the knowing double what the ignorant has, to the one with burdens double what the rich has", or the reverse, or if he designates by preference a specific person, or his son, or the like: it is done according to his word, for the inception of the waqf is delegated to him: the same applies to his preference and his ordering (al-Mughni 5/360; al-Sharh al-Kabir 6/212; al-Insaf 7/53-54; Kashshaf al-Qina' 4/316; Sharh Muntaha al-Iradat 4/353).
The jurists of the four schools agreed that if the waqif conditions in his waqf that the revenue or the lodging be reserved to the followers of a specific madhhab among the four, he restricts it exclusively to them and does not include the others; whoever leaves the madhhab leaves the waqf and the right.
The Hanafis say: if the waqif designates a madhhab and conditions that whoever leaves it goes out, his condition is taken into account: if he conditions in the waqf that whoever leaves the madhhab of
Abu Hanifa leaves the waqf, so it is; if one of them passes to the madhhab of al-Shafi'i, he leaves the waqf; if one of them claims against another that he passed from the madhhab of
Abu Hanifa to that of al-Shafi'i and the accused denies it, his word is retained, the proof lying upon the claimant. If he endows upon his children while conditioning that whoever passes to the madhhab of the Mu'tazila goes out, and one of them passes, he goes out; if one claims against one of them that he became a Mu'tazili, the proof lies upon the claimant and the word goes to the denier.
Likewise if the waqif is a Mu'tazili and conditions that whoever passes to the madhhab of the people of the sunna goes out: his condition is taken into account. If he conditions that whoever leaves the madhhab of the people of the sunna to become a Khariji or a Rafidi goes out, and if he apostatizes (may Allah protect us) from Islam, he goes out, the woman like the man. If he conditions that whoever leaves the madhhab of affirmation (ithbat) goes out, and one leaves then returns to the affirmation, he does not return to the waqf, for the madhhab of the people of affirmation is Islam itself and the acknowledgment of the laws of Islam: whoever leaves it has left Islam and its laws; if he returns to the affirmation after leaving it, his right to the waqf does not return, unless the waqif conditioned that whoever returns to the affirmation recovers his right.
That, unlike the one who endows upon the poor of his relatives who dwell in Baghdad: if some of them move to Kufa then return to dwell there, their right returns, for their state is considered on the day of the division of the produce. Do you not see that if he endows upon the poor of his relatives while there are among them poor and rich, the produce is for the poor; then if the rich become poor and the poor become rich, the produce is for those who became poor, to the exclusion of those who are self-sufficient; if their state were not considered on the day of the division, it would sometimes be necessary to give the produce to the rich to the exclusion of the poor, which is not permitted because contrary to the waqif's condition; and if some of his relatives dwelt in Kufa at the time of the waqf then moved and settled in Baghdad, they are entitled to the produce (al-Bahr al-Ra'iq 5/266; al-Is'af p. 106-107; al-Fatawa al-Hindiyya 2/406-407).
The Malikis say: if the waqif conditions the restriction of one of the four madhhabs by directing the waqf's produce toward it or by the teaching in his school, his condition is followed in an obligatory manner and it is not permitted to turn away from them to others (al-Sharh al-Kabir with al-Dasuqi's hashiya 5/475; al-Taj wa-l-Iklil 4/579; Sharh Mukhtasar Khalil 7/92; Tahrir al-Mukhtasar 4/655).
The Shafi'is say: the waqif's condition is observed: if he endows upon scholars on condition that they be of the madhhab of so-and-so, or upon the poor on condition of exile or old age, his condition is followed, like the school, the ribat and the cemetery when he restricts them to a group: they are restricted to them, the benefit returning to them. If he conditions in the teacher that he be a Shafi'i, it is not permitted to entrust that teaching to a non-Shafi'i, nor to teach something else in a place thus restricted (Rawdat al-Talibin 4/158; Mughni al-Muhtaj 3/468; Nihayat al-Muhtaj 5/431; Kanz al-Raghibin with the hashiyas of Qalyubi and 'Umayra 3/253; al-Najm al-Wahhaj 5/489-490; al-Dibaj 2/525).
The Hanbalis say: if the waqif restricts the school to the followers of a madhhab, such as the Hanbalis or the Shafi'is, it is restricted to them; if he restricts it to the people of a country or to a tribe, it is restricted to them; the same applies to the ribat and the khanqa, like the cemetery restricted to the people of a madhhab, a country or a tribe: in application of the condition, unless the restriction occurs by an innovation (bid'a). Ibn Qudama says: if he prefers some over others, it is done according to his word, as was cited: "whoever marries among them has a share, whoever separates has nothing", "whoever memorizes the Quran has a share, whoever forgets it has nothing", "whoever occupies himself with knowledge has a share, whoever neglects it has nothing", "whoever is upon the madhhab of so-and-so has a share, whoever leaves it has nothing": all of that is valid according to the condition.
Hisham ibn Urwa reported: "al-Zubayr made his houses a charity upon his children, which are neither sold nor given, and it was granted to his divorced daughters to dwell there without causing nor suffering harm: if one of them was sufficiently provided by a husband, she had no right in the waqf"; that is not suspending the waqf upon a description, but an absolute waqf whose right is conditioned upon a description; all of that is al-Shafi'i's madhhab without any known disagreement (al-Mughni 5/360; al-Insaf 7/55; Kashshaf al-Qina' 4/318; Sharh Muntaha al-Iradat 4/355-356).
The jurists differed in the case where the waqif conditions in the mosque he endows that a group, a specific sect or the followers of a specific madhhab be exclusively granted it.
The Shafi'is according to the more correct opinion, and some Hanbalis, hold that if the waqif conditions at the inception of the mosque's waqf its restriction to a sect, such as the Shafi'is, it is restricted to them, out of regard for the waqif's purpose, by following his condition and cutting off the dispute in the rites: the others neither pray therein nor retreat (i'tikaf), that being forbidden to them; as long as one of them is present, he may turn the others away; this condition is nonetheless disliked even if it is valid; when they die out, the mosque becomes general again.
According to the opinion opposite to the more correct one: the mosque is not restricted to them and his condition is not followed, for making a place a mosque is like the manumission: there is no meaning in restricting it to a group. The Imam, al-Ghazali and the shaykh validated it, by virtue of Allah's word:
"And that the mosques are reserved for Allah"
Surah Al-Djinn, 18
And of the Prophet's saying: "These mosques were not built for that: they were built for the remembrance of Allah and the prayer in general". On this basis, al-Mutawalli said: the waqf is annulled by the annulment of the condition; the Imam said: it is not annulled, for the void conditions have no effect in the manumission (Rawdat al-Talibin 4/158; al-Najm al-Wahhaj 5/489; Mughni al-Muhtaj 3/468; Nihayat al-Muhtaj 5/431; Kanz al-Raghibin with the hashiyas of Qalyubi and 'Umayra 3/253; al-Dibaj 2/525; al-Insaf 7/55).
The Hanbalis, and an opinion among the Shafi'is as has come, say: if the waqif restricts the worshippers of the mosque, of the ribat or of the school to the followers of a madhhab, they are not restricted to them, for the establishment of the mosque status requires non-restriction. But if he fixes a person for the imamate, the supervision or the preaching, the designation of another is not valid, in application of the condition. And if he restricts the imamate of a mosque, of a ribat or of a school, or the preaching, to a madhhab, it is restricted to it, so long as the conditioned imamate does not bear upon one of the rulings of the prayer contrary to the explicit sunna or to its apparent, whether the contrariety is due to lack of knowledge or to a weak interpretation: conditioning that is not permitted (al-Insaf 7/55; Kashshaf al-Qina' 4/318; Sharh Muntaha al-Iradat 4/356).
Imam al-Suyuti poses a question: they said that the mosque endowed upon designated people cannot be entered nor receive the prayer without their authorization: are the schools and the ribats the same? And may the beneficiary authorize the benefit in general, sleeping, sitting, eating, the litigants gathering there, judging between them there, teaching the children there? Or is it restricted to what concords with the waqif's condition? Answer: al-Asnawi reported in "al-Alghaz" that al-Qaffal's words in his fatawa suggest the prohibition; then al-Asnawi says of himself: the analogy is the permission.
And I say: the detail is preferable: if the mosque is endowed upon designated persons, such as Zayd, 'Amr and Bakr, or their offspring, or the offspring of so-and-so, the entry with their authorization is permitted; if it is endowed upon designated categories, such as the Shafi'is, the Hanafis and the Sufis, the entry is not permitted to the other categories, even with the beneficiaries' authorization; and if the waqif explicitly declared forbidding the entry to the others, there is no dispute at all. And when it is said that the entry with authorization is permitted, in the first category of the mosque, the school and the ribat, they benefit from it according to what the waqif conditioned for the designated persons, for they follow them and are bound to what the waqif conditioned (al-Hawi li-l-Fatawi 1/149).
The majority of the jurists hold in general that if the waqif's condition is unknown, the produce is divided among the beneficiaries equally, without preferring some over others.
The Malikis say: if he knows the waqif's condition in the allocation, it is followed in the equalization and the preference; otherwise, the produce is directed equally, for that is the origin; and if its beneficiaries do not know it, it is like a waqf whose allocation has not been determined (al-Dhakhira 6/329).
The Shafi'is say: if the waqif's condition, in the ordering among the beneficiaries or in the measures, is unknown due to the loss of the waqf deed and the absence of the witnesses, the produce is divided among them equally, for lack of priority. Some reported that the sounder is the waqf until they reconcile; al-Nawawi says: it is the analogy. The place of the equal division is when the property is in their hands; if it is in the hand of some of them, their word prevails with the oath, their claim being supported by possession; if the waqif is alive, one defers to his word without oath; upon his death, one turns to his heirs; if he has no heirs but a nazir appointed from the waqif's side, one turns to him, not to the one appointed from the heir's or the governor's side; if the nazir and the waqif differ, one turns to the nazir or to the waqif: two opinions; if the nazir and the beneficiary differ: the two opinions. Al-Nawawi says: one refers to the custom of the nazirs who preceded him if their custom concords.
If we know the waqf but not its beneficiaries: al-Ghazali and others said that it is treated as a waqf whose allocation was not mentioned, thus as an absolute waqf. Al-Hisni says: that is how al-Nawawi transmitted it from al-Ghazali, but it is an error: al-Ghazali said that it is like the one whose term is severed (munqati' al-akhir), and the waqf is valid; joining it to the absolute waqf requires invalidity, for the more correct opinion in the absolute waqf is that it is not valid; Allah is the Most Knowing (Kifayat al-Akhyar p. 360-361; Rawdat al-Talibin 4/168-169; Asna al-Matalib 2/473; Mughni al-Muhtaj 3/484-485; Fatawa al-Ramli 1/356).
The Hanbalis say: if his condition is unknown because evidence was established for the waqf without its condition, one acts upon a running custom, if it exists, then upon the established usage ('urf) in the waqf for the measures of the allocation, like the jurists of the schools; for the running custom and the established usage in the waqf indicate the waqif's condition more than the wording of the widespread report. Shaykh Taqi al-Din said it, and it was related of him that he issued the fatwa, for the one who endows upon one of his children while he has several children and the name is unknown, that lots be drawn.
Moreover, the origin is the non-restriction of the waqf: it is absolute, and the absolute receives the ruling of the usage. Then, if there is neither custom nor usage in the waqif's country, as in a village: the equality: one equalizes among the beneficiaries, for the sharing is established and the preference is not. If the beneficiaries of the waqf are not known, it is treated as an absolute waqf whose allocation was not mentioned (Sharh Muntaha al-Iradat 4/356; Kashshaf al-Qina' 4/316; al-Fatawa al-Kubra 4/510; al-Mubdi' 5/336; al-Insaf 7/78; Manar al-Sabil 2/331).
The Hanafis say: if he says "this land is a charity endowed upon the children of so-and-so, on condition that I may prefer whom I will among them", and dies before preferring, the produce is equal, for the preference attached to none. Likewise if he endows upon them and dies before naming anything for any of them: the produce is equal, because of its interruption by his death (al-Is'af p. 36, 38). And Ibn Abidin's hashiya says: if the waqif's condition is unknown, one acts upon the previous running customs, as is the ruling for the other waqfs (Ibn Abidin 2/624).
The jurists differed on the violation of the waqif's condition: is it permitted without need or necessity? Permitted only in case of need or necessity? Permitted for the interest? Or absolutely forbidden?
Ibn Hajar al-Haytami the Shafi'i mentioned in his book "al-Zawajir" that violating the waqif's condition is a major sin: it is the two-hundred-and-thirty-third major sin (no. 233); its mention among the major sins is apparent even though they did not state it explicitly, for its violation entails consuming people's wealth unjustly, which is a major sin (al-Zawajir 1/508). That is outside the state of necessity; al-Ramli the Shafi'i says: in case of necessity, violating the waqif's condition is permitted, for it is known that he does not intend to paralyze his waqf nor its reward (Nihayat al-Muhtaj 5/454).
As for the Hanafis, they permitted violating the waqif's condition for the interest in the following cases:
First case: if he conditioned not substituting the waqf: the judge may substitute it for the interest, on condition that the beneficiary leaves the benefit entirely, that there be no revenue to maintain the waqf, and that the sale not be grossly underpriced; "al-Is'af" conditions that the substitutor be a judge of Paradise, that is, endowed with knowledge and practice, so that one does not attack the annulment of the Muslims' endowments, as is most often the case in our time.
Ibn Nujaym says: another must be added in our time: substituting with a real estate and not with dirhams and dinars, for we have seen the administrators consuming them and rarely buying a replacement; no judge has investigated that despite the multiplicity of substitutions in our time, although I alerted some judges who intended to investigate then gave up (al-Ashbah p. 195; al-Bahr al-Ra'iq 5/241; Ibn Abidin 4/387).
Second case: if he conditioned that the judge not remove the nazir: he may remove the one who is not worthy.
Third case: if he conditioned not renting his waqf for more than a year whereas people do not want to rent for a year, or if the extension benefits the poor: the judge may contravene, not the nazir.
Fourth case: if he conditioned that recitation be done upon his grave: the designation is void, according to the opinion disliking recitation upon the graves, the retained opinion being the contrary.
Fifth case: if he conditioned distributing the excess of the produce as charity to whoever begs in such a mosque: the administrator may give to a beggar outside that mosque, outside the mosque, or to one who does not beg.
Sixth case: if he conditioned for the beneficiaries bread and a specific meat each day: the administrator may pay them the value in cash; it is said elsewhere: they may demand the specific item and take the value: the choice is theirs, not his.
Seventh case: the increase by the judge with the imam's knowledge is permitted if what is allotted does not suffice, and provided he be knowing and pious.
Eighth case: the sultan may contravene the conditions if the origin of the waqf is the treasury (al-Ashbah p. 195; al-Bahr al-Ra'iq 5/241; Ibn Abidin 4/387; al-Fatawa al-Hindiyya 2/401).
Shaykh al-Islam Ibn Taymiyya said: it is permitted to change the waqif's condition for what is better, even if it varies according to the eras, to the point that if he endows for the jurists and the Sufis and the people need the expedition, it is directed toward the army; and if he endows for the interests of the Sanctuary and its cultivation, it may be directed toward those who perform the functions the mosque needs: cleaning, guarding, carpets, opening and closing the doors.
The jurists' statement "the waqifs' texts are like the Lawgiver's texts" means in the meaning and the signification, not in the obligatoriness of acting; the verification is that the wording of the waqif, the testator, the one making a vow, the contractor and every contracting party is interpreted according to his view and his habit of discourse and language, whether it coincides with the language of the Arabs or that of the sharia or not; and the running custom and the established usage in the waqf indicate the waqif's condition more than the wording of the widespread report (al-Fatawa al-Kubra 4/509). He also says: the conditions are only required to be kept if that does not lead to missing the legal purpose, obligatory or recommended: preserving some conditions after the loss of the purpose is not permitted (Majmu' al-Fatawa 31/16).
He says: whoever conditions in the qurubs the preference of the lesser category has conditioned contrary to Allah's condition, such as conditioning in the imamate the advancement of the less knowing; the nazir executes what the waqif conditioned (al-Furu' 4/455; al-Insaf 4/56; Kashshaf al-Qina' 4/318-319; Matalib Uli al-Nuha 4/320).
Ibn al-Qayyim said: the waqifs' texts are subject to contradiction and difference; they must be annulled when they contravene the Lawgiver's texts and be abrogated; there is then no prohibition concerning them at all; contradicting these conditions for what is more beloved to Allah and His Messenger and more beneficial to the waqif and the beneficiary is permitted and preferable; taking them into account and turning away from them when the two options are equal is permitted, and stopping with them is not determined (I'lam al-Muwaqqi'in 3/293).