Islamic Fiqh > Endowments (waqf) and property > Conditions for the validity of a waqf > The waqf of dirhams and dinars
Contents
Updated on 06 October 2026 at 10:50 PM
This part belongs to the section: All parts.
The fuqaha divided dirhams and dinars into two kinds. The first is the waqf of dirhams and dinars destined for loan and profit-bearing lending. The fuqaha differed over the ruling of the waqf of dirhams and dinars for loan and profit, with the return of their equivalent: is it permitted or not?
The Hanafis, except Zufar, Ibn Shas and Ibn al-Hajib among the Malikis, the Shafi'is according to one of the two aspects, and the Hanbalis in the school, held that the waqf of dirhams and dinars from which benefit is drawn by loan is not valid, for the waqf is the retention of the root and the devoting of the benefit, and what yields benefit only through destruction does not bear it: their substance is consumed, thus leaving the waqf, and it is their owner, that is, the holder of the coin, who pays its zakat, ownership remaining upon him (Mukhtasar Ikhtilaf al-Ulama 4/162-163; Sharh Fath al-Qadir 6/219; Bahr al-Ra'iq 5/219; Majma' al-Anhar 2/580; Durrar al-Hukkam 6/131; al-Fatawa al-Hindiyya 2/362; Ibn Abidin 4/363; Sharh al-Kabir with Hashiyat al-Dasuqi 5/457; Sharh Mukhtasar Khalil 7/80; Hashiyat al-Adawi 2/343; Mawahib al-Jalil 7/481; Rawdat al-Talibin 4/135; Mughni al-Muhtaj 3/454; Tuhfat al-Muhtaj 7/448; Nihayat al-Muhtaj 5/414; Kanz al-Raghibin 3/240; al-Najm al-Wahhaj 5/457; al-Dibaj 2/516; al-Mughni 5/373; Sharh al-Kabir 6/191; al-Mubdi 5/318; al-Insaf 7/10-11; Kashshaf al-Qina 4/298; al-Rawd al-Murbi 2/170; Sharh Muntaha al-Iradat 4/335; Manar al-Sabil 2/323; Matalib Uli al-Nuha 4/280; al-Ifsah 2/46).
Ibn al-Humam, may Allah have mercy on him, said: the waqf of what yields benefit only through destruction, like gold, silver, food and drink, is not permitted according to most of the fuqaha; gold and silver mean the dirhams and dinars and what is not ornament (Sharh Fath al-Qadir 6/218).
The Hanbalis said: the waqf of what yields no permanent benefit while remaining is not valid, like the coins, even for adornment and weighing, like a lamp of coin upon a mosque, or a silver ring set upon its door; likewise the waqf of dirhams and dinars destined for borrowing; for the waqf is the retention of the root and the devoting of the benefit, and what yields benefit only through destruction does not bear it; the holder of the coin pays its zakat, ownership remaining upon him; unless the coins are endowed by way of accessory, like a horse endowed in the cause of Allah together with a bridle and a saddle studded with silver: the waqf of the whole is then valid; if the silver of the saddle and bridle is sold and its price placed in an equivalent waqf, it is good, for no benefit is drawn from silver, like the retained horse that decays; it is not expressly spent on the horse's upkeep, for that would be spending it outside its path; in the Iqna', following the Ikhtiyarat, it is spent on its upkeep; likewise if he makes a waqf of ornaments without specification, it is not valid (al-Mughni 5/373; Sharh al-Kabir 6/191; al-Mubdi 5/318; al-Insaf 7/10-11; Kashshaf al-Qina 4/298; al-Rawd al-Murbi 2/170; Sharh Muntaha al-Iradat 4/335; Manar al-Sabil 2/323; Matalib Uli al-Nuha 4/280).
Ahmad, may Allah have mercy on him, said: I know of no waqf in money; the waqf concerns houses and lands only according to what the companions of the Prophet made waqf upon; he said: I know of no waqf of money at all (Kitab al-Wuquf from the Jami Ulum al-Imam Ahmad by al-Khallal 2/495).
The second kind: Zufar among the Hanafis, upon whom most Hanafis gave fatwa, the Malikis in the adopted view, the Shafi'is according to the second aspect, and the Hanbalis according to one view, the choice of the shaykh al-islam Ibn Taymiyya, held lawful the waqf of dirhams and dinars for a loan from which benefit is drawn while the equivalent is returned, or for a mudaraba whose profit is given in charity in the path upon which the waqf was made. According to al-Ansari, who was among the companions of Zufar, concerning one who makes a waqf of dirhams, food, or what is measured or weighed: it is permitted; he gives the dirhams as a mudaraba, then gives their surplus in charity in the path upon which the waqf was made (Sharh Fath al-Qadir 6/219; Bahr al-Ra'iq 5/219; Majma' al-Anhar 2/580; Durrar al-Hukkam 6/131; al-Fatawa al-Hindiyya 2/362).
Ibn Abidin, may Allah have mercy on him, said: an inquiry into the waqf of dirhams and dinars. The author attributes it in the Khulasa to al-Ansari, who was among the companions of Zufar, and in the Khaniyya to Zufar: "concerning Zufar, the sharnbalaliyya". The author said in the Minh: as transactions spread in our time, in the Roman lands and elsewhere, over the waqf of dirhams and dinars, these fall under Muhammad's view, the one upon which fatwa is given, concerning the waqf of every movable subject to transactions, as is not hidden; there is thus no longer any need, on this basis, to specifically mention the lawfulness of their waqf according to the school of Imam Zufar, by al-Ansari's transmission; our master, the author of the Bahr, decreed their waqf lawful without mentioning disagreement.
Al-Ramli said: attaching the dirhams to a movable subject to transactions is debatable, for they are of what yields benefit while their substance remains upon the endower's ownership; and the author of the Bahr's fatwa on the lawfulness of their waqf without mentioning disagreement does not prove that they fall under Muhammad's view, the one upon which fatwa is given, concerning the waqf of a movable subject to transactions, since he may have chosen Zufar's view and decreed accordingly; and the proof he drew in the Minh from the cow's question is refuted by what we said: benefit is drawn from its milk and fat while its substance remains; however, should a judge so rule, the disagreement is lifted.
I say, that is, Ibn Abidin: dirhams are not determined by determination: though no benefit is drawn from them while their substance remains, their equivalent stands in their place, for lack of determination, and they are as if remaining; there is no doubt they are of the movable: as soon as transactions run in them, they enter what Muhammad permitted; that is why, when Muhammad exemplified things that became subject to transactions in his time, it was said in the Fath that some shaykhs added movables to what Muhammad mentioned upon seeing transactions run in them, and among them the cow's question and that of the dirhams and the measured: in the Khulasa, if he makes a waqf of a cow on condition that what comes from its milk and butter be given to the travelers' children, it is said: if that is the usage in a place where it prevailed in their endowments, I hope it may be permitted; and according to al-Ansari, concerning one who makes a waqf of dirhams or what is measured or weighed:
it is permitted; the dirhams are given as a mudaraba and their charity is given in the waqf's path; what is measured or weighed is sold and its price placed as a mudaraba or merchandise; on this pattern, if one makes a waqf of a bushel of wheat on condition of lending it to the poor without seed, that they may sow it for themselves, then that the loan's amount be taken after harvest, then that it be lent to other poor, in perpetuity, along this path, it must be permitted; he said: many such cases occur in al-Ray, the region of Duma and Nadd. Thereby appears the validity of the author's attachment of them to the customary movable according to Muhammad's view, the one upon which fatwa is given; they transmitted it from Zufar only because it was not customary then, and because he was the one who initiated it. In the Nahr: the implication of what passed from Muhammad is the prohibition of the waqf of wheat in the Egyptian lands, on account of the absence of wholesale usage; the waqf of dirhams and dinars, however, was introduced in the Roman lands.
As for his words "and the measured", they are conjoined to the author's words "and the dirhams"; his words "and its price is placed as a mudaraba or merchandise" apply likewise to the waqf of dirhams and dinars, and what comes of the profit is given in charity in the waqf's path: that is the meaning of the Fath's words citing the Khulasa "then charity is given with it", read in construction: that is, of its profit; and the Is'af's wording is: then the surplus is given in charity (Ibn Abidin 4/363-364; see Bahr al-Ra'iq 5/219; Majma' al-Anhar 2/580; Durrar al-Hukkam 6/131; al-Fatawa al-Hindiyya 2/362).
The Malikis, in the school, said: the waqf of dirhams and dinars for loan is permitted, and the return of the equivalent stands as the substance's permanence; it is the text of the Mudawwana; as for the waqf with the substance's remaining, it is not permitted by consensus, no lawful benefit resulting from it. According to one Maliki view, the waqf of dirhams and dinars is disliked (Sharh al-Kabir with Hashiyat al-Dasuqi 5/457; Sharh Mukhtasar Khalil 7/80; Hashiyat al-Adawi 2/343; Mawahib al-Jalil 7/481). Al-Nawawi, may Allah have mercy on him, said: the waqf of dirhams and dinars bears two aspects, like their hire: if we permit the hire, the waqf is valid for them to be rented out (Rawdat al-Talibin 4/134). Al-Mardawi, may Allah have mercy on him, said: in the Fa'iq: it is related from Imam Ahmad that the waqf of dirhams is valid, benefit being drawn from them in loan and the like; our shaykh, that is, Taqi al-Din, may Allah have mercy on him, chose it.
He said in the Ikhtiyarat: if he makes a waqf of dirhams upon the needy, this lawfulness is not far-fetched (al-Insaf 7/11). The shaykh al-islam Ibn Taymiyya, may Allah have mercy on him, said: Ahmad stated more than that: the waqf of what yields benefit only with the replacement of its substance; Abu Bakr Abd al-Aziz said in the Shafi: al-Maymuni transmitted from Ahmad that dirhams endowed upon the people of his house involve charity, while those endowed upon the poor do not. I said: a man made a waqf of a thousand dirhams in the cause of Allah? If for the poor, there is nothing in it; and if he endowed them for the mounts and weapons?
It is a matter of confusion. Abu al-Barakat said: the apparent is the lawfulness of the waqf of coins for the purpose of loan, or of growth with the charity of the profit, as we related from Malik and al-Ansari; Malik's school is the validity of the waqf of coins for loan, mentioned by the author of the Tahdhib and others concerning zakat, whose payment they made obligatory like the herds endowed upon the poor. Muhammad ibn Abdallah al-Ansari said: the waqf of dinars is permitted, for no benefit is drawn from them without consuming their substance; they are given as a mudaraba and the profit is assigned to the waqf's path; and it is known that lending destroys the substance and the equivalent stands in its place; placing the replacement in its place is in the waqf's interest, even without the need being a necessity. This question involves contestation in the school: many of its companions barred the waqf of dirhams and dinars, like al-Khiraqi and his followers, with no express statement from Ahmad to that effect; the judge and others transmitted it only from al-Khiraqi and others.
The judge interpreted al-Maymuni's narration, saying the waqf of dirhams and dinars is not valid according to what al-Khiraqi transmitted; Ahmad would have said in al-Maymuni's narration: if he makes a waqf of a thousand dirhams in the cause of Allah for the poor, there is no zakat in it, and if he endows them for the mounts and weapons, it is a matter of confusion; he did not thereby mean the waqf of dirhams: he meant one who bequeaths a thousand to be spent on horses in the cause of Allah, the validity of that bequest being suspended; Abu Bakr said: because the upkeep of the mounts and weapons weighs upon the one who endows them, as if he were puzzled about where these dirhams would be spent, the mounts' upkeep weighing upon their owners. The first view is more correct, for the question is explicit: he made a waqf of the thousand without bequeathing it after his death, for were he to bequeath its spending upon horses endowed by another, that would be permitted without dispute, as if he bequeathed what is spent upon a mosque built by another (Majmu al-Fatawa 31/234-235).
The fuqaha differed over the ruling of the waqf of ornaments for adornment.
The Shafi'is and the Hanbalis in the school held valid the waqf of ornaments for the purpose of wearing them. Ibn Qudama, may Allah have mercy on him, said: as for ornaments, their waqf for wearing and for lending is valid, by what Nafi narrated: Hafsa bought ornaments for twenty thousand and retained them for the women of Umar's family, without paying their zakat; it was narrated by al-Khallal with his chain; and because it is a substance from which benefit is drawn while it remains permanently: its waqf is therefore valid like real estate, the retention of its root and the devoting of its fruit being achievable; thus said al-Shafi'i.
It is narrated from Ahmad that their waqf is not valid: he rejected the hadith of Hafsa on its waqf, and Ibn Abi Musa mentioned it; the judge interpreted it as the hadith's invalidity in this matter; the basis of this narration is that adornment is not the original purpose of coins, so their waqf upon it is not valid, as if one endowed the dinars and dirhams; the first is the school, for what we said: adornment is among the important purposes and custom runs with it; the law took it into consideration by lifting zakat from the wearer and permitted hiring for it; it differs from the dinars and dirhams, upon which custom does not run for adornment, and whose zakat payment the law did not take into consideration, nor the guarantee of their benefit in usurpation, unlike our question (al-Mughni 5/373-374). Al-Zurkashi, may Allah have mercy on him, said: the waqf of ornaments is valid according to the generality of the Muslims, for it is among the important purposes (al-Zurkashi's commentary 2/204).
The Hanbalis said: if he makes a waqf of ornaments without determining them for wearing or lending, it is not valid according to the sound position of the school, for no benefit is drawn from them otherwise than by their consumption. Al-Mardawi, may Allah have mercy on him, said: were validity said with allocation to wearing and lending, it would be tenable, and it has parallels (al-Insaf 7/8; see Sharh al-Kabir 6/190; al-Mubdi 5/318; Kashshaf al-Qina 4/298; Sharh Muntaha al-Iradat 4/335; Manar al-Sabil 2/323; Matalib Uli al-Nuha 4/277).
The Shafi'is said: the waqf of ornaments for the purpose of wearing is valid, on account of the lawfulness of their hire and the possibility of benefiting from them while their substance remains (al-Hawi al-Kabir 7/519; Rawdat al-Talibin 4/134; al-Wasit 5/179).
The Hanafis, the Malikis and the Hanbalis according to one view held that the waqf of ornaments for wearing is not valid, as appears clearly from their earlier words on the ruling of the waqf of dirhams and dinars (Sharh Fath al-Qadir 6/218; Hashiyat al-Dasuqi 4/457).
The shaykh al-islam Ibn Taymiyya, may Allah have mercy on him, said: the waqf of ornaments is valid; it is the view of al-Khiraqi, of the judge and others; the judge makes the school a single view on the validity of its waqf. Abu al-Khattab and others make the question one of dispute, even citing texts of invalidity as far as what reached them. The judge said: if he endows the ornaments for lending and wearing, the narration of al-Athram and Hanbal says: it is not valid; he rejected the hadith related from Umm Salama on its waqf; and the apparent of what al-Khiraqi transmitted is the lawfulness of its waqf, for benefit may be drawn from it while its substance remains; his words "it is not valid" mean the hadith on the matter is not valid, not that the waqf is not valid. Abu al-Khattab said: the waqf of ornaments for lending and wearing is permitted upon the apparent of what al-Khiraqi transmitted, while al-Athram and Hanbal transmitted from him that it is not valid (Majmu al-Fatawa 31/239-240).
The majority of the fuqaha laid down, for the waqf's validity, the absence of any other's right upon the substance, as if it were pledged or rented. First, the waqf of the pledged substance.
The Hanafis and the Shafi'is according to one view held the waqf of the pledged substance valid: once it is redeemed from the pledge, it returns to the category of beneficiaries, for Allah's right cannot be dropped once established; it therefore becomes like emancipation.
The Hanafis said: the waqf of the pledged property is valid: if he redeems it, or dies solvent, the waqf is valid and the property returns to the category; if he dies insolvent it is sold for the debt, and the waqf is void.
In the Is'af: if he makes the waqf of the pledged property after delivering it, it is valid, and the judge compels him to pay what lies upon him if he is solvent; if he is insolvent he annuls the waqf and sells it for his debt (al-Is'af, p. 21; Bahr al-Ra'iq 5/205; Hashiyat Ibn Abidin 4/397; Tanqih al-Fatawa al-Hamidiyya 2/216).
The Malikis, the Shafi'is in the school and the Hanbalis held that the waqf of the pledged property is not valid, for it is a disposal that does not extend to another's ownership: it is therefore not valid, like sale and gift. Al-Dardir, may Allah have mercy on him, said: the object of the waqf requires that no other's right weigh upon it: the waqf of a pledged thing, a rented thing or a fugitive slave is not valid so long as another's right weighs upon it.
Al-Dasuqi, may Allah have mercy on him, said: that is, if the endower intends to endow now what is mentioned while it is pledged or rented; if he makes a waqf of what is mentioned intending that its waqf, from now on, begin after the redemption from pledge or hire, that is valid, for immediate effect is not required in the waqf (Hashiyat al-Dasuqi with the Sharh al-Kabir 5/457). Al-Shirazi, may Allah have mercy on him, said: if he makes the waqf of the pledged property, two views arise: the first, it is like emancipation, for it is Allah's right that cannot be dropped once established; the second, it is not valid, for it is a disposal that does not extend to another's ownership, like sale and gift (al-Muhadhdhab 1/313). Al-Rafi'i, may Allah have mercy on him, said: the waqf of the pledged property bears two paths: the first, it is like emancipation, on account of its risk and its suspension which admits no revocation; the more apparent is definitive prohibition, and it differs from emancipation, freedom being stronger by its extension.
Al-Mutawalli said: if we say the waqf needs no acceptance, it is like emancipation; if we say it needs it, it is cut off by refusal; that is a third path. Al-Nawawi, may Allah have mercy on him, said: the waqf of the pledged property is void according to the school, and it is said among the views; in the Tatimma: if we say it needs no acceptance, it is like emancipation; otherwise it is void (Rawdat al-Talibin 3/295; Sharh al-Kabir 4/488).
The Hanbalis said: the waqf of a pledged property without the creditor's permission is not valid, for the waqf is a disposal removing ownership in what cannot validly be sold; if he grants him permission, his disposal is valid, for the creditor's bar on his disposal rested on the creditor's right attached to the property, a right he dropped by his permission; and the pledge is annulled, for this disposal prevents the pledge from the outset, therefore prevents it continuously (Sharh Muntaha al-Iradat 3/263, 4/335; Kashshaf al-Qina 4/297; Matalib Uli al-Nuha 4/278).
The fuqaha differed over the hired substance: is its waqf valid or not?
The Hanafis and the Shafi'is held the waqf of the hired substance valid: when the term of the hire ends, it is assigned to the category of the waqf.
The Hanafis said: the absence of another's right is not required for the waqf's validity: if he makes a waqf of what lies in another's hire, it is valid, the hire is not annulled, and when it expires or one of the two dies, the substance is assigned to the categories of the waqf (Bahr al-Ra'iq 5/205; Hashiyat Ibn Abidin 4/391).
The Shafi'is said: if the lessor makes a waqf of the land he rented out, or the heir of one who bequeathed its benefit for a period, or the lessee of a land the building or plantation he built or planted in it, it is valid, for each is owned property from which benefit may be drawn as a rule while its substance remains, whether the waqf occurs before or after the term's end (Asna al-Matalib 2/458; Hashiyat Umayra 3/241).
The Malikis held that the waqf of the hired substance is not valid, for among the conditions of the object of the waqf with them is that no other's right weigh upon it; this is if the endower intends to endow the hired substance now while he is lessee; if he makes a waqf of what is mentioned intending that its waqf, from now on, begin after the release from hire, that is valid, immediate effect not being required in the waqf (Hashiyat al-Dasuqi with the Sharh al-Kabir 5/457). As for the Hanbalis, I have not come upon an express view with them on the waqf of the hired substance.
The fuqaha differed over the object of the waqf: must it be required to be of what can validly be sold, or only that it be owned by a human being, even if its sale is not valid?
The Shafi'is in the school and the Hanbalis, and this is the implication of the Hanafi words, required of the object of the waqf that it be of what can validly be sold: the waqf of the untrained dog, of the swine, of the beasts of prey unfit for hunting and of the non-hunting birds of prey is therefore not valid.
The Shafi'is said: the object of the waqf is required to be a specific substance, owned in a transferable manner, yielding benefit: the waqf of seized property is not valid, for it admits no transfer, like the free man, and likewise the contract-slave; the waqf of the trained or trainable dog, on the soundest view, is not valid; it is said: never valid; as for the untrained or untrainable dog, its waqf is categorically not valid (Rawdat al-Talibin 4/134; Mughni al-Muhtaj 3/455; Tuhfat al-Muhtaj 7/450; Nihayat al-Muhtaj 5/416; al-Dibaj 2/517; Kanz al-Raghibin 3/242; al-Najm al-Wahhaj 5/460).
The Hanbalis said: the object of the waqf is required to be of what can validly be sold: on this basis the waqf of what may not be sold is not valid, like the mother of the child, the untrained dog and the pledged property; likewise the swine, the beasts of prey unfit for hunting and the non-hunting birds of prey, for it is a transfer of ownership over them during life, therefore not admitted like sale; and because the waqf is the retention of the root and the devoting of the benefit, and what holds no lawful benefit knows no devoting of the benefit; the dog, whose benefit is permitted exceptionally by necessity, admits no expansion; the pledged property, whose waqf annuls the creditor's right, may not be annulled; the waqf of the single unweaned camel calf is not valid, for its sale is not permitted, unless it is a Quran: its waqf is then valid while its sale is not. As for the trained dog, its waqf is valid, for its sale is permitted; and in its meaning, the birds of prey and the hunting beasts of prey: their waqf is valid and their sale permitted, unlike the non-hunting ones.
Al-Mardawi said: a narration of the school passed on the barring of their sale, meaning the hunting ones, so that their waqf is barred; the first view is more correct. The shaykh Taqi al-Din, may Allah have mercy on him, said: valid are the waqf of the trained dog, of the trained birds of prey and of what cannot be handed over in person (al-Insaf 7/10; see al-Mughni 5/374; Sharh al-Kabir 6/191; al-Mubdi 5/318; Sharh Muntaha al-Iradat 4/235; Kashshaf al-Qina 4/296).
The Malikis held that the object of the waqf is not required to be sellable: it suffices that it be owned, even if the owned thing one wishes to endow cannot be sold, like the hide of the sacrificial animal, the hunting dog and the runaway slave (Sharh Mukhtasar Khalil 7/7, 79; Hashiyat al-Dasuqi on the Sharh al-Kabir 5/455).
There is no disagreement among the fuqaha of Islam on the lawfulness of leasing the waqf, nor on the fact that whoever has the right to lease it is the administrator stipulated by the endower, should he have stipulated one, whether the beneficiary be a specific person, like Zayd or Amr, or unspecified, like the poor and the needy, and whether the administrator be the specified beneficiary himself or another. They differed only as to whether the beneficiaries have the right to lease it.
The Hanafis said: the beneficiaries of the yield or of residence do not own the right of leasing: if they wish to lease it, it is not permitted, for they have no right to the ownership nor possession, owning only the benefits without counterpart; they therefore do not own its transfer for a counterpart, which is leasing, otherwise they would own more than what they own, unlike lending for use; unless the endower stipulated the management and stewardship for the beneficiaries, or for the most capable among them, he being capable, or there being no other, for he is then appointed by the endower; or if the judge granted them permission to lease; the leasing is owned only by the manager or the judge; likewise, if the waqf is upon a specific man, it is not permitted for him to lease it, according to the view upon which fatwa is given. Al-Faqih Abu Ja'far said: if the rent returns wholly to the beneficiary, because the waqf needs no development, like the shops and houses, and there is no partner in the waqf, the leasing is then permitted.
As for the land: if the endower stipulated that the tithe, the land tax and the other charges be taken first, with the surplus going to the beneficiaries, they have no right to lease it, for the leasing annuls the endower's condition of beginning with the land tax and the charges; if he did not stipulate that, the leasing must be permitted, and the land tax and the charge weigh upon the lessee.
Its explanation: the beneficiary's leasing is only permitted in the sense of leasing his own possession, not with regard to leasing for the waqf, for he is not the waqf's manager; and if his leasing is valid with regard to the leasing of his own possession for himself, the rent is his, with no land tax nor anything: this amounts to our statement that it annuls the endower's condition; if the endower did not stipulate beginning with the land tax and the charges, his leasing must be permitted, and the land tax and the charge weigh upon the lessee; it resembles what is related from Abu Yusuf concerning endowed land whose beneficiaries are two or three: they share it and each takes a land he cultivates himself; Abu Yusuf said: if the land is tithe-paying, that is permitted of what comes to them; if the land is land-tax-paying, it is not permitted, for the tithe is a charity, and what they are endowed upon is like a charity in their favor: the category is thus one in the whole yield, and it resembles the residence of the house when the beneficiary is single:
they may then share it and each reside in a part by mutual accommodation, no condition being imposed there, the tithe not being taken at the start as the land tax and charges are; as for the land-tax-paying land, the endowers' habit is to stipulate that the land tax begin with the yields, and were we to defer the mutual accommodation, the land tax would not be in the yield but upon the beneficiaries, the state then being the image of mutual accommodation with each specified by what specifies him: whoever is specified in the benefit thereby becomes its owner, and the land tax weighs upon him as upon the owner, the endower's condition thereby being specified, the endower having stipulated that the land tax be in the yield (Bahr al-Ra'iq 5/236; Sharh Fath al-Qadir 6/224; al-Ikhtiyar 3/56; al-Muhit al-Burhani 5/752-753; Ibn Abidin 4/405-407).
Ibn Nujaym the Hanafi, may Allah have mercy on him, said: one will ask: if his leasing is not valid, what is the ruling of the rent he contracted? I answer: it behooves that it go to the waqf, though I have seen no express text; it would be better that the manager or the judge lease it: the apparent of their words is that the leasing is owned only by the manager or the judge, and that the judge is independent in leasing even if the manager refuses, unless the distribution is meant: the judge then leases it if there is no manager, or if there is one who refuses the better course; in the presence of the manager the judge has no such right (Bahr al-Ra'iq 5/236; Sharh Fath al-Qadir 6/224; al-Ikhtiyar 3/56; al-Muhit al-Burhani 5/752-753; Ibn Abidin 4/405-407).
The Malikis said: lending for use a person owned for his own benefit alone, like one upon whom a residence was endowed, is not valid, and neither is his hire (Minah al-Jalil 7/50).
The Shafi'is said: the benefits of a waqf upon a specific person are the beneficiary's ownership, and he disposes of them like owners: he may take them himself or through another, by lending for use or by hire, by consensus, for that is the endower's aim so long as he did not stipulate the negation of hire; if he stipulated it, it is barred; he may nevertheless lease only if he is the administrator or the administrator authorizes him to; he then owns the rent as if he leased his own property, and the rent is paid to him at once. If the waqf is upon a category, like the poor, the beneficiary owns the benefiting, not the benefit; likewise if the waqf is upon a specific person with a restriction, like a house endowed so that the village's teacher of children dwell in it: it is not permitted for him to lodge another in it, with or without rent, and the ruling is the barring of lending for use.
They said: if the endower stipulated the stewardship in his waqf for himself or for another, one or several, his condition is followed, whether he entrusted it during his life or by bequest, for he is the one drawing near to Allah through charity, and his condition is followed as in the allocations; if he stipulated the stewardship for no one, it belongs to the judge according to the school, for he holds the general supervision and is thus the worthiest of the waqf's management; and because the beneficiary's right and the right of his successors attach to it; and because ownership in the waqf belongs to Allah. The second view: it belongs to the endower, for the stewardship used to be his; if he stipulated it for no one it remains under his supervision. The third: it belongs to the beneficiary, for the yield is his, the stewardship thus reverting to him (al-Muhadhdhab 1/445; Rawdat al-Talibin 4/162; Mughni al-Muhtaj 3/475-481; Nihayat al-Muhtaj 5/446; Kanz al-Raghibin 3/259; al-Najm al-Wahhaj 5/505-506; al-Dibaj 2/530).
The Hanbalis said: the beneficiary may lease the waqf, for its benefits are owned by him: leasing them is therefore permitted to him like the lessee (al-Rawd al-Murbi 2/95).
The fuqaha differed over the duration of the waqf's lease: is it admitted without limit, or must there be a short term not to be exceeded? This when the endower has not stipulated a defined term, in which case his condition is followed, except for necessity according to the majority, as will come. The school among the Shafi'is and the Hanbalis is that the waqf carries the ruling of ownership: its lease is permitted for any term, however long. The reference for knowing the term during which a substance generally remains is only custom and the people of experience, and this varies from one substance to another: among the Shafi'is, the lease of land is valid for a hundred years or more; the house, for thirty years; the mount, for ten years; and so on for everything according to what suits it, the people of experience estimating that it remains that term.
The minimum term for which the lease of a house for residence is valid is one day, and less is not permitted; the minimum term of cultivation is the time during which the crop generally remains.
The majority's position is close: the consideration is custom, the usage being that this substance generally remains up to that term; this has already been treated in detail in the book of hire (Rawdat al-Talibin 4/25; al-Najm al-Wahhaj 5/368-369; Hashiyat Umayra on Kanz al-Raghibin 3/194; al-Fatawa al-Fiqhiyya al-Kubra 3/144; al-Mubdi 4/85; Kashshaf al-Qina 4/4; al-Rawd al-Murbi 2/96). The shaykh al-islam Ibn Taymiyya, may Allah have mercy on him, said: if the waqf is upon a general category, its lease is permitted according to interest, and that is not limited by a number according to most of the scholars (Majmu al-Fatawa 30/246).
The Hanafis in the chosen view, and some Shafi'is, held that long leases upon endowments are not permitted, lest the lessee claim their ownership. Al-Qadi and al-Mutawalli among the Shafi'is said: the rulers agreed that one does not lease for more than three years, lest it be effaced; al-Rafi'i said: this convention is not constant.
In the Amali of al-Sarakhsi: the waqf's lease for more than a year is barred if no need of development requires it; al-Nawawi said: it is odd; al-Damiri said: the imam cited it as one view, and it has no direction in the waqf upon categories of good (Rawdat al-Talibin 4/25; al-Najm al-Wahhaj 5/368-369).
The Hanafis said: the lease of lands for more than three years, and of houses, shops and the like for more than a year, is not valid, unless interest requires leasing the waqf longer: the judge then has the right to lease it longer, but the administrator has no right to do so without the judge's permission, unless the endower expressly permitted leasing it longer than this term if it is profitable; if the endower says for example "it is not permitted to lease this house for more than a year unless its leasing holds an interest for the poor beneficiaries", the administrator then has the right to lease it more than a year upon the basis of this condition. The place of the bar on leasing the waqf longer than that term is when the lessor is not the endower; as for the endower, he may go beyond that term as he wishes.
Al-Mawsili, may Allah have mercy on him, said: the waqf's lease beyond the term stipulated by the endower is not permitted, for the endower's condition must be considered: it is his property that he removed with a known condition, and it does not leave except by his condition; if he stipulated no term, the ancients of our school said its lease is permitted for any term, and the later ones said it is not permitted for more than a year, lest ownership be appropriated through the length of the term, erasing the waqf's mark in favor of ownership's mark, on account of the multiplication of injustices in our time, their domination and their legalization; it is said: three years for estates and a year for the rest, and that is the chosen view, for less is not desired for estates; and its lease is only permitted at the equivalent's rent, to ward off harm from the poor: if he leases it for three years at the equivalent's rent, then the rent rises through the multiplication of demands, the lease is not revoked, for what is considered is the equivalent's rent on the day of the contract (al-Ikhtiyar 3/56; al-Ashbah wal-Nazair 195; Bahr al-Ra'iq 5/241, 8/4-5; see al-Hidaya, commentary on the Bidaya 3/231-232; al-Jawhara al-Nayyira 3/232-325; Mukhtasar al-Wiqaya 2/110-111; Tabyin al-Haqa'iq 5/106; Ibn Abidin 4/387).
The Malikis said: if the waqf is upon specific persons, like so-and-so and his children, the administrator may not lease it more than two or three years, and the lease is not made in cash; if it is upon unspecified persons, like the poor, the sick, the bridges and the mosques, he may lease it for more: four years if it is farmland, and a year if it is a house or the like, whether the waqf is upon specific persons or not; if he leases more, it stands if he is the administrator, without annulment, so said Ibn al-Qasim; that is where no necessity requires leasing longer, as if the waqf had collapsed: its lease for what will rebuild it is then permitted, however long the time, forty years or more, according to the necessity's requirement, this being better than its ruin and effacement. As for the entitled one who leases it for one to whom its return reverts, its lease for ten years and the like is permitted, for the lightness of risk and because the return reverts to him, with no difference between land and house.
Its form: one who endowed upon Zayd then upon Amr: Amr may lease it from Zayd for ten years, whether the return is by endowment or by ownership. The place of this is when the endower stipulated no term, otherwise one acts upon his condition; and it holds when no necessity beyond it requires more for the waqf's interest: it occurred in the time of the judge Ibn Badis in Kairouan that a house endowed upon the poor fell to ruin and nothing was found to repair it; he decreed that it be leased for many years as made possible, on condition of repairing it from its rent, and he refused to permit its sale, and upon him reliance is placed.
Al-Dasuqi, may Allah have mercy on him, said: the administrator meant is the one who is among the beneficiaries; as for the other, he may lease more, for his death does not revoke the lease, unlike the entitled one, whose death revokes the lease, as in the Iqna, the Kabir and the Khush; our master al-Adawi said: I have seen no express text of it, and the apparent of their words is the absolute; ponder (Hashiyat al-Dasuqi with the Sharh al-Kabir 5/478-488; al-Taj wal-Iklil 4/592; Mawahib al-Jalil 7/509; Sharh Mukhtasar Khalil 7/99-100; Tathbir al-Mukhtasar 4/667).
The fuqaha of the four schools, the Hanafis, the Malikis, the Shafi'is on the soundest view, and the Hanbalis, agree that the endower's condition in the leasing of the endowed property is followed: if he stipulated that it not be leased more than a year, for example, or not leased at all, his condition is followed, except for necessity, as will be detailed.
The Shafi'is, against the soundest view, said: the endower's condition is not followed in that, for it is a confinement of the entitled one in the benefit.
The Hanafis said: the lease of lands for more than three years, and of houses, shops and the like for more than a year, is not valid, unless interest requires leasing the waqf longer: the judge then has the right to lease it longer, but the administrator has no such right without the judge's permission, unless the endower expressly permitted leasing it longer than this term if it is profitable; if the endower says for example "it is not permitted to lease this house for more than a year unless its leasing holds an interest for the poor beneficiaries", the administrator then has the right to lease it more than a year upon this condition. The place of the bar is when the lessor is not the endower; as for the endower, he may go beyond as he wishes.
Ibn Nujaym, may Allah have mercy on him, said: if the endower stipulated that his waqf not be leased more than a year while people do not wish to rent for a year, or if the longer term holds profit for the poor, the departure belongs to the judge, not to the administrator (al-Ashbah wal-Nazair 195; Bahr al-Ra'iq 5/241, 8/4-5; see al-Hidaya, commentary on the Bidaya 3/231-232; al-Ikhtiyar 3/62; al-Jawhara al-Nayyira 3/232-325; Mukhtasar al-Wiqaya 2/110-111; Tabyin al-Haqa'iq 5/106; Ibn Abidin 4/387).
The Malikis said: if the endower stipulated a term, one must act upon it, except for necessity: it is then permitted to lease the waqf longer than the term permitted for it, or longer than what the endower stipulated, for a necessity requiring leasing longer, as if the waqf had collapsed: its lease for what will rebuild it is then permitted, however long the time, forty years or more, according to the necessity's requirement, this being better than its ruin and effacement. It occurred in the time of the judge Ibn Badis in Kairouan that a house endowed upon the poor fell to ruin and nothing was found to repair it: he decreed that it be leased for many years as made possible, on condition of repairing it from its rent, and he refused to permit its sale, and upon him reliance is placed (Hashiyat al-Dasuqi with the Sharh al-Kabir 5/478-488; al-Taj wal-Iklil 4/592; Mawahib al-Jalil 7/509; Sharh Mukhtasar Khalil 7/99-100; Tathbir al-Mukhtasar 4/667).
The Shafi'is, on the soundest view, said: if he endowed on condition that it not be leased at all, or not be leased more than a year, the waqf is valid and his condition is followed, like the other conditions bearing an interest. The second view: his condition is not followed, for it is a confinement of the entitled one in the benefit. Al-Khatib al-Shirbini, may Allah have mercy on him, said: the case of necessity is excepted from that, as if he stipulated that the house not be leased more than a year, then it collapses and its development is possible only through a lease of years: Ibn al-Salah decreed the lawfulness in consecutive contracts, even if the endower forbade renewal, for the prohibition then leads to the property's idleness, which contradicts the endower's interest. Al-Subki and al-Adhra'i followed him, except for the restriction to consecutive contracts: they rejected it, saying the lawfulness should hold in a single contract.
What behooves, as our master said, is what Ibn al-Salah decreed, for necessity is measured according to its extent. If the endower stipulated that it not be leased more than three years and the administrator leases it six: if it is in a single contract, nothing of it is valid, nor is it extended by splitting the contract; if he leases three years, then three others before the first expire, the second contract is not valid, as Ibn al-Salah decreed. Should we subdivide upon the soundest view that the lease of the coming term by the lessee is valid, following the endower's condition, the two continuous terms are like a single term; we invalidated the second and not the first, the latter standing alone.
If the endower stipulated in his waqf that it not be leased to a frivolous or unjust person, and what is written in the waqf deeds, his condition is followed, so said al-Adhra'i, adding that he had seen no express text; it is apparent, and the apparent, as in the Matlab, is that the beneficiary holds the right of lending for use (Mughni al-Muhtaj 3/467-468; Rawdat al-Talibin 4/25; al-Najm al-Wahhaj 5/488; Nihayat al-Muhtaj 5/431; Hashiyat Umayra on Kanz al-Raghibin 3/252; al-Fatawa al-Fiqhiyya al-Kubra 3/144; Asna al-Matalib 2/465; al-Dibaj 2/252; al-Mubdi 4/85; Kashshaf al-Qina 4/4).
The Hanbalis said: reference is made to the endower's condition, and one must act upon it, in the barring of the waqf's lease or in the amount of its term: if he stipulated that it never be leased or not leased more than a year, the increase is not admitted; under necessity it is increased according to its extent, and the judges' practice in this has not ceased since distant times. The shaykh Taqi al-Din said: conditions bind to their fulfillment only if they do not lead to missing the legal aim.
Al-Ruhaybani, may Allah have mercy on him, said: it is preponderant that one must act upon the condition if there is no need to exceed the stipulated amount; if one has need, because the waqf's benefits stand idle and its development is possible only through that, it is permitted; it is preponderant that it be in contracts where it is needed, like a single contract; even if he stipulated that it never be leased and the waqf needs a lease, the administrator has the right to lease it, this being preferable to its sale: al-Mardawi and others decreed it, and our scholars have not ceased to decree so, it being preferable to its sale; preserving a part of it while its aim is missed is not permitted; in the Sharh al-Wajiz: if the waqf needs a development obtainable only by exceeding the stipulated term by another term, it is permitted to exceed it only by the extent of the need, as when the development requires a loan of money and none lends to those who lease for less than that term, or when development despite ruin, to rebuild it with the rent, is possible only with the increase: it is permitted to exceed according to need, for the waqf's development is obligatory, and what the obligation cannot be completed without must be done; and this is obligatory by the law (Matalib Uli al-Nuha 4/315-316).
Al-Bahuti, may Allah have mercy on him, said: al-Harithi said: according to some of them the increase according to interest is permitted, and that requires, in my view, a detailed treatment (Kashshaf al-Qina 4/315; Matalib Uli al-Nuha 4/353; Manar al-Sabil 2/332).
Ibn al-Qayyim, may Allah have mercy on him, said: among the false stratagems is their circumventing the leasing of the waqf for a hundred years, for example, though the endower stipulated that it not be leased more than two or three years: the long term is leased in separate contracts within a single sitting; this stratagem is absolutely void, for the endower intended by it only to repel the corruptions following upon the long duration of the lease: they are very many corruptions; how much endowed property has been appropriated through these ways, leaving the waqf's status through the length of the term and the lessee's seizure of the waqf, he, his offspring and his heirs, year after year; how many later generations have missed the waqf's benefit through the long lease; how many waqfs have been leased without an equivalent's rent because of the long term and the taking of the wage; how often the rent of the land or the real estate has multiplied to several times what it was, without the beneficiary being able to collect it.
In sum, the corruptions of this lease exceed counting, and the endower intended only to repel them, fearing them in the long lease: he therefore declared that it not be leased beyond the term he stipulated; leasing it beyond, in one contract or several, is an express violation of his condition, besides the corruptions, indeed the great corruptions it contains. What a marvel: would these corruptions vanish through the multiplication of contracts in a single sitting? What rational purpose has the man of sense who forbids the lease beyond that term and then permits it in a single hour through separate contracts? If one leases in separate contracts more than three years, can it properly be said "he fulfilled the endower's condition and did not violate it"?
This is among the emptiest of falsehoods and the ugliest of stratagems; it violates the endower's condition and the beneficiary's interest, and exposes this charity to invalidity, to the non-continuation of its benefit and to its not reaching whoever comes after the first layer and those near it; a mufti may therefore not decree to that effect, nor a judge rule so; and if he rules, his ruling is overturned, unless the waqf's interest requires that it fall to ruin and its profit cease, calling for the necessity of leasing it a long term to rebuild it with that rent: there, violating the endower's condition becomes necessary for the correctness of his waqf and the continuation of his charity; this may be preferable to its sale and replacement, and the sale or replacement may be preferable to the lease, and Allah knows the corrupter from the reformer.
What suggests amazement is the circumventing of the endower's condition and aim, his aim being proven with the corruption's appearance, and the standing upon the apparent of his condition and his wording contradicting his aim, the Book, the Sunna and the beneficiary's interest, to the point that it be Allah's and His messenger's pleasure, the endower's interest and the increase of his reward, the beneficiary's interest and the attainment of gentleness toward him, with a deed more beloved to Allah and His messenger: the endower's condition is not changed and one proceeds with the apparent of his wording though his aim proves contrary; this is nothing but a scarcity of fiqh, indeed its absence. If you circumvent to invalidate the endower's aim where it holds the great corruptions, why do you not circumvent for his aim and the Lawgiver's aim where it holds the preponderant interests, by specifying his wording, restricting it, or preferring Allah's condition?
Allah's condition is worthier and firmer; yet they say here: "the endower's texts are like the Lawgiver's texts"; this is among the emptiest of statements, for the Lawgiver's texts have never had a counterpart in the words of others; the endower's texts, however, are open to contradiction and difference: they must be invalidated if they contradict the Lawgiver's texts and be abolished; they then hold no sacredness at all; it is permitted, indeed preponderant, to depart from them toward what is more beloved to Allah and His messenger and more profitable to the endower and the beneficiary; and it is permitted to consider them and depart from them when the two things are equal; standing by them is not obligatory. We shall mention later, Allah willing, and explain what may lawfully be decreed and what may not among the endowers' conditions, the aim being to establish the nullity of this stratagem by the law, custom and language (Ilam al-Muwaqqiin 3/291-293).