The legality and wisdom of Waqf:
The majority of jurists went that Waqf as charity is legally permissible and it is delegated to it, and they cited general and private evidence, including:
General evidence: They inferred alms in general, including Waqf (the endowment), by the Almighty saying: "You will not obtain righteousness until you spend from what you love"
(Surat Al Imran - from verse 92)
They also quoted the saying of the Prophet (PBUH), (If the son of Adam dies, his work is interrupted except for three: ongoing charity, knowledge that benefits him, or a righteous child who calls for him). Waqf is a kind of ongoing charity.
Special evidence: They cited the endowment of the Messenger (PBUH), for it has been proven that, he made a Waqf with his land. It was narrated by Amr bin Al-Harith bin Al-Mutlaq that he said: "The Messenger of Allah (PBUH), left nothing but his white mule and his weapon and a plot of land he left as charity." Narrated by Al-Bukhari
And also what Ibn Omar, may Allah be pleased with them both, narrated: "Omar spoiled a plot of land after Khaibar's Ghazwa(Battle), and he headed to meet the Prophet (PBUH), and said: "I spoiled a plot of land, but not money more precious than it, waiting for your order in this regard, the Prophet (PBUH) replied: as you wish, make it as a Waqf and alms and Omar did the same. Its origin shall not be sold, donated, or inherited, but its revenues shall be allotted to the poor, the kinship, freedom of slaves, in the way cause of Allah, the guests and the wayfarer.
The one who is its administrator (Na'ther) has no obligation to eat from its revenue wisely or to feed a friend who is not part of it". The meaning of (more precious) is more worthy, and the meaning of (its Na'ther) is its administrator. This Hadithi is the origin of legality of Waqf and its provisions.
The wisdom of the legality of the endowment:
The endowment is a type of charity that is intended to draw close to Allah, the Almighty, as it is from the legitimate closeness that the honorable legislator has urged and deputized for, and one of the ways of generating goodness, abolishing the reward for the alms giver, if his work is accompanied by a good intention and a sincere desire.
Objectives of Waqf (there are two objectives of Waqf):
General objective: Waqf has a social function that may seem necessary in some societies and in some cases and circumstances experienced by nations. So Waqf has a major role in the development of society in its various branches, as it covers the needs of the poor groups and places of worship in the beginning, and goes beyond that to broad social goals and comprehensive charitable purposes such as educational centers, medical clinics and people with special needs.
A special goal: related to aspects of human nature, so the person is motivated to do good by many motives that, in their entirety, do not separate from the aims and objectives of Islamic law, including religious, social, family, realistic and instinctive motives.
Pillars and conditions of Waqf:
In order for Waqf to take place, there must be a person from whom the formulation is issued, which is the Endower, and the money on which it depends, which is Waqf or the endowment origin, and a destination to which the benefits of Waqf are to be spent which are the beneficiaries
Waqf takes place in the affirmative only, without the acceptance of the beneficiaries, and thus it differs from the contractual acts in which acceptance is considered one of its pillars. The acceptance is either verbal or written in a way that indicates the meaning of allocated the premises and dispensation of the benefit. If the Endower is incapable of them, it is held by the understandable sign. The fourth form of the acceptance with which Waqf takes place is the act with presumption indicating the will of the Endower. As if he builds a mosque and allows people to pray in it, or a cemetery and gives permission for burial in it. So the mosque and the cemetery become an endowment with the presumption of the endowment will.
In the formulation of Waqf, it is stipulated that Waqf form is assertive, that does not contain lack of the will of the endowment, so that the endowment is not concluded by a promise, and the principle of effectuation is required. Moreover, it is intended not to suspend the endowment on a condition such as suspending the endowment on the arrival of a certain person. The formulation also stipulates continuation which means permanent Waqf without being restricted by a specific time. The endowment is not valid for a specific period, which is what the majority of jurists said, but the Malikis said, that it is permissible to be subject to a fixed time. It means to set a period of time by which the endowment ends after elapsing thereof.
2. Conditions of the Endower:
In order for the endowment to be valid, it is required that he be eligible to donate, that he be free, adult, sane and rational, and not be forced to make Waqf it and be the owner of the premises that he wants to endow.
3. Conditions of Waqf (appointed endowment):
It is stipulated that the thing that is to be endowed should be money that is subject to a permissible use of it, so it is not permissible to make Waqf of Wine, for example, and to be owned by the endower at the time the endowment was established, known at the time of the endowment in due diligence that denies ignorance.
It is permissible for Waqf to be money in cash, real estate, stocks, or any movable property that can be used, and the use of it is required to be permanently used and not from the consumables that are removed, such as food, for example.
It is also valid to endow (Musha')a, which is the share owned by one of the partners in what has not been divided from real estate and the like, and it is known in terms of proportion such as a quarter, half or space area. The property may be endowed and Waqf asset may be increased as a result of additions that occur to it, whether the additions are in-kind or cash, depending on the circumstances.
4. Conditions of Waqf Beneficiaries:
It is the party that deserves the proceeds of the endowment money and its benefits, and it is the party on which the endowment is a kinship in itself and by the Endower so that it is believed that he will be rewarded for this endowment. It is stipulated in Waqf Beneficiaries that they should not be a party against which the endowment is forbidden in Islamic Sharia, and it is stipulated that Waqf Beneficiaries must be on a side not interrupted, such as Waqf on the paths of good and righteousness, such as: the Holy Qur'an, the needy, the poor, feeding, and others in the charitable endowment, and on children and relatives, in the Family endowment.
Waqf on the Self:
It is permissible for a waqf to make all or part of the endowment's yield for himself as long as he is alive, then after him for whomever he wants. This is what Abu Yusuf, Dhahriya and Imam Ahmad went to in one of his sayings. Their argument for that is what was narrated about of the Messenger (PBUH), that he used to eat from his endowment.
Waqf is not permissible to eat from it except on a condition. This was evidence that it is correct for the endowment to make all or some of the endowment yields for the endower himself. This opinion is also verified to facilitate the matter to the people and encourage them to submit Waqfs, and for this the Kuwaiti draft endowment law took this opinion.
Waqf of debtor and Waqf of life limiting patients:
If the endowment owes a debt that has been absorbed all his money, and was interdicted upon him at the request of the creditors, his endowment shall not be executed unless authorized by the creditors. On the grounds that paying the debt is a duty, the endowment is a donation, and the obligation takes precedence over the donation. And because the debtor is under an absorbed debt, the endowment may be taken as a means to evade the creditors' rights and harm them, and this is not permissible according to Sharia. To close this matter, the endower shall make it dependent on the creditors' permission, in order to preserve their rights.
The same is the case with life limiting patients (disease of death, which is a disease that a person is incapable of carrying out the work that he used to do when he is healthy and ends with death). Because the illness of death results in the creditors 'rights being attached to the patient's money from the time the illness fell and before the death actually occurred, preserving their rights, so that he cannot dispose of his money in a manner that leads to loss of rights.
The endowment of life limiting patient if he is not in debt, takes the ruling of the will, and it is correct and enforceable. The Endower may withdraw it as long as he is alive, if he dies and has an heir, and if what he endowed does not exceed one third, the endowment shall be carried out within the limits of one third, but what exceeded one third shall be upon desire of the heirs. If they permit it, it shall be executed, and if it is not permitted, it shall be void, (and if some permitted it but not others, the waqf shall be enforced against the right of those who authorized it, and null for the right of those who did not permit it).
Waqf added to after death (the will to endowment):
The endowment is either fulfilled in the state of life or added to after death. As for what is accomplished, it is executed as soon as it is issued by the Endower, and it may be in the whole money or in a certain share according to the wish of the Endower (as if he said that I make Waqf to all of my money which value a certain amount on good deeds or charity to be a completed endowment).
As for the endowment added to after death, of which formula is guaranteed, its wording is to postpone the validity of his endowment until after his death (as if he said that I make Waqf with a third of my money after my death to spend from his proceeds on aspects of good things). If what he endowed does not exceed one third, the endowment shall be carried out within the limits of one third, but what exceeded one third shall be upon desire of the heirs. If they permit it, it shall be executed, and if it is not permitted, it shall be void, (and if some permitted it but not others, the waqf shall be enforced against the right of those who authorized it, and null for the right of those who did not permit it).
Waqf for a non-Muslim and an Apostate:
If the Endower is a non-Muslim, then his Waqf is valid if Waqf Destination is a proximity to Allah, the Almighty in Islamic law. It is invalidated if it is not proximity without paying attention to the Endower's religion and belief. As for the apostate, when one of the conditions of the validity of the endowment was that the endowment be the property of the one who owns it, the sayings of the jurists differed regarding the ruling of the endowment of the apostate based on their difference in the effect of apostasy on the demise of the property of the apostate from his money.
The more correct view is that it is not valid to make Waqf by the apostate because his possession is removed by apostasy, and the endowment is from the actions that it is not correct based on his return to Islam, as it is stipulated being achieved.
The condition of the Endower:
If the Endower stipulates in his endowment something that does not contradict the provisions of Islamic Law (Shari'a) and does not harm the interest of the endowment or those who are endowed, then Waqf Administrator must follow its condition and implement it. The jurists considered the condition of the endowment in the rule of the law's text that it is obligatory to adhere to it.
But it is permissible to violate the correct condition if the endowment is not in the interest of those who are endowed, or if the endowment misses a purpose or an interest that is more likely than it. An example of conditions contrary to Sharia is for the Endower to stipulate celibacy for the one who is entitled to the endowment. An example of a condition contrary to the interest of the endowment is if it is a condition that the endowment is not leased except at a certain fee, and the situation is that this rent is not sufficient for the renovation of the endowment or becomes less than the rent of the endowment, in these cases and the like, the condition of the Endower does not apply.
The jurists have stated that if the endowment is associated with an incorrect condition, the condition is null and void and the endowment is valid.
The Ten Conditions:
It is a set of the correct conditions for the Endower to stipulate it in his endowment, and most of those Endowers took care of them and were keen to stipulate them in their endowments, and it has been termed as the ten conditions, which are:
Justifications for violating the endowment clause:
It is permissible to violate the standing condition in the following cases:
Revoking the endowment:
The jurists believe that it is not permissible to revoke the endowment because the basic principle is obligation when it is issued by its owner completing its conditions, except that Abu Hanifa believes that the endowment is not obligatory, so it is permissible for the endower to revoke his endowment unless the endowment is a mosque or a mosque endowment or the judge decides that the endowment is obligatory, in this case it is not permissible for the Endower to revoke the same. In Kuwait, the supreme order took the last opinion which says that it is permissible to revoke the endowment in whole or in part, whether charitable or offspring, and it is also permissible for it to change its banks (spending channels) and conditions, even if it deprives itself of that, except in the endowment of the mosque or the cemetery, and in what it has endured, it is not permissible to return to it or change it In it even if it is so.
Participation in the endowment:
It is permissible for one or more persons to participate in the formation of the endowment, whether is in cash or in-kind shares. Participation in the formation of the endowment may also be through monthly, annual or other deductions that the owners donate to contribute to the formation of the endowment.
Requirement for acceptance of Waqf's entitlement:
The majority of Jurists are of the view that if the endowment is for a specific person, it must be accepted in order to be deserved. But if the beneficiaries are not appointed, its acceptance is not conditioned.
The majority of Jurists consider acceptance a condition for valid endowment and entitlement thereof. The Malikis consider it a condition of entitlement only. The entitlement is intended to prove the right of the beneficiaries to benefit from the endowment. If the person appointed does not accept the endowment, then his share in the entitlement is transferred to the next person in the entitlement, if any, if the Endower has arranged the beneficiaries in a list, otherwise it is transferred to the poor.
Requirement of possession and receiving:
The majority of Jurists are of the view that the endowment is complete and obligatory by mere verbalization, without the need for the beneficiaries to receive the yield or the endowment property.
The Malikis stipulated that for the endowment to be complete and obligatory to possess it, the Endowment's Administrator must acquire the endowment's property. So the endowment is invalidated if the endowment is not possessed, or a hindrance occurred, such as the death of the Endower.
Determine the Endowment Entity:
If the endowment appoints an entity, it is appointed then, and it is not permissible to move to another entity unless this entity is satisfied in this regard, and the endowment exceeds its need and finds a similar entity for it. If the endowment is based on good deeds, and the endower did not designate a party from the righteous institutions or specific points, and it was not present, or there was no need for it, or the proceeds of the endowment exceeded its need, the revenue or its surplus would be spent to those in need of the offspring of the endower and his parents to the extent of their sufficiency, then to the needy of his relatives, and then to a charity aspect, and in the event that the charity aspect designated by the Endower was not present, then it was found, it would have the same act from the revenue from the time it was found.
Death of a beneficiary or being deprived of his entitlement:
If a beneficiary dies or deprived from the endowment, and the endowment is for a person appointed by the Endower by himself, and there is no one who follows him in the entitlement, his share is returned to those who shared the share with him. And this is the view of the majority of jurists. So if a person submits an endowment for his two sons (Ahmad and Mahmoud) and their children after them, then one of them died without having children, his share returned to his brother because he is the one with whom he shares the share. If the endowment is a list of classes and one of the beneficiaries dies, his share is for his branch. If not, his share is for those in his class who are among the people of the share that he was entitled to.
Stipulating list of classes in the endowment:
If the endower makes his endowment for some of beneficiaries, and a condition for others with salaries, the yield is divided between the beneficiaries and those with the salaries in a ratio between the salaries and the yield at the time of the endowment, if the yield was known at the time of the endowment. If the time of the endowment was not known, the yield was divided between the salary earners and the beneficiaries on the grounds that the beneficiaries had all the yield and the owners the salaries are equal to their salaries (what is meant by yield: the proceeds of the endowment, and what is meant by the share: that is, by shares, which is the amount of the share that the beneficiaries deserves to be entitled to).
If the endower required shares for some of the beneficiaries and salaries for others, the salaries shall be from the rest of the endowment yield after the shares. If the remainder does not meet the salaries, then the share is divided among the owners according to their percentage, and if the yield increases over the shares and the salaries, it is divided between those entitled to the two types by the percentage of their entitlement. The shares mean: the estimated share that was appointed by the Endower.
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