The status of Endowment – Waqf in Islam

A Waqf is an endowment of one’s original property that he has set aside whilst having the intention that its fruitions will be donated to benefit the Muslims; thereby seeking nearness to Allah. It is an ongoing charity that will benefit a person after his death.

E.g. setting aside land as a Waqf for the Muslims to bury their dead.

E.g. building a Masjid as a Waqf for the Muslims to pray in.

Original property refers to a property whose benefits may be derived while its essence remains, such as donating a building to be used as a mosque, renting a house and spending its rent on the needy, using it to print Islamic books, etc.

The benefits refer to its yield, such as crops, rent, provision of shelter, etc. that comes from the original property.

Establishing a Waqf is a highly recommended Sunnah (سنة مستحبة).

EVIDENCES

1-عَنِ ابْنِ عُمَرَ ـ رضى الله عنهما ـ أَنَّ عُمَرَ بْنَ الْخَطَّابِ، أَصَابَ أَرْضًا بِخَيْبَرَ، فَأَتَى النَّبِيَّ صلى الله عليه وسلم يَسْتَأْمِرُهُ فِيهَا، فَقَالَ يَا  رَسُولَ اللَّهِ، إِنِّي أَصَبْتُ أَرْضًا بِخَيْبَرَ، لَمْ أُصِبْ مَالاً قَطُّ أَنْفَسَ عِنْدِي مِنْهُ، فَمَا تَأْمُرُ بِهِ قَالَ ‏ “‏ إِنْ شِئْتَ حَبَسْتَ أَصْلَهَا، وَتَصَدَّقْتَ بِهَا ‏”‏‏.‏ قَالَ فَتَصَدَّقَ بِهَا عُمَرُ أَنَّهُ لاَ يُبَاعُ وَلاَ يُوهَبُ وَلاَ يُورَثُ، وَتَصَدَّقَ بِهَا فِي الْفُقَرَاءِ وَفِي الْقُرْبَى، وَفِي الرِّقَابِ، وَفِي سَبِيلِ اللَّهِ، وَابْنِ السَّبِيلِ، وَالضَّيْفِ، لاَ جُنَاحَ عَلَى مَنْ وَلِيَهَا أَنْ يَأْكُلَ مِنْهَا بِالْمَعْرُوفِ، وَيُطْعِمَ غَيْرَ مُتَمَوِّلٍ‏.‏ قَالَ فَحَدَّثْتُ بِهِ ابْنَ سِيرِينَ فَقَالَ غَيْرَ مُتَأَثِّلٍ مَالاً‏.

Ibn `Umar narrated: “‘Umar bin Khattab رضي الله عنه acquired some land in Khaibar and he went to the Prophet (ﷺ) to consult him about it saying, ‘O Allah’s Messenger (ﷺ) I have some land in Khaibar better than I have ever had. What do you suggest that I do with it?’ The Prophet (ﷺ) said, ‘If you like, you can give the land as an endowment and give its fruits in charity.’

So `Umar gave it in charity as an endowment on the condition that it would not be sold or given to anyone as a present, nor was it to be inherited. Its yield would be given in charity to the poor people, kith and kin. It could be used for the travelers and guests, for freeing slaves and for Allah’s Cause, and there would be no harm if the guardian of the endowment ate from it according to his need with good intention, and he could feed others without storing it for the future.” [Al-Bukhari]

‘Umar رضي الله عنه gave it in charity with the condition that it should not be sold, given as a gift, or inherited. And he gave the best land he had.

Allah says in Surah Aal-‘Imran [3:92]:

“By no means shall you attain Al-Birr (piety, righteousness, etc., it means here Allah’s Reward, i.e. Paradise), unless you spend (in Allah’s Cause) of that which you love; and whatever of good you spend, Allah knows it well.”

If a person stipulates something as a Waqf, then it is a Waqf, even after his death. No one has the right to take the property; it is excluded from the property of the man and is not included in the inheritance. 

2- The Prophet (ﷺ) said, 

إِذَا مَاتَ الإِنْسَانُ انْقَطَعَ عَمَلُهُ إِلاَّ مِنْ ثَلاَثَةٍ مِنْ صَدَقَةٍ جَارِيَةٍ وَعِلْمٍ يُنْتَفَعُ بِهِ وَوَلَدٍ صَالِحٍ يَدْعُو لَهُ

“When a man dies, all his good deeds come to an end except three: Ongoing charity (Sadaqah Jariyah), beneficial knowledge and a righteous son who prays for him.” [An-Nasaa’i]

3- Jabir رضي الله عنه reported, “There was no one from among the Companions of the Messenger of Allah (ﷺ) who had the means, but he set up a Waqf.” [Ibn Qudamah in Al-Mughni].

This act of worship was famous and known among the Companions.

Ash-Shafi’i رحمه الله said, “I was told that 80 Companions from among Al-Ansar gave in صدقات محرمات  [Forbidden Charity (i.e. Waqf)].”

Terms & Conditions related to giving a ‘Waqf’

The contract of the Waqf is done in either of two ways:

1) By Statement

I.e. To say, “I make this place a Waqf.”

Words that indicate a Waqf are further divided into two types: 

a) Clear Direct Words

E.g. “I make this a Mosque” or “I make this for the Sake of Allah” and so on. By the utterance of these words it becomes a Waqf with no need to add anything further.

b) Indirect Words

Sometimes people use unclear words, such as, “I forbid the benefits of this to myself” or “I give this in charity.” 

A charity is not necessarily a Waqf. In order for it to be considered a Waqf, the unclear statement should be accompanied with the intention to set up a Waqf, or it should be joined with a clear statement, or accompanied with one of the conditions of Waqf. E.g. to say: “This is for charity, it is not to be sold or inherited, etc

2) By Action

I.e. By doing something that customarily indicates Waqf.

E.g. To turn his house into a masjid and give permission for the people to pray in it forever. 

E.g. To give permission to the Muslims to bury their dead in his land permanently.

Conditions required in order for the Waqf to be valid:

1- The person who sets it up a Waqf should be of those who have authority over the property. I.e. He should be an adult, a free person, and mature, because a Waqf made by a person who is young, foolish, or a slave, is not valid.

2- The property that is given as a Waqf should be something through which ongoing benefit is derived whilst its original essence remains. Things which do not remain (i.e. food) after it have been used cannot be given as a Waqf.

3- The property given as a Waqf should be something specific. A Waqf which consists of something unspecified is invalid, such as saying, “I give one of my houses as a Waqf.”

4- The Waqf should be donated for a good purpose, such as building mosques and acquiring books of knowledge to be shared, e.g. for a library. Also, it can be used to benefit relatives, and the poor, etc. This is because the purpose behind it is to draw closer to Allah. It is not permissible to set up a Waqf for purposes that are not good, such as for plas of worship for the Kuffar, or for the books of heretics, or for putting lights on tombs, or to support those who look after tombs, or to buy unlawful things, etc.

5- The specific property which is set as a Waqf should be in full possession of the person setting it up.

6- The Waqf should be executable with immediate effect. A Waqf which is temporary or suspended is not valid, except when a person connects it to his death, saying, “When I die, my house will be a Waqf for the poor.” It should not be more than 1/3rd of his wealth if it is connected to the death of the person, because it falls under the rulings of the Will.

It is reported in Abu Dawud that ‘Umar رضي الله عنه wrote,

بِسْمِ اللَّهِ الرَّحْمَنِ الرَّحِيمِ هَذَا مَا أَوْصَى بِهِ عَبْدُ اللَّهِ عُمَرُ أَمِيرُ الْمُؤْمِنِينَ إِنْ حَدَثَ بِهِ حَدَثٌ أَنَّ ثَمْغًا وَصِرْمَةَ بْنَ الأَكْوَعِ وَالْعَبْدَ الَّذِي فِيهِ وَالْمِائَةَ سَهْمٍ الَّتِي بِخَيْبَرَ وَرَقِيقَهُ الَّذِي فِيهِ وَالْمِائَةَ الَّتِي أَطْعَمَهُ مُحَمَّدٌ صلى الله عليه وسلم بِالْوَادِي تَلِيهِ حَفْصَةُ مَا عَاشَتْ ثُمَّ يَلِيهِ ذُو الرَّأْىِ مِنْ أَهْلِهَا أَنْ لاَ يُبَاعَ وَلاَ يُشْتَرَى يُنْفِقُهُ حَيْثُ رَأَى مِنَ السَّائِلِ وَالْمَحْرُومِ وَذِي الْقُرْبَى وَلاَ حَرَجَ عَلَى مَنْ وَلِيَهُ إِنْ أَكَلَ أَوْ آكَلَ أَوِ اشْتَرَى رَقِيقًا مِنْهُ ‏

In the name of Allah, the Compassionate, the Merciful. This is what Allah’s servant ‘Umar, Commander of Faithful, directed in case some incident happens to him (i.e. he dies), that Thamg, Sirmah bin al-Akwa’, the servant who is there, the hundred shares in (the land of) Khaibar, the servant who is there and the hundred shares which Muhammad (ﷺ) had donated to me in the valley (nearly) will remain in the custody of Hafsah during her life, then the men of opinion from her family will be in charge of these (endowments), that these will neither be sold nor purchased, spending (its produce) where they think (necessary on the beggar, deprived and relatives). There is no harm to the one in charge (of this endowment) if he eats himself, or feeds, or buys slaves with it. [Saheeh Abu Dawoud #2879]

7- It is obligatory to act in accordance to the wishes of the one who set up the Waqf, so long as it does not go against the Shari’ah (Islamic Law). This is because the Prophet (ﷺ) said, “The Muslims are bound by their conditions, except for conditions which make the unlawful things lawful or the lawful things forbidden.” [Al-Bukhari] 

Also, because ‘Umar رضي الله عنه set up a Waqf and stipulated certain conditions. If it had not been obligatory to adhere to the conditions, there would have been no point in stipulating them. If a person does not stipulate any condition, then the rich and poor, male and female, should be treated equally when given the benefits of the Waqf.

8- If a person sets up a Waqf for the benefit of his children, he must treat males and females equally, because he has included all of them in that, which implies that they will have an equal share. After his own children, the Waqf would pass to the children of his sons and not the children of his daughter. However, some scholars are of the opinion that his daughter’s children are included under the word, “children.”

9- A Waqf is among the contracts which become binding just by mere statement, and it is not permissible to annul or sell it. This is based on the Hadeeth in which the Prophet (ﷺ) said, “The original property should not be sold, given as a gift, or inherited.” [Al-Bukhari]

10- In the case that the benefits of a Waqf cease, such as the house being destroyed and it cannot be rebuilt, or an agricultural land is ruined and it cannot be restored and there is no fund from the Waqf to restore it, then it should be sold and the money spent on a similar thing.

E.g. the endowment is a land and it does not produce food anymore. You sell it and buy a similar land.

E.g. the rent of a house goes to the poor and the house becomes old.  You sell the house and buy a similar house to be rented, and its rent goes to the poor.

If the money you’ve earned was less and could not buy a similar land or house, then buy something smaller, but of similar nature, because it is closer to conforming to the wishes of the person who set up the endowment. The replacement becomes a Waqf as soon as it is bought.

11- If the endowment is set up to benefit specific people or a certain place and the yield is more than needed, you spend the excess of the yield on a similar project.

E.g. the fruit of a land goes to a mosque or a certain group of poor people. The excess will be spent on a similar mosque or a similar group of people. It is permissible to give the excess of a Waqf, which was set up to benefit a mosque, to the poor.

12- If one does not designate a specific person to be in charge of the endowment, or that person dies, then one of those who benefits from the endowment should be in charge of it. If the Waqf was not set up to benefit a particular person, the ruler should then take care of it, either in person or by designating a deputy to take care of it on his behalf.

The person who takes care of the Waqf should fear Allah and do a good job in taking care of the Waqf, because it is something that has been entrusted to him (i.e. an Amanah).

Sources:

•  الملحض الفقهي للفوزان – Summarized Fiqh of Fawzan
• الفقه الميسر – Al Fiqh al-Muyasser prepared by a group of scholars