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CHAPTER THIRTY-SIX » Charitable Endowment (Waqf)
Ruling 2693. If a person endows some property, it no longer belongs to him. Neither he nor anyone else can gift or sell the item, nor can anyone inherit it. However, in some cases mentioned in Rulings 2104 and 2105, there is no problem in selling it.
Ruling 2694. It is not necessary for the formula (ṣīghah) of an endowment to be said in Arabic; rather, if a person says [in English], for example, ‘I endow this book to students of the religious sciences’, the endowment is valid (ṣaḥīḥ). In fact, an endowment can also be realised by an act. For example, an endowment is realised if a person places a haṣīr[1] in a mosque with the intention (qaṣd) of making an endowment to the mosque, or if he builds a building in the way that mosques are built with the intention of making a mosque. However, an endowment is not realised by only making an intention. Also, acceptance is not necessary in an endowment, be it a public charitable endowment (al‑waqf al‑ʿāmm) or a private charitable endowment (al‑waqf al‑khāṣṣ).[2] Furthermore, an intention to attain proximity to Allah (qaṣd al‑qurbah) is not necessary.
Ruling 2695. If a person specifies some property for an endowment but changes his mind or dies before he gives it as an endowment, then an endowment is not realised. The same applies if, in a private charitable endowment, the beneficiary of the endowment (al‑mawqūf ʿalayh) dies before he takes possession.
Ruling 2696. An endower (wāqif) of some property must endow it forever from the moment he makes the charitable endowment. Therefore, if, for example, he says, ‘This property is to be a charitable endowment after my death’, it is not valid because it is not an endowment from the moment he says the formula until his death. Similarly, if he says, ‘This is a charitable endowment for ten years but not after that’, or if he says, ‘This is a charitable endowment for ten years; after that, it will not be a charitable endowment for five years, and after that, it will be a charitable endowment again’, the endowment is not valid. However, in this case, if he makes the intention of a bequest (ḥubs),[3] then a bequest is realised.
Ruling 2697. A private charitable endowment is valid only if the endowed property (al‑ʿayn al‑mawqūfah) is placed at the disposal of the individuals to whom it has been endowed or their agent (wakīl) or guardian (walī); possession of it by the trustee (mutawallī) will not suffice. It is sufficient if those who are alive from the first generation of beneficiaries have disposal over it; and if some of them have disposal over it, then the endowment is valid only with respect to them. If a person makes an endowment to his offspring who are minors (ṣaghīrs), then as long as the actual property is in his possession, it is sufficient and the endowment is valid.
Ruling 2698. In the case of public charitable endowments, such as those made to schools, mosques, and suchlike, possession is not a requirement and the endowment is realised merely by making the endowment.
Ruling 2699. An endower must be of the age of legal responsibility (bāligh), sane (ʿāqil), have an intention to make the endowment, and make it of his own volition (ikhtiyār). He must also legally (sharʿan) have disposal over his own property. Therefore, if a person who is foolish with finances (safīh) – i.e. someone who spends his wealth in futile ways – endows something, it is not valid because he does not have right of disposal over his own property.
Ruling 2700. If some property is endowed to a child that is still in the womb of its mother, the validity of it is problematic (maḥall al‑ishkāl),[4] and it is necessary to observe precaution (iḥtiyāṭ) here. However, if some property is endowed for persons who are currently alive, and after them for those who will be born in the future, then the endowment is valid even if the latter are not in the wombs of their mothers at the time of making the endowment. For example, it is valid if a person endows something to his children, and after them to his grandchildren, and to each generation to use the endowment after the previous generation.
Ruling 2701. If a person endows something to himself – for example, he endows a shop to himself so that after his death the income from it would be spent on paying off his debts or hiring someone to perform his lapsed (qaḍāʾ) ritual acts of worship (ʿibādāt) – then such an endowment is not valid. However, if, for example, he endows a house to accommodate poor people (fuqarāʾ) and he himself becomes poor, he can reside in that house. But if he endows the property so that its rental income is to be distributed among the poor and he himself becomes poor, then for him to take from the rental income is problematic [i.e. based on obligatory precaution (al‑iḥtiyāṭ al‑wājib), he must not take from it].
Ruling 2702. If a person appoints a trustee for the property that he has endowed, the trustee must act according to the endowment. If a person does not appoint anyone, in the event that he has endowed the property to specific individuals, such as his children, the authority (ikhtiyār) to use the property lies with them. But if they are not bāligh, the authority lies with their guardian. Furthermore, it is not necessary to obtain permission from a fully qualified jurist (al‑ḥākim al‑sharʿī) to use the endowment. However, for matters pertaining to the interest of the endowment or the interest of future generations – such as making repairs to the endowed property and giving it on rent (ijārah) for the benefit of subsequent generations – the authority for it lies with a fully qualified jurist.
Ruling 2703. If a person endows some property to the poor or sādāt[5] or for its profits to be used for charitable causes, in the event that he does not appoint a trustee for the property, the authority over it lies with a fully qualified jurist.
Ruling 2704. If a person endows some property to specific individuals, such as his children, so that each generation uses it after the previous generation, in the event that the trustee of the endowment gives it on rent and dies after that, the rental agreement does not become void (bāṭil). However, if there is no trustee for the endowment and those from one of the generations for whom the property was endowed give it on rent and after that they die during the rental period, then in the event that those from the next generation do not endorse the rental agreement, it will become void. If the lessee of the rented property has paid the rent for the entire rental period, he can take back the amount he has paid from the time the agreement became void.
Ruling 2705. If the endowed property is ruined, it does not cease to be an endowment unless the endowment is conditional on a particular subject and that subject ceases to exist. For example, a person endows a garden on condition that it remains a garden; if the garden is ruined, the endowment becomes void and reverts to the endower’s heirs.
Ruling 2706. If part of a property has been endowed and part of it has not been endowed and the property has not been divided, the trustee of the endowment and the owner of the part that has not been endowed can separate the endowed part.
Ruling 2707. If the trustee of an endowment acts disloyally – for example, he does not spend the income from it in a specified way – then a fully qualified jurist can appoint a trustworthy individual (amīn) to join up with him to prevent him from acting disloyally. If this is not possible, a fully qualified jurist can depose him and appoint a trustworthy person as trustee in his place.
Ruling 2708. A rug that has been endowed to a ḥusayniyyah[6] cannot be taken to a mosque to be used for prayers (ṣalāh) even if the mosque is situated close to the ḥusayniyyah. However, if it is the property of the ḥusayniyyah, it can be taken to another place with the trustee’s consent.
Ruling 2709. If some property is endowed for repairing a mosque but the mosque does not need any repairs and neither is it expected that it will need some repair work in the not too distant future, and if it is not possible to collect the income from the property and keep it so that it can be spent on repairing the mosque later on, then in such a case, the obligatory precaution is that the income from the property must be spent on a cause that is close to what the endower had in mind, such as securing items that are required by the mosque or repairing another mosque.
Ruling 2710. If a person endows some property so that the income from it can be used to repair a mosque and be given to the imam of the congregation (jamāʿah) and to the person who says the call to prayer (adhān) at the mosque, in the event that the endower has specified an amount for each one of them, the income must be spent in that way. But if the endower has not specified the amounts, then the income must first be spent on repairing the mosque. If anything is left over, the trustee must divide it, as he sees fit, between the imam of the congregation and the person who says the adhān. However, it is better that these two people arrive at a settlement (ṣulḥ) on the division of the income.
Ruling 2694. It is not necessary for the formula (ṣīghah) of an endowment to be said in Arabic; rather, if a person says [in English], for example, ‘I endow this book to students of the religious sciences’, the endowment is valid (ṣaḥīḥ). In fact, an endowment can also be realised by an act. For example, an endowment is realised if a person places a haṣīr[1] in a mosque with the intention (qaṣd) of making an endowment to the mosque, or if he builds a building in the way that mosques are built with the intention of making a mosque. However, an endowment is not realised by only making an intention. Also, acceptance is not necessary in an endowment, be it a public charitable endowment (al‑waqf al‑ʿāmm) or a private charitable endowment (al‑waqf al‑khāṣṣ).[2] Furthermore, an intention to attain proximity to Allah (qaṣd al‑qurbah) is not necessary.
Ruling 2695. If a person specifies some property for an endowment but changes his mind or dies before he gives it as an endowment, then an endowment is not realised. The same applies if, in a private charitable endowment, the beneficiary of the endowment (al‑mawqūf ʿalayh) dies before he takes possession.
Ruling 2696. An endower (wāqif) of some property must endow it forever from the moment he makes the charitable endowment. Therefore, if, for example, he says, ‘This property is to be a charitable endowment after my death’, it is not valid because it is not an endowment from the moment he says the formula until his death. Similarly, if he says, ‘This is a charitable endowment for ten years but not after that’, or if he says, ‘This is a charitable endowment for ten years; after that, it will not be a charitable endowment for five years, and after that, it will be a charitable endowment again’, the endowment is not valid. However, in this case, if he makes the intention of a bequest (ḥubs),[3] then a bequest is realised.
Ruling 2697. A private charitable endowment is valid only if the endowed property (al‑ʿayn al‑mawqūfah) is placed at the disposal of the individuals to whom it has been endowed or their agent (wakīl) or guardian (walī); possession of it by the trustee (mutawallī) will not suffice. It is sufficient if those who are alive from the first generation of beneficiaries have disposal over it; and if some of them have disposal over it, then the endowment is valid only with respect to them. If a person makes an endowment to his offspring who are minors (ṣaghīrs), then as long as the actual property is in his possession, it is sufficient and the endowment is valid.
Ruling 2698. In the case of public charitable endowments, such as those made to schools, mosques, and suchlike, possession is not a requirement and the endowment is realised merely by making the endowment.
Ruling 2699. An endower must be of the age of legal responsibility (bāligh), sane (ʿāqil), have an intention to make the endowment, and make it of his own volition (ikhtiyār). He must also legally (sharʿan) have disposal over his own property. Therefore, if a person who is foolish with finances (safīh) – i.e. someone who spends his wealth in futile ways – endows something, it is not valid because he does not have right of disposal over his own property.
Ruling 2700. If some property is endowed to a child that is still in the womb of its mother, the validity of it is problematic (maḥall al‑ishkāl),[4] and it is necessary to observe precaution (iḥtiyāṭ) here. However, if some property is endowed for persons who are currently alive, and after them for those who will be born in the future, then the endowment is valid even if the latter are not in the wombs of their mothers at the time of making the endowment. For example, it is valid if a person endows something to his children, and after them to his grandchildren, and to each generation to use the endowment after the previous generation.
Ruling 2701. If a person endows something to himself – for example, he endows a shop to himself so that after his death the income from it would be spent on paying off his debts or hiring someone to perform his lapsed (qaḍāʾ) ritual acts of worship (ʿibādāt) – then such an endowment is not valid. However, if, for example, he endows a house to accommodate poor people (fuqarāʾ) and he himself becomes poor, he can reside in that house. But if he endows the property so that its rental income is to be distributed among the poor and he himself becomes poor, then for him to take from the rental income is problematic [i.e. based on obligatory precaution (al‑iḥtiyāṭ al‑wājib), he must not take from it].
Ruling 2702. If a person appoints a trustee for the property that he has endowed, the trustee must act according to the endowment. If a person does not appoint anyone, in the event that he has endowed the property to specific individuals, such as his children, the authority (ikhtiyār) to use the property lies with them. But if they are not bāligh, the authority lies with their guardian. Furthermore, it is not necessary to obtain permission from a fully qualified jurist (al‑ḥākim al‑sharʿī) to use the endowment. However, for matters pertaining to the interest of the endowment or the interest of future generations – such as making repairs to the endowed property and giving it on rent (ijārah) for the benefit of subsequent generations – the authority for it lies with a fully qualified jurist.
Ruling 2703. If a person endows some property to the poor or sādāt[5] or for its profits to be used for charitable causes, in the event that he does not appoint a trustee for the property, the authority over it lies with a fully qualified jurist.
Ruling 2704. If a person endows some property to specific individuals, such as his children, so that each generation uses it after the previous generation, in the event that the trustee of the endowment gives it on rent and dies after that, the rental agreement does not become void (bāṭil). However, if there is no trustee for the endowment and those from one of the generations for whom the property was endowed give it on rent and after that they die during the rental period, then in the event that those from the next generation do not endorse the rental agreement, it will become void. If the lessee of the rented property has paid the rent for the entire rental period, he can take back the amount he has paid from the time the agreement became void.
Ruling 2705. If the endowed property is ruined, it does not cease to be an endowment unless the endowment is conditional on a particular subject and that subject ceases to exist. For example, a person endows a garden on condition that it remains a garden; if the garden is ruined, the endowment becomes void and reverts to the endower’s heirs.
Ruling 2706. If part of a property has been endowed and part of it has not been endowed and the property has not been divided, the trustee of the endowment and the owner of the part that has not been endowed can separate the endowed part.
Ruling 2707. If the trustee of an endowment acts disloyally – for example, he does not spend the income from it in a specified way – then a fully qualified jurist can appoint a trustworthy individual (amīn) to join up with him to prevent him from acting disloyally. If this is not possible, a fully qualified jurist can depose him and appoint a trustworthy person as trustee in his place.
Ruling 2708. A rug that has been endowed to a ḥusayniyyah[6] cannot be taken to a mosque to be used for prayers (ṣalāh) even if the mosque is situated close to the ḥusayniyyah. However, if it is the property of the ḥusayniyyah, it can be taken to another place with the trustee’s consent.
Ruling 2709. If some property is endowed for repairing a mosque but the mosque does not need any repairs and neither is it expected that it will need some repair work in the not too distant future, and if it is not possible to collect the income from the property and keep it so that it can be spent on repairing the mosque later on, then in such a case, the obligatory precaution is that the income from the property must be spent on a cause that is close to what the endower had in mind, such as securing items that are required by the mosque or repairing another mosque.
Ruling 2710. If a person endows some property so that the income from it can be used to repair a mosque and be given to the imam of the congregation (jamāʿah) and to the person who says the call to prayer (adhān) at the mosque, in the event that the endower has specified an amount for each one of them, the income must be spent in that way. But if the endower has not specified the amounts, then the income must first be spent on repairing the mosque. If anything is left over, the trustee must divide it, as he sees fit, between the imam of the congregation and the person who says the adhān. However, it is better that these two people arrive at a settlement (ṣulḥ) on the division of the income.
[1] A ḥaṣīr is a mat that is made by plaiting or weaving straw, reed, or similar materials of plant origin.
[2] A ‘public’ charitable endowment is one that is made for a public interest – such as an endowment to a school – or to a general category of people, such as the poor. A ‘private’ charitable endowment, on the other hand, is one that is made to a particular individual or individuals, such as an endowment to one’s children.
[3] There are two main differences between a ‘bequest’ and a ‘charitable endowment’: firstly, in a bequest, the bequeathed property still belongs to the person who made the bequest, whereas in a charitable endowment, the endowed property no longer belongs to the person who made the endowment. Secondly, a bequest can be made for a temporary period, whereas a charitable endowment must be made forever.
[4] As mentioned in Ruling 6, the term ‘problematic’ (maḥall al‑ishkāl) amounts to saying the ruling is based on obligatory precaution.
[5] Sādāt (pl. of sayyid) are descendants of Hāshim, the great grandfather of Prophet Muḥammad (Ṣ).
[6] A ḥusayniyyah is a congregation hall used by Shia Muslims for religious ceremonies.