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Background material for Year 3 Semester 2 Med PPSD session on Monday 23rd March 2009 by Professor Omar Hasan Kasule Sr.
DEFINITION
Waqf is continuous charity. It consists normally of fixed property whose income is used for a fixed purpose. The income is used but the endowed property is never sold or donated or inherited. The waqf may be for specified beneficiaries or may be left open. Waqf can be immovable property like real estate. It may be movable property. It could also be a service. Waqf may be endowed for a limited time.
RULINGS ABOUT WAQF
If the waqf is plants or trees, it ceases with the death of those trees and they are not replanted. It is permissible to make a mosque a waqf and this type of waqf is mustahabb. If one masjid cannot use all the income from its waqf, it is permissible to use the extra income for another masjid. If the waqf is on a masjid but the waaqif does not specify how it will be distributed, then it can be used for the imaam, the muaddhin, and the building. If the beneficiaries of a waqf are a group of people who die away, the waqf is returned to the waaqif or his relatives or to the Muslim Treasury or to the poor. If the waaqif does not specify the beneficiaries or if the documents are lost, the waqf is treated like that of beneficiaries who die off. If the waqf changes for example a farm becoming a factory, the waqf continues.
The waaqif in nominating beneficiaries must distinguish between a beneficiary as an individual and a beneficiary because of his attributes. For example the waqf may be for a specific imaam of a masjid or it may be for the position of imaam such that anybody who holds that position can be a beneficiary. Jurists have disagreements on whether a waqf that is no longer beneficial can be sold. A waqf can be changed from one form to another if there is a maslahat. The endowment may be conditioned on the death of the endower, ta’aliiq al waqf bi al mawt, in which case it is taken from one third of the property. It is not permissible to repossess an endowment if one has a need for it. It is not permissible to spend from the waqf to settle the debt of the waaqif after his death. Generally the waaqif should not benefit from the waqf except in public facilities such as mosques. In terminal illness, the inheritors cannot be beneficiaries of a waqf. It is permitted to apportion a waqf among beneficiaries like ½ or ¼. Making children as beneficiaries of a waqf for the sole purpose of preventing loss of property from the family has no basis in the Law. Rich offspring, dhuriyyat, cannot be beneficiaries of waqf but the poor among them can. However if children are made beneficiaries of waqf, the distribution among them is like that of inheritance.
ADMINISTRATION OF THE WAQF
The waaqif appoints the administrator of the waqf. If he does not the judge appoints one. If the conditions set by the waaqif are not fulfilled, the waqf is returned to him. The administrator is entitled to a salary. The text of the waaqif is like the text of the law and must be followed closely except if they stipulate something clearly illegal. If they differ from the Law they can be changed until they are in comformity with the Law. If the administrator of the waqf fails to fulfill the conditions set it is taken from him.
GIFTS, hibat
A gift is given during the life of the giver whereas a will is after his death. Sadaqat is better than a gift unless the gift is for a relative for purposes of silat al rahm. Gifts express mutual love. Gifts seeking praise are condemned. It is permissible to give a gift if that will stop dhulm. It is forbidden to ask for a dua in return for a gift. Gifts can be accepted and something is given in return. A gift should not be accepted if the giver expects help in reaching officials. A gift can be witnessed especially if future disputes are anticipated. It is an offense to ask for return of a gift. The gift becomes confirmed when the beneficiary takes possession. There is no harm in canceling a gift before the beneficiary takes possession. Repossession of a gift occurs when the reason for it is no longer valid. The recipient of a gift has the right to give it away without getting permission from the gift giver.
Gifts to officials are discouraged because they may encourage bribery and corruption. The ruler of Muslims can accept a gift from a mushrik. It is permissible to give a gift to an unknown person, al hibat li majhuul, who is specified afterwards. A child cannot make gifts even if the guardian consents. In the same way the safiih cannot make gifts. Children should be treated equally in giving gifts. According ti Imaam Ahmad equality among children is achieved if they are given gifts in proportion to their share of the inheritance. According to Imaam al Safe’I girls and boys may be given equal gifts. It is however allowed to give some children more gifts than others if all children agree to that. It is also permissible to base the amount of the gift on the differing needs of the children as long as this does not exceed what is considered customary. It is also permissible to refuse giving gifts to any child who is a sinner until he repents. The father is allowed to withdraw a gift if by that he wants to achieve equality among children. This could happen for example if a man gives a gift to one of the children and then immediately after that falls sick. He is then allowed to withdraw the gift in order to equalize among the children. He can also withdraw the gift for fear of exceeding one third. The beneficiary is also required to return the excessive gift.
Jurists have different opinions about a father who gives gifts to some children and dies before giving to others. Some jurists say that the children who did not receive should be given from the property of the deceased to achieve equality. Others say that the matter is left as is and the father has a sin. Anything that a father gives his daughter as he prepares her for marriage becomes her property when she moves to her husband’s house. Gifts given to a wife are not returnable if the marriage is nullified. A wife may absolve her husband of the obligation of mahr as a gift to him but this is not allowed in terminal illness because it may be a form of will and the Law prohibits any will that benefits an inheritor. A father is allowed to take from his son’s property without permission provided he uses it for his needs and does not give it to others as charity or as a gift and provided this does not cause financial harm to the son. This is based on the hadith of the prophet ‘anta wa maaluka li abiika’. The child is also obliged to serve his father and the father can forbid his sin from jihad because jihad would prevent the son from serving his father.