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Waqf
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{{about|the religious endowment|the Armenian village|Vakıflı}}{{EngvarB|date=January 2014}}{{Use dmy dates|date=January 2014}}{{Fiqh |economic |width=22.0em}}{{Taxation in the Ottoman Empire sidebar}}A waqf (; {{IPA-ar|ˈwɑqf|}}), also known as hubous (حُبوس)WEB,weblink تعريف و شرح و معنى حبوس بالعربي في معاجم اللغة العربية معجم المعاني الجامع، المعجم الوسيط ،اللغة العربية المعاصر ،الرائد ،لسان العرب ،القاموس المحيط - معجم عربي عربي صفحة 1, Team, Almaany, www.almaany.com, en, 2019-05-11, or mortmain property, is an inalienable charitable endowment under Islamic law, which typically involves donating a building, plot of land or other assets for Muslim religious or charitable purposes with no intention of reclaiming the assets.WEB,weblink What is Waqf - Awqaf SA, awqafsa.org.za, 29 March 2018, The donated assets may be held by a charitable trust. The person making such dedication is known as waqif, a donor. In Ottoman Turkish law, and later under the British Mandate of Palestine, the waqf was defined as usufruct State land (or property) of which the State revenues are assured to pious foundations.A Survey of Palestine (Prepared in December 1945 and January 1946 for the information of the Anglo-American Committee of Inquiry), chapter 8, section 1, British Mandate Government of Palestine: Jerusalem 1946, pp. 226–228 Although based on several hadiths and presenting elements similar to practices from pre-Islamic cultures, it seems that the specific full-fledged Islamic legal form of endowment called waqf dates from the 9th century AD (see paragraph "History and location").

Terminology

In Sunni jurisprudence, waqf, also spelled wakf (; plural , awqāf; Hisham Yaacob, 2006, Waqf Accounting in Malaysian State Islamic Religious Institutions: The Case of Federal Territory SIRC, unpublished Master dissertation, International Islamic University Malaysia.) is synonymous with ḥabs (, also called ḥubs or ḥubus and commonly rendered habous in French).ENCYCLOPEDIA, Peters, R., Abouseif, Doris Behrens, Powers, D.S., Carmona, A., Layish, A., Lambton, Ann K.S., Deguilhem, Randi, McChesney, R.D., Kozlowski, G.C., M.B. Hooker, etal, 2012, Waḳf, Encyclopaedia of Islam, 2nd, Brill, P. Bearman, Th. Bianquis, C.E. Bosworth, E. van Donzel, W.P. Heinrichs,weblink Habs and similar terms are used mainly by Maliki jurists. In Twelver Shiism, ḥabs is a particular type of waqf, in which the founder reserves the right to dispose of the waqf property. The person making the grant is called al-waqif (or al-muhabbis) while the endowed assets are called al-mawquf (or al-muhabbas).In older English-language law-related works in the late 19th/early 20th centuries, the word used for waqf was vakouf;JOURNAL,weblink The Ottoman Constitution, Promulgated the 7th Zilbridje, 1293 (11/23 December, 1876), 1908-10-01, The American Journal of International Law, Cambridge University Press, 2, 4 (Supplement: Official Documents (Oct., 1908)), 367-387, 2212668, 10.2307/2212668, - Translation inclosed in dispatch No. 113 in the MS. Records, U.S. Department of State, dated December 26, 1876 (PDF version) The word, also present in such French works, was used during the time of the Ottoman Empire, and is from the Turkish vakıf.BOOK, Strauss, Johann,weblink 2010, A Constitution for a Multilingual Empire: Translations of the Kanun-ı Esasi and Other Official Texts into Minority Languages, Herzog, Christoph, Malek Sharif, The First Ottoman Experiment in Democracy, Wurzburg, 21–51, (info page on book at Martin Luther University) Cited: p. 39 (PDF p. 41/338) "[...]but the term[...]is widely used in the legal literature at that time. The same applies to the term “fonds vakouf (art. 48; “pious foundations,” Turkish vakıf), which did not sound exotic either."

Definitions

{{Refimprove section|date=March 2011}}The term waqf literally means "confinement and prohibition" or causing a thing to stop or stand still.Hassan (1984) as cited in HS Nahar and H Yaacob, 2011, Accountability in the Sacred Context: The case of management, accounting and reporting of a Malaysian cash awqaf institution, Journal of Islamic Accounting and Business Research, Vol. 2, No. 2, pp. 87–113. The legal meaning of Waqf according to Imam Abu Hanifa, is the detention of a specific thing in the ownership of waqf and the devoting of its profit or products "in charity of poors or other good objects".Imam Abu Yusuf and Muhammad say: Waqf signifies the extinction of the waqif's ownership in the thing dedicated and detention of all the thing in the implied ownership of God, in such a manner that its profits may revert to or be applied "for the benefit of Mankind".{{Citation needed|date=August 2013}}Bahaeddin Yediyıldız defines the waqf as a system which comprises three elements: hayrat, akarat and waqf. Hayrat, the plural form ofhayr, means “goodnesses” and refers to the motivational factor behind vakıf organization;akarat refers to corpus and literally means ”real estates” implying revenue-generating sources, such as markets (bedestens, arastas, hans, etc.), land, baths; and waqf, in its narrow sense, is the institution(s) providing services as committed in the vakıf deed such as madrasas, public kitchens (imarets), karwansarays, mosques, libraries, etc.JOURNAL,weblink The legacy of vakıf institutions and the management of social policy in Turkey, Deligöz, Halil, 2014, Administrative Culture, 15 September 2015,

Islamic texts

There is no direct injunction of the Qur'an regarding Waqf, which is derived from a number of hadiths (traditions of Muhammad). One says, "Ibn Umar reported, Umar Ibn Al-Khattab got land in Khaybar, so he came to the prophet Muhammad and asked him to advise him about it. The Prophet said, 'If you like, make the property inalienable and give the profit from it to charity.'" It goes on to say that Umar gave it away as alms, that the land itself would not be sold, inherited or donated. He gave it away for the poor, the relatives, the slaves, the jihad, the travelers and the guests. And it will not be held against him who administers it if he consumes some of its yield in an appropriate manner or feeds a friend who does not enrich himself by means of it.Ibn Ḥad̲j̲ar al-ʿAsḳalānī , Bulūg̲h̲ al-marām, Cairo n.d., no. 784. Quoted in Waḳf, Encyclopaedia of Islam.In another hadith, Muhammad said, "When a man dies, only three deeds will survive him: continuing alms, profitable knowledge and a child praying for him."Ibn Ḥad̲j̲ar al-ʿAsḳalānī , Bulūg̲h̲ al-marām, Cairo n.d., no. 783. Quoted in Waḳf, Encyclopaedia of Islam.{{Verify source|date=October 2016}}

Life cycle

Founding

Islamic law puts several legal conditions on the process of establishing a waqf.

Founder

A waqf is a contract, therefore the founder (called al-wāqif or al-muḥabbis in Arabic) must be of the capacity to enter into a contract. For this the founder must:
  • be an adult
  • be sound of mind
  • capable of handling financial affairs
  • not under interdiction for bankruptcy
Although waqf is an Islamic institution, being a Muslim is not required to establish a waqf, and dhimmis may establish a waqf. Finally if a person is fatally ill, the waqf is subject to the same restrictions as a will in Islam.

Property

The property (called al-mawqūf or al-muḥabbas) used to found a waqf must be objects of a valid contract. The object should not be illegal in Islam (e.g. wine or pork). Finally these objects should not already be in the public domain. Thus, public property cannot be used to establish a waqf. The founder cannot also have pledged the property previously to someone else. These conditions are generally true for contracts in Islam.The property dedicated to waqf is generally immovable, such as estate. All movable goods can also form waqf, according to most Islamic jurists. The Hanafis, however, also allow most movable goods to be dedicated to a waqf with some restrictions. Some jurists have argued that even gold and silver (or other currency) can be designated as waqf.

Beneficiaries

The beneficiaries of the waqf can be persons and public utilities. The founder can specify which persons are eligible for benefit (such the founder's family, entire community, only the poor, travelers). Public utilities such as mosques, schools, bridges, graveyards and drinking fountains can be the beneficiaries of a waqf. Modern legislation divides the waqf as "charitable causes", in which the beneficiaries are the public or the poor) and "family" waqf, in which the founder makes the beneficiaries his relatives. There can also be multiple beneficiaries. For example, the founder may stipulate that half the proceeds go to his family, while the other half go to the poor.Valid beneficiaries must satisfy the following conditions:
  • They must be identifiable. At least some of the beneficiaries must also exist at the time of the founding of the waqf. The MālikÄ«s, however, hold that a waqf may exist for some time without beneficiaries, whence the proceeds accumulate are given to beneficiaries once they come into existence. An example of a non-existent beneficiary is an unborn child.
  • The beneficiaries must not be at war with the Muslims. Scholars stress that non-Muslim citizens of the Islamic state (dhimmi) can definitely be beneficiaries.
  • The beneficiaries may not use the waqf for a purpose in contradiction of Islamic principles.
There is dispute over whether the founder himself can reserve exclusive rights to use waqf. Most scholars agree that once the waqf is founded, it can't be taken back.The Ḥanafīs hold that the list of beneficiaries include a perpetual element; the waqf must specify its beneficiaries in case.Waḳf, Encyclopaedia of Islam

Declaration of founding

The declaration of founding is usually a written document, accompanied by a verbal declaration, though neither are required by most scholars. Whatever the declaration, most scholars (those of the Hanafi, Shafi'i, some of the Hanbali and the Imami Shi'a schools) hold that it is not binding and irrevocable until actually delivered to the beneficiaries or put in their use. Once in their use, however, the waqf becomes an institution in its own right.

Administration

File:Waqfnameh.JPG|thumb|Waqf Writing Room in Mevlana MuseumMevlana MuseumUsually a waqf has a range of beneficiaries. Thus, the founder makes arrangements beforehand by appointing an administrator (called nāẓir or mutawallī or ḳayyim) and lays down the rules for appointing successive administrators. The founder may himself choose to administer the waqf during his lifetime. In some cases, however, the number of beneficiaries are quite limited. Thus, there is no need for an administrator, and the beneficiaries themselves can take care of the waqf.The administrator, like other persons of responsibility under Islamic law, must have capacity to act and contract. In addition, trustworthiness and administration skills are required. Some scholars require that the administrator of this Islamic religious institution be a Muslim, though the Hanafis drop this requirement.

Extinction

Waqf is intended to be perpetual and last forever. Nevertheless, Islamic law envisages conditions under which the waqf may be terminated:
  • If the goods of the waqf are destroyed or damaged. Scholars interpret this as the case where goods are no longer used in the manner intended by the founder. The remains of the goods are to revert to the founder or his/her heirs. Other scholars, however, hold that all possibilities must be examined to see if the goods of the waqf can be used at all, exhausting all methods of exploitation before the termination. Thus, land, according to such jurists, can never become extinguished.
  • A waḳf can be declared null and void by the ḳāḍī, or religious judge, if its formation includes committing acts otherwise illegal in Islam, or it does not satisfy the conditions of validity, or if it is against the notion of philanthropy. Since waqf is an Islamic institution it becomes void if the founder converts to another religion.{{citation needed|date=May 2015}}
  • According to the MālikÄ« school of thought, the termination of the waqf may be specified in its founding declaration. As the waqf would expire whenever its termination conditions are fulfilled (e.g. the last beneficiary). The waqf property then returns to the founder, his/her heirs, or whoever is to receive it.

History and location

(File:Madina trip 169.jpg|thumb|Uthman waqf (Medina))The practices attributed to Muhammad have promoted the institution of waqf from the earliest part of Islamic history.Sait, 2006, p.149The two oldest known waqfiya (deed) documents are from the 9th century, while a third one dates from the early 10th century, all three within the Abbasid Period. The oldest dated waqfiya goes back to 876 CE, concerns a multi-volume Qur'an edition and is held by the Turkish and Islamic Arts Museum in Istanbul. A possibly older waqfiya is a papyrus held by the Louvre Museum in Paris, with no written date but considered to be from the mid-9th century. The next oldest document is a marble tablet whose inscription bears the Islamic date equivalent to 913 CE and states the waqf status of an inn, but is in itself not the original deed; it is held at the Eretz Israel Museum in Tel Aviv.BOOK, Gilbert Paul Verbit, 2002, The Origins of the Trust, Xlibris Corporation, 141–142, 9781401031534, {{Self-published inline|certain=yes|date=December 2017}}

Egypt

The earliest pious foundations in Egypt were charitable gifts, and not in the form of a waqf. The first mosque built by 'Amr ibn al-'As is an example of this: the land was donated by Qaysaba bin Kulthum, and the mosque's expenses were then paid by the Bayt al-mal. The earliest known waqf, founded by financial official Abū Bakr Muḥammad bin Ali al-Madhara'i in 919 (during the Abbasid period), is a pond called Birkat Ḥabash together with its surrounding orchards, whose revenue was to be used to operate a hydraulic complex and feed the poor.

India

Early references to Wakf in India, can be found in 14th century CE work, Insha-i-Mahru by Aynul Mulk Ibn Mahru. According to the book, Sultan Muizuddin Sam Ghaor (f. 1195–95 A.D.) dedicated two villages in favor of Jama Masjid, Multan, and, handed its administration to the Shaikhul Islam (highest ecclesiastical officer of the Empire). In the coming years, several more wakfs were created, as the Delhi Sultanate flourished.BOOK, Mahru, Ainud Din, Insha-i Mahru, Lahore, 1965, 1965, Shaikh Abdur Rashid (ed.), Lahore, 37–39, As per Wakf Act 1954 (later Wakf Act 1995) enacted by Government of India, Wakfs are categorized as (a) Wakf by user such as Graveyards, Musafir Khanas (Sarai) and Chowltries etc., (b) Wakf under Mashrutul-khidmat (Service Inam) such as Khazi service, Nirkhi service, Pesh Imam service and Khateeb service etc., and (c) Wakf Alal-aulad is dedicated by the Donor (Wakif) for the benefit of their kith and kin and for any purpose recognised by Muslim law as pious, religious or charitable. After the enactment Wakf Act 1954, the Union government directed to all the states governments to implement the Act for administering the wakf institutions like mosques, dargah, ashurkhanas, graveyards, takhiyas, iddgahs, imambara, anjumans and various religious and charitable institutions.al Wakf Council, India {{webarchive|url=https://web.archive.org/web/20110622015150weblink |date=22 June 2011 }} A statutory body under Government of India, which also oversees State Wakf Boards.Subjects allocated {{webarchive|url=https://web.archive.org/web/20100924233558weblink |date=24 September 2010 }} Ministry of Minority Affairs website. In turn the State Wakf Boards work towards management, regulation and protect the Wakf properties by constituting District Wakf Committees, Mandal Wakf Committees and Committees for the individual Wakf Institutions. As per the report of Sachar Committee (2006) there are about 500,000 registered Wakfs with {{convert|600000|acre|km2}} land in India, and Rs. 60 billion book value.Community on the marginsWakf Central Wakf Council, India website.

Other

The waqf institutions were not popular in all parts of the Muslim world. In West Africa, very few examples of the institution can be found, and were usually limited to the area around Timbuktu and Djenné in Massina Empire. Instead, Islamic west African societies placed a much greater emphasis on non-permanent acts of charity. According to expert Illife, this can be explained by West Africa's tradition of "personal largesse." The imam would make himself the collector and distributor of charity, thus building his personal prestige.Feierman, 1998, p. 19According to Hamas, all of historic Palestine is an Islamic waqf, which translates as a "prohibition from surrendering or sharing".Max Abrahms, Why Terrorism Does Not Work, International Security, Vol. 31, No. 2 (Fall 2006), pg. 74

Funding of schools and hospitals

(File:Haseki-Huerrem-Sultan-waqf Jerusalem.png|thumb|150px|An Old Waqf Document)After the Islamic waqf law and madrassah foundations were firmly established by the 10th century, the number of Bimaristan hospitals multiplied throughout Islamic lands. By the 11th century, many Islamic cities had several hospitals. The waqf trust institutions funded the hospitals for various expenses, including the wages of doctors, ophthalmologists, surgeons, chemists, pharmacists, domestics and all other staff, the purchase of foods and (wikt:medicine|medicines); hospital equipment such as beds, mattresses, bowls and perfumes; and repairs to buildings. The waqf trusts also funded medical schools, and their revenues covered various expenses such as their maintenance and the payment of teachers and students.ENCYCLOPEDIA, Micheau, Francoise, The Scientific Institutions in the Medieval Near East, 999–1001, Encyclopedia of the History of Arabic Science, Rashed, Roshdi, Morelon, Régis, 1996, Routledge, 978-0-415-02063-3,

Comparisons with trust law

The waqf in Islamic law, which developed in the medieval Islamic world from the 7th to 9th centuries, bears a notable resemblance to the English trust law.{{Harv|Gaudiosi|1988}} Every waqf was required to have a waqif (founder), mutawillis (trustee), qadi (judge) and beneficiaries.{{Harv|Gaudiosi|1988|pp=1237–40}} Under both a waqf and a trust, "property is reserved, and its usufruct appropriated, for the benefit of specific individuals, or for a general charitable purpose; the corpus becomes inalienable; estates for life in favor of successive beneficiaries can be created" and "without regard to the law of inheritance or the rights of the heirs; and continuity is secured by the successive appointment of trustees or mutawillis."{{Harv|Gaudiosi|1988|p=1246}}The only significant distinction between the Islamic waqf and English trust was "the express or implied reversion of the waqf to charitable purposes when its specific object has ceased to exist",{{Harv|Gaudiosi|1988|pp=1246–7}} though this difference only applied to the waqf ahli (Islamic family trust) rather than the waqf khairi (devoted to a charitable purpose from its inception). Another difference was the English vesting of "legal estate" over the trust property in the trustee, though the "trustee was still bound to administer that property for the benefit of the beneficiaries." In this sense, the "role of the English trustee therefore does not differ significantly from that of the mutawalli."{{Harv|Gaudiosi|1988|p=1247}}Personal trust law developed in England at the time of the Crusades, during the 12th and 13th centuries. The Court of Chancery, under the principles of equity, enforced the rights of absentee Crusaders who had made temporary assignments of their lands to caretakers. It has been speculated that this development may have been influenced by the waqf institutions in the Middle East.{{Harv|Hudson|2003|p=32}}{{Harv|Gaudiosi|1988|pp=1244–5}}

See also



Agencies

Notes

{{reflist|30em}}

References

  • {{Citation


| last = Arjomand
| first = Said Amir
| last2 = Feierman
| first2 = Steven
| last4 = Katz
| first4 = Stanley Nider
| last5 = Queen
| first5 = Edward L.
| last3 = Ilchman
| first3 = Warren Frederick
| title = Philanthropy in the World's Traditions
| publisher = Indiana University Press
| year = 1998
| isbn = 978-0-253-33392-6}}
  • {{Citation


|last=Gaudiosi
|first=Monica M.
|title=The Influence of the Islamic Law of Waqf on the Development of the Trust in England: The Case of Merton College
|journal=University of Pennsylvania Law Review
|volume=136
|issue=4
|date=April 1988
|pages=1231–1261
|doi=10.2307/3312162
|jstor=3312162
|url=https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=3909&context=penn_law_review
}}
  • {{Citation


|last=Hudson
|first=A.
|title=Equity and Trusts
|year=2003
|edition=3rd
|publisher=Cavendish Publishing
|location=London
|isbn=978-1-85941-729-4
}}
  • {hide}Citation


|last1=Morelon
|first1=Régis
|last2=Rashed
|first2=Roshdi
|year=1996
|title=Encyclopedia of the History of Arabic Science
|volume=3
|publisher=Routledge
|isbn=978-0-415-12410-2
|title-link=Encyclopedia of the History of Arabic Science
{edih}

Further reading

  • Real property, mortgage and wakf according to Ottoman law, by D. Gatteschi. Pub. Wyman & Sons, 1884.
  • Waqf in Central Asia: four hundred years in the history of a Muslim shrine, 1480–1889, by R. D. McChesney. Princeton University Press, 1991. {{ISBN|069105584X}}.
  • Wakf administration in India: a socio-legal study, by Khalid Rashid. Vikas Pub., 1978. {{ISBN|0-7069-0690-X}}.

External links

{{commons category|Waqf}} {{Authority control}}

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