Waqf

A waqf (; ), also known as hubous () or "mortmain" property is an inalienable charitable endowment under Islamic law. It typically involves donating a building, plot of land or other assets for Muslim religious or charitable purposes with no intention of reclaiming the assets. A charitable trust may hold the donated assets. The person making such dedication is known as a "waqif" (a donor). In Ottoman Turkish law, and later under the British Mandate of Palestine, a "waqf" was defined as usufruct state land (or property) from which the state revenues are assured to pious foundations. Although the "waqf" system depended on several hadiths and presented 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 below).
Terminology.
In Sunni jurisprudence, "waqf", also spelled "wakf" (; plural , "awqāf"; ) is synonymous with "ḥabs" (, also called "ḥubs" or "ḥubus" and commonly rendered "habous" in French). "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; The word, also present in such French works, was used during the time of the Ottoman Empire, and is from the Turkish "vakıf".
Definition.
The term waqf literally means "confinement and prohibition" or causing a thing to stop or stand still.
Bahaeddin Yediyıldız defines the waqf as a system which comprises three elements: "hayrat", "akarat" and "waqf". Hayrat, the plural form of "hayr", 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 ("bedesten"s, "arasta"s, "han"s, etc.), land, baths; and waqf, in its narrow sense, is the institution(s) providing services as committed in the vakıf deed such as "madrasa"s, public kitchens ("imarets"), "karwansaray"s, mosques, libraries, etc.
Generally, the waqf must fulfill three primary constraints:
Origin in Islamic texts.
Although there is no direct Quranic injunction regarding the Waqf, their conception in Islamic society has been derived from a number of hadiths. It is said that during the time of the Prophet, after the Hijrah, the first waqf was composed of a grove of 600 date palms. The proceeds of this waqf were meant to feed Medina's poor.
In one tradition, it said that: "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.
In another hadith, the Prophet Muhammad said, "When a man dies, only three deeds will survive him: continuing alms, profitable knowledge and a child praying for him."
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:
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.
Women's Contribution to the Waqf System.
A widely unknown fact about the demographic of founders of Ottoman waqfs is that many of them were women; with the existence of their establishments having a crucial impact on their communities’ economic life. Out of 30,000 waqf certificates documented by the GDPFA (General Directorate of Pious Foundation in Ankara), over 2,300 of them were registered to institutions that belonged to women. And of the 491 public fountains in Istanbul that were constructed during the Ottoman period and survived until the 1930s, nearly 30% of them were registered under waqfs that belonged to women.
Property.
The property (called "al-mawqūf" or "al-muḥabbas") used to found a waqf must be objects of a valid contract. The objects should not themselves be "haram" (e.g. wine or pork). These objects should not already be in the public domain: 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:
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.
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.
Usually 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:
History and location.
The practices attributed to Muhammad have promoted the institution of waqf from the earliest part of Islamic history.
The 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 and concerns a multi-volume edition of the Qur'an currently 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.
Jerusalem.
In the 16th century, the Haseki Sultan charitable complex was founded by the wife of Suleyman the Magnificent and serviced 26 villages; the institution also included shops, a bazaar, two soap plants, 11 flour mills and two bathhouses located in Palestine and Lebanon. For several centuries, the income generated by these businesses contributed in the maintenance of a mosque, a soup kitchen, and two traveler and pilgrim inns.
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 the 14th-century work "Insha-i-Mahru" by Aynul Mulk Ibn Mahru. According to the book, Sultan Muizuddin Sam Ghaor 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.
As per the Wakf Act 1954 (later Wakf Act 1995) enacted by the 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", "anjuman"s and various religious and charitable institutions. A statutory body under Government of India, which also oversees State Wakf Boards. 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 land in India, and Rs. 60 billion book value.
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.
According to Hamas, all of historic Palestine is an Islamic waqf. This is, however, a myth.
Funding of schools and hospitals.
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 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.
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. Every "waqf" was required to have a "waqif" (founder), "mutawillis" (trustee), "qadi" (judge) and beneficiaries. 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"."
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", 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"."
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.