On the Waqf - and it is the Hubus
from al-Qawanin al-Fiqhiyyah
Ibn Juzayy al-Kalbi
translated by Abdassamad Clarke
Concerning it there are six issues:
First section on the judgement on making a hubus which is that it is permissible according to the two Imams and others and contrary to Abu Hanifah, but his pupil Abu Yusuf recanted that when Malik exchanged views with him and [Malik] proved his case with the Ahbas of the Messenger of Allah, may Allah bless him and grant him peace, and of the Companions and the Followers, may Allah be pleased with all of them. So the later Hanafis came to deny the Imam's prohibition of it and they would say, His madhhab is that it is permissible but that it is not obligatory.
Second section on its elements which are four:
the one who endows the hubus,
that which is made into a hubus,
the one for whom the hubus is dedicated,
and the form in which it is carried out.
As for the one who endows the hubus then he is like the giver of a gift (another section in fiqh). As for that which is made into a hubus, then it is permissible to make a hubus of property such as lands, houses, shops, gardens, mosques, wells, canals, graveyards, pathways, etc. It is not permitted to make a hubus of food because its benefit lies in its consumption. There are two differing narrations about [the permissibility of] making a hubus of goods, slaves and beasts [in general] since making a hubus of horses in the way of Allah is a well known matter. As for the one for whom the hubus is dedicated it is sound for it to be a person, or something other such as mosques and madrasahs, and it is sound that it be for the one who is alive and present and for the one not yet born, for someone specific and for someone unknown (possibly a category such as 'the poor'), for the Muslim and for the dhimmi (member of the people of the Book living under Islamic governance and paying the jizyah), for a near relative or for a non-relative.
Derivative rulings : on the requirements of the wordings by which the nature of those for whom the waqf is dedicated. As for the word 'child' or children', if he said, 'I have dedicated this hubus to my child (walad)' or 'to my children (awlad)', then it encompasses his own children, the male and female, and the children of the males since they inherit, and it does not encompass the children of the females contrary to the view of Abu 'Umar ibn 'Abdalbarr. If he said, 'I dedicate this hubus to my children and to their children,' then there is also disagreement as to whether the children of the daughters are covered. If he said, 'My children, male and female,' whether he named them or not and then later he said, 'and their descendants,' or 'their children' then in that case it covers the children of the daughters. As for the wording 'aqb ('children' also) its ruling is the same as the ruling of the word children (awlad) in everything which we have mentioned and similarly the word baneen (literally 'sons' but it may mean 'children') although it may particularly mean 'sons' unless he says 'the male and female of them'. As for the word dhuriyyah 'offspring' and nasl 'progeny', the children of the daughters enter into both of them according to the most sound view. As for the wording Aal and Ahl 'family' it covers the males of the children and the daughters, brothers, sisters, paternal uncles and aunts, and there is a disagreement as to whether maternal uncles and aunts are included. As to the wording qarabah 'near relatives' it is more general and compasses all kin both men and women, whether they are of the degrees which it is forbidden to marry or of the degrees that are eligible for marriage (cousins, etc.), according to the soundest view.
As to the form of dedicating the property it is with the word hubus, waqf and sadaqah, and every phrase which would require the same meaning, such as saying, 'It is sacrosanct (muharram), it may not be sold and may not be given away,' and actions such as the adhan for [calling] people for the prayer in a place which he built as a mosque. It is not stipulated that the one for whom the hubus is dedicated should accept it unless it is a specific person who is responsible for his own affairs.
Third section on its precondition which is possession, as we have mentioned in [the section] on gifts. If the one who dedicates the hubus dies or becomes sick or bankrupt before [the one to whom the hubus is dedicated] takes possession then the endowment of the hubus is invalidated. Similarly if he resides in a dwelling before the completion of a year or takes the revenues of a land for himself then the hubus is invalidated. It is permissible that someone else may take possession on behalf of an adult even though he is present, as distinct from the case of a gift. The father takes possession for his small son, and the legal guardian takes possession on behalf of his charge. The one responsible for the awqaf takes possession of that which has been dedicated as a hubus for the mosques and dwellings and the like of that. There must be clear supervision of taking possession if the one for whom the hubus is dedicated is in somewhere else than in the administrative district of the one who endows the hubus or if he is in his administrative district and the hubus is in a house of his dwelling or in which he has placed his goods for trade, then it is not sound unless he vacates the place and there is supervision [of that]. Whenever the one for whom the hubus is dedicated, or the one who has been given, contracts to rent out the property of that which has been made hubus or has been given as a gift or he alights there to live there, then that is taking possession.
Fourth section on the diversion of the hubus after the extinction of those for whom the hubus was dedicated. It is in three sections:
First, a hubus dedicated to specific people. If he mentions the terms sadaqah or sacrosanct ('muharram' as in his saying 'it is sacrosanct. It may not be sold or given away') it may never return to him (the one who dedicates the hubus). If he does not mention either of these two words, then when they (those for whom the hubus is dedicated) become extinct, then Malik has different statements. First of all he said, 'It returns to the one who dedicated it or to his heirs', then later he said, 'It does not return to him but rather to the nearest relatives to him'.
Second, a hubus dedicated to a restricted but unspecified group such as the children of so-and-so and their descendants.
Third, a hubus dedicated to an unrestricted and unspecified group such as the bereft, then it does not return to him ever by absolute unanimity, and it may return to his nearest relatives if he had not specified an alternative. If he had specified an alternative it mustn't go anywhere else.
Fifth section: there are three sections with respect to the sale of awqaf.
First, there is a consensus that it is fundamentally not permissible to sell mosques.
Second, properties may not be sold unless it be that they are hubus houses around a mosque, for then there is no harm that some of them should be bought in order to expand it (the mosque). Roadways are similar to mosques in that respect. It has been said that that applies to mosques in large cities and not to tribal mosques [in remote areas]. Rabee'ah permitted the sale of a hubus quarter [district] when it becomes ruinous in order to exchange it for another, contrary to Malik and his companions.
Third, Goods and beasts. Ibn al-Qasim that when their benefit has gone, such as horses which have become old, or clothes which have worn smooth to such an extent that there is no benefit to be had from either, it is permitted to sell them and to spend the price on their like. If their value does not reach to a complete [purchase of another horse or clothing] then it is made to be a portion of the like of it. Ibn al-Majishun, [however], said that fundamentally it may not be sold.
Sixth section the remaining rulings on the hubus, of which that if the one who endows the hubus stipulates anything it is obligatory to fulfil his stipulation. Supervision of the hubus belongs to the one whom the one who endowed it puts forward. If he puts no one forward, then the Qadi puts someone forward and the one who endows the hubus will have not [have a right to] look into it, and if he does so, the endowment is invalidated. Hubus residences (possibly residential quarters) are maintained by their revenues, and if there are none, then from the bait al-mal, and if there is nothing [in the bait al-mal] then they are abandoned until they fall into ruin. The one who endows them is not required to spend on them. The horse which has been endowed as a hubus is maintained from the bait al-mal, and if there is nothing [in the bait al-mal] then it is sold and with its price something is bought that doesn't require expenditure such as weapons. Ibn al-Majishun said that it is not permissible to sell that. It is not permitted to demolish a hubus building nor alter it, and if its roof beam becomes broken it is not permissible to sell it, rather it should be employed in the hubus, and similarly demolition. It has also been said that it should be sold. The hubus may not be exchanged even if that which surrounds it falls into ruin.