A Waqf for Prayers
(al-Waqf `ala al-Salat)
The invalidity of a waqf created for the waqif's benefit reveals the invalidity of a large number of such waqfs in the villages of Jabal (Lebanon) which have been created by their waqifs to meet the expenses of the prayers to be offered posthumously on their behalf. This is so even if we accept the validity of a proxy reciting mustahabb salit on behalf of the dead—aside from its validity with respect to the Waajib sal~t—because it is in fact a waqf in one's own favor.
Doubts Concerning Waqf
The Imám; author of al-Mulhaqat observes: If a doubt arises as to which among two persons is the beneficiary, or which among two purposes is the intended object of the waqf, the solution is effected by drawing lots or by effectinga 'compulsory compromise. (al~ulh al qahri). 'Compulsory compromise' means distribution of the usufruct among the two parties or purposes.
If the purpose of the waqf is unknown and we do not know whether it is for a mosque or for the poor or for some other purpose, the waqf will be applied to charitable purposes.
If a doubt arises as to which of two properties is subject of a waqf (such as where we know the existence of a waqf, but are not certain whether it relates to the waqif's house or shop) resort will be made to drawing lots or to a compulsory compromise; i.e. a half of both the house and the shop will be treated as waqf.
The Trustor's Intention
If a waqf is a gift and a charity, the waqif is the giver of that gift and charity, and it is obvious that any sane and mature adult free of financial disability is free to grant from his property whatever he wishes to anyone in any manner he chooses. It is stated in the hadith . (people have been given full authority over their properties), and one of the Imáms (A) has said: . (Waqfs are to be managed in a manner provided by their waiqifs). Accordingly, the Jurists say: The conditions laid down by the waqif are like the words of the Lawgiver, and his pronouncements are like His pronouncements as regards the obligation of following them. Similar is the case of a nadhir, halif, musi and muqirr. 11 Consequently, if the intention of the waqif is known (that he had a specific intention and none else), it will be followed even if it is against the commonly understood meaning of his words. For instance, if we know that he intends by the words 'my brother' a particular friend of his, the waqf will be given to the friend, not to his brother. This is because usage is valid as a means of determining one's inten tion, and where we already know the intention, the usage loses its significance. But if we are unaware of the intention, the usage is fol lowed, and if there is no particular usage concerning it and nothing special is understood from the words of the waqif, the literal meaning will be resorted to, exactly like the procedure applied regarding the words of the G~ur'an and the Sunnah.
The Permissible Conditions
We had obsened that a waqif meeting all the conditions is entitled to lay down conditions of his choice. Here we mention the following exceptions. 1. A condition is binding and enforceable when it is contiguous to the creation of waqf and occurs along with it. Thus, if the waqif mentions it after completing the deed, it will be null and void, because the waqif has no authority over the waqf property after its ownership has passed on from him. 2. He may not lay down a condition which contradicts the nature of the contract (for instance, the condition that the ownership of the waqf property will be retained by him, so that he could pass it on as inheritance to his heirs, or sell it, or gift it or rent it or lend it if he so intends). The presence of such a condition implies that it is and is not a waqf at the same time. Because the presence of such a condi tion abrogates the deed creating the waqf, the waqf will be left without a deed, while the presumption is that it is not executed without a deed. In other words, such a waqif is similar to the seller who declares: "I sell this to you on the condition that its ownership will not be transferred to you and that its consideration will not be transferred to me." This is the reason why the Jurists have concurred that every condition contrary to the contract, apart from being void, also nullifies the contract. But the famous Jurist al-Sinhuri mentions in his compilation of select laws from Islamic fiqh that the H. anafis exclude mosques from the above rule. Hence a void condition does not nullify its waqf, while in waqfs other than for mosques such a condition is void and also nullifies the waqf (Madkur's al-Waqf). 3. The condition should not oppose any rule of the Islamic Shari'ah. For instance, it should not require the performance of a prohibited or the omission of an obligatory act. It is mentioned in the hadith:
He who lays down a condition contradicting the Book of God Almighty, it will neither be valid for him nor against him.
One of the Imáms (A) states:
Muslims are bound by the conditions that they lay down, except those which prohibit a halal or permit a haram.
Excepting the above-mentioned kind, all other conditions men tioned at the time of the deed that neither contradict its spirit nor any rule of the Book and the Sunnah are valid and their fulfilment is Waajib by consensus (for instance if the waqif lays down the condition that a home is to be built for the poor from the agricultural produce of the waqf or if it is to be spent on the scholars, etc.).Summarily, the wciqif, like anyone else, is required to base all his dispensations on the principles of logic and the Shari'ah, irrespective of whether they pertain to waqf or matters of diet, travel, etc. Therefore, if his act is in accordance with the Shari'ah and reason, it is Waajib to respect it, not otherwise.
Contract & Condition
There is no doubt that a void condition, whatever its form, does not require to be fulfilled. It is also evident that a void condition which is contrary to the spirit of a contract nullifies the contract itself. Hence there is consensus regarding its being void in itself and its nullifying effect extending beyond itself, without there being any difference between waqf and other forms of contract in this regard.
The schools differ regarding a condition which is contrary to the Book and the Sunnah without going against the spirit of the contract (for instance, when a person makes his house a waqf in favor of Zayd on condition that he perform haram acts in it or abstain from perform ing Waajib duties), as to whether the invalidity of this condition necessitates the annulment of the contract as well (so that the carrying out of the contract is not necessary, in the same way as fulfilment of the condition is not necessary), or if the invalidity would be limited to the condition.
According to the H. anafis, as mentioned by Abu Zuhrah in Kitab al-waqf, p. 162: The conditions which contradict the regulations of the Shari'ah are void, while the waqf is valid. It does not become void due to their invalidity, because a waqf is a charity and charities are not invalidated by void conditions.
The Imámís differ among themselves. Some among them obsene that the presence of a void condition does not necessitate the annulment of the contract while others consider that necessary. A third group abstains from expressing any view (al-Jawaahir and al 'Ansari's a~-Makasib).
Our view here is that the invalidity of a condition which contradicts the precepts of the Book and the Sunnah does in no manner entail the invalidity of the contract. The reason is that a contract possesses certain essentials (arkan) and conditions, such as, the offer, its acceptance, the contracting party's sanity, maturity, and ownership of the subject of transaction, and its transferability. When these aspects of the contract are fulfilled, the contract is undoubtedly valid. As to the presence of void conditions, which have no bearing, immediate or remote, on the essentials and conditions of the contract but exist only marginally, their invalidity does not extend to the contract. Even if it is presumed that the invalidity of a condition creates a discrepancy in the contract—such as an uncertainty resulting in risk in a transaction of sale—the contract will be void in such a situation as a result of the uncertainty, not because the condition is void. The author of al-Jawaahir also holds this opinion. With his singular acumen and precision, he observes: "The claim that an invalid condi tion if considered restrictive entails the invalidity of the contract and if considered hortative does not lead-to its invalidity, is sophistic and fruitless. "
Such a distinction is obviously sophistic and nonsensical, because in practice there is no recognizable difference between the two conditions, and it is evident that the regulations of the Shari'ah have been framed on the basis of the general level of understanding of the people and not on the basis of subtle logical distinctions.
We have mentioned that the Jurists divide the conditions into valid and invalid ones, and regard the fulfillment of the former as obligatory. They have also divided invalid conditions into those which contradict the spirit of the contract and those which do not, yet contradict the rules of the Shari'ah. They concur that the first kind is both invalid and invalidating, and differ concerning the second, some considering it as invalid without being invalidating, while others consider it both invalid and invalidating.
The Jurists then differ regarding many particular cases and issues as to whether they belong to the class of invalid conditions, and sup posing that they do, as to whether they are invalidating as well. Here we shall mention a few of such cases.