Waqf and Its Essential Elements
As many people are aware, waqf is regarded as one of the most virtuous and rewarding acts recognized in Islamic jurisprudence and tradition.
Waqf is also considered a fundamental economic structure of the Islamic world, through which donors allocate property for charitable and public benefit.
The literal meaning of waqf includes remaining stationary, standing still, or detaining. In its juristic meaning, waqf refers to the detention of property and the prevention of its transfer to others through means such as sale or donation.
Under Article 55 of the Iranian Civil Code, waqf is defined as the detention of the corpus of property and the dedication of its benefits to charitable purposes.
Detention of the corpus means removing property from the donor’s ownership and preventing its transfer.
The allocation of the benefits of the property to God or to a purpose designated by the donor is referred to as dedication. Accordingly, the principal asset remains preserved while its benefits continue to be used for charitable objectives.
Conditions for the Validity of Waqf and Its Legal Requirements
The Essential Elements of Waqf
Waqf is a contract and, like other contracts, it consists of specific essential elements. The parties to this contract are the donor and the beneficiary. For a waqf to be validly established, each of its elements must satisfy the relevant legal and religious conditions. These requirements are collectively referred to as the conditions for the validity of waqf. The essential elements are as follows:
- The donor.
- The beneficiary.
- The endowed property.
The Donor
The donor is the person who transfers property for charitable or benevolent purposes. The donor must possess legal and religious capacity to enter into the contract. Accordingly, the donor must be of sound mind, of legal age, and acting voluntarily, with the legal capacity to dispose of their property. Individuals who are legally prohibited from managing their property are not permitted to create a waqf.
There is no requirement that the donor be Muslim. Therefore, a waqf established by a non-Muslim is legally valid. Ownership of the property is a fundamental condition for the validity of a waqf. The donor must possess legal capacity to own property, which includes maturity, sanity, intention, and consent.
The Beneficiary
The beneficiary is the second essential element of the waqf contract. The beneficiary refers to the person or persons in whose favor the property is endowed and who are entitled to benefit from it.
Depending on whether the beneficiary is a specific individual or a public entity, a waqf may be classified as public or private. In all cases, the beneficiary must meet the following conditions:
- The existence of the Beneficiary Waqf is invalid if it is not established for the benefit of any person or entity. However, a waqf in favor of a person who will come into existence in the future may be valid. For example, a waqf in favor of a fetus, provided the child is born alive, is valid.
- Definiteness of the Beneficiary: The beneficiary must be clearly identified in the waqf contract. This requires specifying the beneficiary’s identity, name, or distinguishing characteristics.
- Legal Capacity to Benefit: The beneficiary must have the legal and rational capacity to own and enjoy the benefits derived from the endowed property.
The Endowed Property and Its Conditions
The property that the donor dedicates constitutes the endowed property. For the waqf contract to be valid, the endowed property must meet the following conditions:
- Detention of the Corpus: Detention of the corpus means that the donor loses the right to sell, transfer, or dispose of the endowed property in any manner inconsistent with the purpose of waqf.
- Dedication of the Benefits: The donor’s intent is essential. The waqf must be established for charitable purposes and with the intention of seeking spiritual closeness to God.
- Capability of Permanence: Pursuant to Article 58 of the Civil Code, the endowed property, whether movable or immovable, must have enduring existence to allow for long-term use. For example, fruit itself cannot be endowed, but a fruit-bearing tree may be endowed.
- Delivery and Possession: Delivery and possession of the endowed property by the beneficiary is another condition for the validity of the waqf. This means that the property must be placed under the beneficiary’s control and possession for the waqf to be completed.
- Visibility and Tangibility: The endowed property must be tangible and identifiable. Its physical existence and visibility are required for the waqf to be valid.
Frequently Asked Questions About Waqf and Its Essential Elements
Waqf is a virtuous Islamic institution that entails the holding of property for charitable purposes. Under Article 55 of the Iranian Civil Code, the corpus of the property is preserved. At the same time, its benefits are dedicated to the purpose designated by the donor.
A waqf contract consists of three essential elements: the donor, the beneficiary, and the endowed property. Compliance with the legal and religious conditions of each element is required for validity.
The donor must be sane, of legal age, acting voluntarily, and the lawful owner of the property. The donor need not be Muslim for the waqf to be valid.
The beneficiary is the person or entity entitled to benefit from the waqf. The beneficiary must be identifiable, legally capable of benefiting, and either existing or expected to exist in the future under valid conditions.
The endowed property is the asset dedicated by the donor. It must be capable of permanence, subject to detention of the corpus, dedicated for charitable benefit, delivered to the beneficiary, and tangible.
Detention of the corpus means the property cannot be sold or transferred. In contrast, dedication of benefits means that the income or use of the property must be applied to charitable purposes in accordance with the donor’s intention.
Yes. Both movable and immovable property may be endowed, provided that the property has enduring existence and permits long-term use.
Delivery and possession ensure that the endowed property comes under the beneficiary's control, which is necessary for the waqf contract to become legally effective.
The property must have physical existence and be identifiable to ensure the validity of the waqf and the proper transfer of benefits to the beneficiary. What is a waqf, and what does it mean?
What are the essential elements of a waqf contract?
What qualifications must the donor possess?
Who is the beneficiary, and what conditions apply?
What is the endowed property and what conditions must it meet?
What is meant by detention of the corpus and dedication of benefits?
Can waqf include movable and immovable property?
Why is delivery and possession important in waqf?
Why must the endowed property be tangible and visible?
