Rules of Waqf (Endowment)
2831. If a person makes something Waqf, it ceases to be his property, and neither he nor anybody else can either gift it or sell it to any person. Also, no one can inherit anything out of it. There is, however, no harm in selling it in certain circumstances, as mentioned in rules nos. 2193 and 2194.
2832. It is not necessary to utter the formal declaration of Waqf in Arabic. If, for example, a person says: I have Waqfed any house, it will be considered valid. In fact, Waqf is established by conduct as well. Therefore, if a person spreads a mat in a mosque with an intention of Waqf, or constructs a building having an appearance of a mosque, with an intention of giving it away as a mosque, the Waqf will be established.
2833. If one gives a property to Waqf, it should be a perpetual one, so if he says” “This property will remain Waqf for ten years and not later,” or he says: “This property will be Waqf for ten years and then it will not be Waqf for 5 years and after that it will be Waqf again,” it is void. Also, Waqf should start from the time of reciting the formula; so, if he says: “This property will be Waqf after my death,” it is void because it was not Waqf since the time of reciting the formula until his death, unless he makes a will for this purpose.
2834. As an obligatory precaution, in special Waqf, it is necessary that the beneficiary of Waqf or his/her guardian or Wakil, makes a formal acceptance; but in general Waqf like Waqf of mosque of Madressah (religious school), it is not necessary to make a formal acceptance.
2835. A private Waqf will be valid when the property which has been Waqfed is given away, at the disposal of beneficiaries of the first category, or their representative or guardian. And, if a person Waqfs something upon his minor children, it is not necessary to hand it over again.
2836. If a mosque is made Waqf, after the donor gives the permission to offer prayer in that, as soon as the first person offers prayer there, Waqf is in order; and as an obligatory precaution in public Waqf, such as Madressah and mosque, occupation of property is enough and if a person builds a mosque and gives it to the keeper or guardian of it, Waqf is realized. The same applies if one makes a piece of land Waqf of mosque and gives it to the trustee (Mutawalli).
2837. It is necessary that the person who makes a Waqf should be Baligh and sane, and should be doing so of his free will and Niyyat. Also, he should have the right, according to Shariah, of disposal and discretion over his property. Based on this, feeble-minded person who squanders his wealth and is therefore, debarred, or the person who is barred by a fully competent Mujtahid from control of his property, cannot make a valid Waqf.
2838. If some property is made Waqf for an unborn child, it is a matter of Ishkal for that Waqf is created for some persons who are present at that time, and also for the persons who will be born later, and the new comers will share with previous ones.
2839. If a person creates a Waqf for himself, for example, if he Waqfs a shop for himself so that its income may be spent for the construction of his tomb after his death, the Waqf is not in order. But, if he creates a Waqf for the poor and later on, he himself becomes poor, he can benefit from the accruals of that Waqf.
2840. If a person appoints a Mutawalli (trustee) of the property Waqfed by him, the trustee should act according to his instruction; but if he does not appoint a trustee and say, he has Waqfed the property for a particular group, like, for his children, the discretion rests with them, and if they are not Baligh, the discretion rests with their guardian. And the permission of the fully competent Mujtahid is not necessary for appropriating any benefit from the Waqf.
2841. If a person Waqfs a property, for example, for the poor, or for the Sayyids, or he Waqfs it for charitable purposes, and does not appoint the trustee for the Waqf, the discretion with regard to that Waqf rests with the Shia judge.
2842. If a person Waqfs a property for a particular group, like, his descendants, so that every generation should benefit from it successively, the trustee of the Waqf leases it out, and then dies, the lease will not become void, if the interests of Waqf and the next generation are considered. But, if the Waqf has no trustee, and one generation for whom the property has been Waqfed, leases it out and they die during the currency of the lease, if the interests of next generation and Waqf are considered, lease is not void.
2843. If the Waqfed property is ruined, its position as Waqf is not affected, except when the Waqf is of a special nature, and that special feature ceases to exist. For example, if a person endows a garden and the garden is ruined, the Waqf becomes void and the garden reverts to the heirs of the person.
2844. If one part of a property has been Waqfed and the other part is not, and the property is undivided, the fully competent Mujtahid, or the trustee of the Waqf, or the beneficiaries can divide the property and separate the Waqf part in consultation with the experts.
2845. If the trustee of Waqf acts dishonestly, and does not use its income for the special purpose, the Shia judge should assign and honest person to act with the dishonest trustee in order to restrain him from acting dishonestly. And if this is not possible, he can replace him with an honest trustee.
2846. A carpet which has been Waqfed in Husayniya cannot be used in mosque for offering prayers, even if the mosque may be near the Husayniyah, and if they do not know for sure that carpet is exclusively for Husayniyah or not, it is not correct to take it anywhere else, and properties even Mohr of Manaz of one mosque cannot be taken to the other.
2847. If a property is Waqfed for the maintenance of a mosque, and that mosque does not stand in need of repairs, and it is also not expected that it will need repairs for quite some time, and if it is not possible to collect and deposit the accrual till such time when it could be used for the repairs, then, as an obligatory precaution, the income should be used for the repairs of any other mosque.
2848. If a person Waqfs some property for the repairs of a mosque, and the Imam of the congregation, and the Mu’azzin, and if the quantity for each has been specified by the donor, it should be spent in the same manner. But if, it is not specified, the mosque should be repaired first, and if there is any balance, it should be distributed between the Imam of the congregation and Mu’azzin. But it is better that these two beneficiaries reach a compromise between them in respect of the distribution.