What is Waqf?

The original form of endowment, in both Islamic and common law countries, was similar to that of transferring a legal title of a property by its owner to a second party to administer it in order to deliver its benefit to a third party. In fact, in Islamic society, this kind of conveying ownership first started in approximately the seventh century.[1] Islamic scholars maintain that the first incident of giving away property as endowment occurred when Abu Talha yielded his farm to his companion Prophet Mohammad (peace be upon him) to be spent on his relatives in search of god’s pleasure, which is the main object in Islam.[2] The well-known Muslim jurist Al-Shafi’I stated that ‘there was no such passing up assets as endowment appeared before Islam’; therefore, no transactions such as waqf occurred in human history before Islam.[3] The Islamic version of trust arose as a way to ask for a reward from God; however, it was adopted in common law countries as a way for selective persons who were not allowed, by law, to have property to inherit it after the owner died.[4]

Nevertheless, the similar concept of trust is called ‘wakf’ or ‘waqf’ in Muslims’ books, and it is explained as ‘a person, with the intention of committing a pious deed, declares part of his or her property to be henceforth unalienable…and designates persons or public utilities as beneficiaries of its yields.’[5] Moreover, waqf has only two purposes: one, to be established for charity or, two, to be spent on relatives, such as the founder’s own family or their general relatives and their families.[6] In fact, waqf’s definition appears to have the same notion of trusts in common law, which ‘exist when the owner of a legal or equitable interest in property bound by an obligation…to hold that interest for the benefit of others, or for some object or purpose permitted by law.’[7]

However, trusts come in different shapes, and each one of these types has its purpose and terms. For instance, the founder of an express trust is required to satisfy the certainty of intention condition, unlike a constructive trust, which might obtain a court decision to occur without the intention of making trust. In fact, with new kinds of purposes, recent forms of trust have occurred in modern common law countries. For example, trusts are being used as pension plans that are created by funds provided by members and invested in many business fields.[8] On the other hand, waqf started, and remains, in Islamic law solely to be used for charitable purposes or to be spent on the settlor’s relatives, in giving alms in life or after his or her death.[9]

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[1] Abdulaziz Almohammad Alsalman, الأسئلة و الأجوبة الفقهية المقرونة بالأدلة الشرعية [The Jurisprudence’s Questions and Answers coupled with evidence from Shri’a] (published by philanthropists, 1993) 6, 368 .

[2] Ibid.

[3] Ibid.

[4] Stephen P. Heyneman (ed), Islam and Social Policy (Vanderbilt University Press, 2004) 22; Mohamad Ramjohn, Equity and Trusts (Routledge, 4^th ed, 2006) 181.

[5] Abdul Qadir, Wakf: Islamic Law of Charitable Trust (Global Vision Publishing Ho, 2004) 1.

[6] Abdelwahab Bouhdiba and Muhammad Ma’ruf Dawalibi (eds), The Different Aspects of Islamic Culture: The Individual and Society in Islam (UNESCO, 1998) 248.

[7] J D Heydon and M J Leeming, Jacobs’ Law of Trusts in Australia (LexisNexis Butterworths, 7^th ed, 2007) 1.

[8] Zvi Bodie, John B. Shoven and David A. Wise, Issues in Pension Economics (University of Chicago Press, 1987) 2.

[9] Bouhdiba and Dawalibi, above n 6.