The Ten Conditions of Waqf
It is appropriate to identify the powers, which the founders reserve for themselves during the establishment of their waqfs. Put differently, when endowing their properties and transferring the ownership from their own possession to that of God, the founders had to follow a strict procedure but they were permitted to retain certain powers. These powers are to be found in almost all the endowment deeds and have been called the ten conditions by the late Hanafi jurists. They are traditionally expressed as five twin conditions, which negate each other:
Expand-Reduce (teksîr-taklîl): The founder can expand the share of a beneficiary from the usufruct of the endowment, or can reduce it. Normally, the founder would be allowed to make such changes only once, unless he has stipulated in the endowment deed that he wishes to enjoy the right to expand or reduce for as long as he lives.
Enter-Exit (idhal-ihrac): The founder is empowered to make a person beneficiary even if he would not be considered one under normal circumstances (idhal). Conversely, the founder also has the power to deprive a beneficiary of his normal privilege. The Hanafis consider the idhal-ihrac as the absolute prerogative of the founder, while the Shafi’is and the Hanbalis are of the opinion that this is not an absolute but a limited one.
Pay-Freeze (I’tâ-Hirman): The founder may assign priority to the regular and uninterrupted payment of one beneficiary (i’tâ) and conversely, postpone the payment to others (hirman). This flexibility, which is granted not only to the founder but also to the trustee, allows a waqf to manage its budget according to a list of priorities determined by its founder. The condition assumes particular importance for those waqfs, which have a multitude of beneficiaries.
Changing Conditions-Purpose (ta yir-tebdil): The founder enjoys the right to change the conditions stipulated in the waqf deed (ta yir). He or she also retains the power to change the original purpose of the waqf, like converting a charitable waqf into a family waqf or vice versa.3
Sell- Exchange (ibdal- istibdal): The founder may permit himself to sell the corpus of the waqf for cash (ibdal), or exchange it for another property (istibdal). In historical documents, istibdal, is more often used and usually pertains to both sale and exchange of the corpus.
On point 4, a real case from Ottoman Egypt may illustrate the point: Iskender Pasha who governed Egypt from 1556 to 1559 had a foundation which was a religious complex. Whatever remained of the waqf revenues after the obligations of the endowment were fulfilled reverted to the founder during his lifetime. After his death, 2/3 of the surplus revenues were to be added to the foundation, and 1/3 would go to the founder’s heirs or, if he had none, to the foundation.This stipulation was later changed to give the heirs 2/3 instead of 1/3, thereby decreasing the charitable portion of the waqf (Behrens-Abouseif, 1994: 195).
Point 5 is an important power that the founder can bestow upon himself. The importance of istibdal lies in the fact that it embodies certain dynamism. By allowing the founder to sell the waqf property the system is made responsive to market conditions. Thus, if a waqf land which happens to be originally at the outskirts of a town ends up being in the middle of it due to urban expansion and its value skyrockets as a result, the founder is enabled to exchange the waqf land for another one, and in the process, can either expand the waqf land, again, at the outskirts by purchasing much more land or enrich his waqf with cash.
Furthermore, istibdal assumes great importance particularly for those waqfs whose corpus is constituted of movables. Such waqfs achieve perpetuity, a conditio sine qua non, often by applying istibdal. Indeed, if we consider a cash waqf i.e., where the original endowment was in cash, and assume further that the government is planning to change the currency of the country or debase it, istibdal under such conditions, becomes a vitally important instrument to assure the perpetuity of the waqf.
It goes without saying that while certain dynamism is indeed embodied in istibdal, this rule also embodies great potential for misuse. So much so that this instrument essential for the survival of the institution of waqfs has been used by its opponents to destroy it (Akgündüz, 1988: 291). The details of this phenomenon will be presented below. Meanwhile, we may note that wherever applied, this instrument has fuelled passions. This is understandable, for istibdal allows the sale of a waqf property, which is supposed to belong to God and be perpetual. Behrens-Abouseif has even argued that the Ottoman occupation of Egypt was prompted by an illegal istibdal procedure, which attempted to sell the Al-Azhar complex (1994: 146-147).
This brings us to the question of under what conditions istibdal would be legal. The answer is complicated by the fact that the four major schools of Sunni Islam do not agree on this problem. The Malikis, for instance, strictly prohibit istibdal in real estate waqfs with very few exceptions. But the Malikis are considerably less strict concerning the istibdal of the waqf of movables. The only condition they attach to such istibdal is that the movable corpus of the waqf should have been reduced to such a state that it has become impossible to fulfil the original purpose of the waqf because it is not generating sufficient returns.
The Shafi’is are also against istibdal, which in their opinion can be used as an instrument to destroy waqf properties. They even prohibit the sale of a totally destroyed mosque on the grounds that it may be restored some day. Thus, the Shafi’i position is even more stringent than that of the Malikis. In view of this, Behrens-Abouseif’s above-mentioned argument that the attempted sale of the Al-Azhar had prompted the Ottoman Sultan to occupy Egypt, which in his opinion had become totally corrupt, can be understood better. For, Shafi’i law was the prevailing law in pre-Ottoman Egypt and selling any waqf property, let alone the famous Al-Azhar, should have been strictly prohibited.
The irony of all this was that the Ottoman Sultan belonged to the Hanafi School, which had the most liberal perspective on istibdal. The Hanafi position on istibdal has been summarised as follows: if the founder of the waqf has not made any stipulation in the deed about the sale or exchange of the waqf’s property, then an istibdal transaction would not be permitted. But if the waqf’s property is in such a poor state that it does not generate any revenue or the revenue that it generates is not sufficient to cover its expenses and therefore an istibdal of waqf property is deemed to be beneficial for the waqf, then under such circumstances, even if the founder has not stipulated istibdal in the deed of endowment, such a transaction may be permitted subject to the approval of the judge as well as the permission of the Sultan. This latter condition prohibiting istibdal unless permitted by a sultanic decree, irade-i seniye, was promulgated in the year 951 A.H. by the Ottoman eyhülislam Ebussuud Efendi (Ömer Hilmi, 1307A.H.: 198).
Yet, even the Hanafi position was controversial. According to this school there can be three alternatives pertaining to istibdal:
When the founder has permitted himself, according to the ten conditions mentioned above, to resort to istibdal. Under this condition three conflicting opinions have been voiced:
Imam Muhammad (al-Shaybani) has rejected this condition and argued that while the waqf would be valid, the condition itself would be void. Put differently, according to Imam Muhammad, the founder cannot vest himself with such an authority.
A group of Hanafi jurists have argued that if a founder reserves for himself the right to apply istibdal, both the waqf and the condition would be void.
Led by Abu Yusuf, the majority of the Hanafi School considers such a waqf as well as the tenth condition of ibdal-istibdal as valid.
When the waqf properties are ruined to the extent that they have become totally useless, i.e., generating no revenue or not enough to cover its expenses. Under such conditions, even if the original founder had not vested himself with the authority to resort to istibdal, and providing that the local judge decides that an istibdal would be beneficial to the waqf, the great majority of the Hanafi jurists, including Imam Muhammad, have approved of istibdal.
When the founder has not vested himself with the right to resort to istibdal and when the waqf properties are still usable, but it is argued that if the waqf property were subjected to istibdal, it would generate greater revenue for the waqf.
A group of jurists, led by Hilâl, have argued that this may lead to corruption and should therefore be prohibited.
Led by Abu Yusuf, another group is of the opinion that, providing the judge’s permission is obtained, istibdal would be valid.
Finally, when the founder has ruled that istibdal is void. Under this situation two conflicting opinions have been propounded:
In such a situation neither the judge nor any other person can resort to istibdal.
Led by Abu Yusuf, another group of jurists have argued that if the judge considers it beneficial to the waqf, he can override the original conditions stipulated by the founder.
Thus, in short, istibdal is a highly controversial issue in Islamic law and has been likened to a sharp knife capable of cutting both for good and for evil (Akgündüz, 1988: 296). The latter, however, has been challenged by recent research. In a fascinating article Miriam Hoexter has argued that the alleged direct linkage between istibdal and corruption should not be taken for granted. On the contrary, she has furnished solid evidence from the Algerian waqf registers that istibdal transactions were not only economically fair but also constituted a very profitable business for the Algerian Harameyn waqfs (Hoexter, 1997).
Source: Murat Cizakca, A History of Philanthropic Foundations: The Islamic World From the Seventh Century to the Present. Republished with permission.