WAQF
Waqf, known in common law systems as a trust, is an important area of property law under Islamic law and Iranian law. While the institution and remedy of trust under the common law covers many commercial and personal transactions, including for charitable purposes, the institution of waqf is of a more charitable nature.
Historically, under common law, the trust device developed as an innovative legal institution by major land owners to prevent some obstacles in the management of their land interests.[629] By this device the land owners were able to manage their property as they wished, particularly after their death. In common law countries, the institution of ‘trusts’ has constantly developed and evolved through case law. The law of trusts has acted to address the state intervention in the redistribution and management of wealth by eliminating or reducing taxes, and limiting the government’s regulation of an individual’s wealth and property.[630]Under Islamic law, waqf is a charitable institution that has acted as a social mechanism to eliminate poverty and support low socio-economic groups in Muslim societies. It is also a device to support and manage certain Islamic institutions, such as mosques, cemeteries, holy shrines, and Islamic schools and religious institutions. The origin of the waqf in Islam is based on the Sunnah of the Prophet Muhammad, and in a hadith (saying) he referred to the continuous charity as a good deed for every Muslim.[631] This continuous charity was developed as waqf under Islamic jurisprudence and later became an important institution throughout the history of Islam, particularly during the Ottoman Empire (1299-1923).
Under Islamic law, waqf is classified into two main categories: waqf al ahli (waqf for the family) and waqf al khayiri (charitable waqf).[632] According to some Islamic jurists, including the majority of shia scholars, a significant aspect of waqf is that the assignment of property for the purpose of waqf must be perpetual.[633]
The land subject to waqf cannot be alienated, and is not to be gifted, nor to be inherited.[634] However, according to the Hanafi school, the waqf property may, under certain circumstance, be sold.[635] The trustee (muta- wali) may be paid from the benefit and may use the benefit to feed needy and poor people.[636]
Both real property and chattels, including animals, can be the subject of waqf except under the Hanafi School, where animals cannot be the subject of waqf.[637] Waqf for certain non-Muslims who are people of the Book (Christians, Jews and Zoroastrians) is allowed.[638] One of the Prophet’s wives, Saphiah, made certain properties waqf for her brother who was Jewish.[639] According to some scholars, particularly in the Hanafi School, a person may make waqf for himself or herself, and for their children and grandchildren.[640]
Waqf is an important institution under Iranian law and details of waqf are covered by the Iranian Civil Code (Articles 55-91).
The provisions of the Civil Code in relation to waqf are almost entirely based on Islamic jurisprudence (Shia). Waqf is defined by Article 55 as ‘freezing the ownership and allocating the benefits’ for charitable purposes. This definition is entirely based on the definition of waqf under Islamic jurisprudence.[641] The term ‘habs’, which literally means ‘detention’, does not show whether the ownership transfers to the beneficiary (mawqoufon alayhem) or to the trustee (motavalli), or stays with the settler or testator (waqef). It may mean that the ownership stays with the settler, but the assignment and alienation of the property and its interests are frozen except for the benefit of the beneficiaries. According to the Shafi’i school of jurisprudence, when a property is made waqf, the ownership of the property is transferred to God, and therefore the settler, trustee or beneficiary would not have any legal title over the trust property (mawqouf alayh).[642] However, according to the Maliki and Hanbali schools of jurisprudence, by creating a waqf, the settler or the testator transfers the ownership to the beneficiary.[643]Under common law, when a trust is created, the legal ownership of the property is assigned to the trustee (waqef) but the benefits of the property are transferred to the beneficiary.[644]
Under Article 56 of the Civil Code of Iran, waqf is a contract. Therefore there must be an offer made by the settler and acceptance expressed by the beneficiary. In the case of a charitable purpose trust, the state shall accept the offer in order to create the waqf.[645] However, according to some Shia and Sunni scholars, the institution of waqf, in certain circumstances such as general charitable trusts for the elimination of poverty, can be created by the intention of the settler only.[646]
Article 71 of the Civil Code provides that the subject of the waqf must be certain. Other provisions of the Act such as Articles 57, 58 and 67 provide that the waqf property must be certain, too.
However, waqf for a purpose, as long as the purpose is not unlawful according to the Shari’ah, is valid. This means that under Islamic law and Iranian law, certainties of the object and the subject of the trust (waqf) are necessary in order to establish an express trust.[647]In addition to Islamic jurisprudence (fiqh) and the Iranian Civil Code, there are other pieces of legislation and statutory provisions which regulate waqf in Iran. The first piece of legislation dealing with waqf was enacted in Iran in 1910.[648] Since then, there has always been a statutory body (Sazman Awqaf) dealing with waqf properties, particularly public and general charitable trusts. In 1983, legislation was enacted and the Sazman Awqaf and the relevant Hajj (pilgrimage to Mecca) body were merged into one department, known as Sazman Hajj wa Awqaf wa Omour Kheiriah (The Department of Hajj, Trusts and Charities).[649] The Department manages public charitable trusts, mosques, holy shrines, old cemeteries, and any other charitable institutions which do not have specific trustees. Given that there are thousands of mosques, shrines and charitable trusts in Iran, the Department is a significant and powerful economic institution in Iran. There are significant trust properties in various parts of Iran, and in some towns and cities; over half of the land is subject of public and charitable trusts.[650]
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More on the topic WAQF:
- Property law and trusts (waqf) in Iran
- INTRODUCTION
- Shari'a courts: jurisdiction and laws
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