it does not lead to undermining the waqf’s objective.1 In practice, the condition is enforced—for example, when the founder stipulates that no flagrant sinner, evildoer, or socially powerful person may reside in the waqf property.2
If he restricts a cemetery, a school, or the post of its imam to the adherents of a particular school of law, town, or tribe, the restriction stands: it applies to them alone, not to everyone who merely prays there. Likewise, if he declares that anyone who departs from the path of righteousness is disqualified, his declaration is valid.3
Section
The interpretation and application of his stipulations are referred to the administrator (nāẓir).4
Five qualities are required of the administrator: being a Muslim; legal capacity; sufficient competence to manage; experience in that field; and the strength to carry it out. If he is personally weak, a trustworthy and capable assistant is attached to him.
Neither maleness nor upright character is a prerequisite when the administrator is appointed by the founder himself; but if the appointment comes from someone else, uprightness is indispensable.5
( ) The implied meaning is to be taken into account just as the explicit wording is, yet to claim that following every single clause is obligatory and that whoever omits any of them is sinful is not something ascribed to anyone with even a modest share of knowledge. Since a judge’s ruling is not on a par with a textual statement of the Lawgiver—and whatever contradicts the judgment of God and His Messenger must be set aside—the wording left by a founder of a waqf is even more subject to correction. He also said: “Their saying, ‘The founder’s conditions are like the texts of the Lawgiver,’—we seek God’s protection from such a claim; we shall never equate anything with the texts of the Lawgiver.” Hashiyat al-Rawd, 5/547.
(1) Codex A reads: “ikhlaal” (omission).
(2) Codex A reads: “kama” (as).
(3) Codex A reads: “turuq” (ways).
(4) Al-Lubadi notes in his marginalia, p. 249, that the phrase has been inverted; the correct wording is: “it is referred back to his condition concerning the administrator,” as is evident. I add: this correct form is also in al-Iqna, 3/13.
(5) The additional phrase “fihi” (in it) appears in codices M and N.