those conditions entail enjoining what Allah has forbidden, forbidding what He has commanded, deeming lawful what He has prohibited, or declaring unlawful what He has allowed. Such conditions are null and void, by unanimous agreement of the Muslims, in every contract—waqf or otherwise. The scholars, however, have differed with regard to transactions and permissible matters such as sale, lease, and marriage: does the hadith, “Whoever stipulates a condition…,” censure anyone who sets a condition whose contravention of the Sacred Law has not yet been established, or only the one who knowingly stipulates a condition that conflicts with what Allah has legislated?
On this point there is debate, for the closing words of the hadith—“The Book of Allah has the greatest right, and Allah’s condition is the most binding”—indicate that an invalid condition is one that conflicts with that standard. Likewise, the Prophet’s words, “Whoever stipulates a condition that is not in the Book of Allah, it is void,” can be understood to refer to anything the Law has not prescribed. Those who hold the first view argue that whatever the Law has not forbidden among the permissibles is, by that very fact, something Allah has permitted and is therefore sanctioned by the Book of Allah. As for contracts meant as acts of devotion, such as vows, the vowed act must itself be an act of obedience; if the act is merely permissible, fulfilling the vow is not obligatory.
Shaykh al-Islam—may Allah have mercy on him—then spoke about innovation (bidʿah), stating that every form of it is condemned by the Sacred Law. He clarified that what was done after the Messenger’s death—compiling the Quran into a single codex, uniting the people behind one reciter for the night prayers of Ramadan, and expelling the Jews and Christians from the Arabian Peninsula—is not innovation but legislation, for at the very least these are part of the Sunnah of the Rightly Guided Caliphs, may Allah be pleased with them.
He added: In sum, there is no disagreement among the scholars that a waqf designated for non-prescribed acts of prayer, fasting, or the like is invalid; the dispute concerns matters that are merely permissible. This is a fundamental principle: distinguishing between a permissible act performed simply because it is permissible and an act that is elevated to the level of religion, worship, obedience, and a means of drawing near to Allah. Whoever turns what has not been legislated into religion and devotion commits something unlawful by unanimous agreement of the Muslims.
He further said—may Allah have mercy on him: The third category involves a permissible act in which neither alternative is preferred. Some scholars deemed fulfillment of such a stipulation obligatory, yet the majority of jurists in the well-known schools and beyond consider the condition void; for them, a stipulation is only valid when it constitutes a means of seeking nearness to Allah. The reason is that a person may not expend his wealth except on what brings benefit in his religion or his worldly life. While alive, one may indeed spend on permissible aims, for he benefits from them. After death, however, nothing remains from which he can profit through the deeds of the living except a righteous act he ordered, assisted with, or to whose performer he gifted its reward. Actions that are not acts of obedience to Allah and His Messenger do not benefit the deceased. Therefore, if a testator or endower stipulates a deed or quality that carries no reward, striving to fulfill it is an effort that benefits him neither in this world nor in the Hereafter, and such a stipulation is impermissible.