David S. Powers, The Islamic Family Endowment (Waqf), 32 Vanderbilt Journal of Transnational Law 1167 (1999).
*Note: All quotes are from the above article.
Short definition: waqf: “endowment”
Long definition: Centuries before the trust was developed in English common law, Islamic law developed the waqf, or endowment. Though not mentioned in the Qur’an, the waqf dates from the first few centuries of Islamic law.
Doctrinally, waqf rested on two principles: real property can be distinguished from its revenues, and real property can be sequestered forever. Following these principles, a Muslim could sequester a piece of his property, keeping the title but specifying beneficiaries to whom its revenues would be given. The class of beneficiaries could continue in perpetuity (i.e. all of the founder’s male descendants). In the case of the waqf ahli, or family endowment, a charitable entity was chosen to receive the property in case there ever ceased to be beneficiaries. A variety of documentary and literary sources attest to the popularity of the waqf in pre-modern Muslim society.
Under the Maliki school of law, a waqf could be created inter vivos or by a will. If established inter vivos, the waqf took effect immediately and could not be revoked. The founder no longer had the right to use the revenues of the property; it was completely in the control of the beneficiaries. But if the waqf was created by a will, it had to follow traditional inheritance law, meaning it could only be up to one-third of the testator’s estate. A lifetime waqf, however, was not subject to any size restrictions. For this reason, it seems that the inter vivos waqf was more common.
Scholars note that the popularity of the inter vivos waqf seems due in large part to its ability to help property owners avoid the rigid rules of Islamic inheritance law:
“As part of the larger Islamic inheritance system, endowment law accorded Muslim proprietors a legal means to circumvent the effects of the Islamic inheritance rules by allocating usufruct rights to specified people in specified amounts and to regulate the transmission of those rights from one generation of beneficiaries to the next.” (Powers 1999)
The terms of the waqf were enumerated in a deed. In this document, the founder identified the first generation of beneficiaries, then specified rules for passing the entitlement down through the generations.
Contributed by Alicia Daniel.