Etymologically, the word waqf comes from the word katawaqafa–yaqifu–waqfan, meaning to stop or withhold. Terminologically, clerics has defined the meaning of waqf, among others are as followed:
Definition waqf according to Imam Nawawi is to withhold an amount of wealth which can be beneficial not for himself, meanwhile, the object has to remain his and to be used for kindness and to be closer with Allah.
According to Syaikh Umairah and Ibnu Hajar al-Haitami, the definition of waqf is to withhold an amount of wealth to be utilized by maintaining its integrity, and cutting off the ownership of that wealth for something that is permitted.
Imam Syarkhasi confronted his opinion about waqf which is to withhold wealth from the grasp ownership of other people.
The definition of Waqf according to al-Mughni is to withhold a wealth under the name of the owner, followed by providing benefits as almsgiving.
According Ibnu Arafah, the definition of waqf means to give benefits of something, by the time of its existence, simultaneously when the waqaf is in the possession of its owner, even though if it’s just only a prediction.
According to the book Kompilasi Hukum Islam, Waqf is an act of within the boundaries of law by an individual, group or legal entities separating an object ownership and institutionalizing it permanently for the interest religion or other public necessities according to the studies of Islam.
Stated in the statutory law No. 41 Tahun 2004 about waqf, waqf is defined as an act within the boundaries of law of a waqif (party waqf-ing their wealth) to be utilized for ever or a periode of time in accordance to its use for religious matter and/or the welfare of a society by sharia laws.
Varieties of waqf
The variety of waqf according government laws No.2 Tahun 1977 nor it is stated, it is stated only to mediate social waqf under the ownership of a plot of land. Other types of waqf such as family’s waqf is not stated in the specified statutory law. This is intended to avoid the obscurity of the waqf.
Varieties of waqf according to fiqh (Islamic Jurisprudence):
- Family Waqf
One of the varieties of waqf is Familiy Waqf. A type of waqf appointed to a specified individual or more than one, either a family member or not. For example, a book waqf-ed to a child, later passed on to his/her grandchildren. This waqf is considered legitimate and those entitled are stated in the waqf.
Another type is general waqf. A type of waqf specified for the benefits of the public from the beginning, not specified to a certain individual. General waqf is in accordance to the practice of waqf, stated that religious merit will continue to generate until the waqif has died. Provided that the waqf still exist and is continuously benefited by society as a facility for the welfare in the fields of social, education, culture, economy and also religion.
Purpose and the Functions of Waqf
The Purpose of waqf is to be benefited according to its functions.
The functions of a waqf is to materialize the potential and economic benefits of something for the importance of religion and the development of a society.
Source: A book regarding about the meaning, terms, varieties, purposes and the functions of waqf.
– Mardani, 2011. Hukum Ekonomi Syariah di Indonesia. Yang menerbikan Refika Aditama: Bandung.
Hukum wakaf adalah sunnah, dengan mengingat dalil di atas dan hadits Abu Hurairah Radhiyallahu ‘anhu, Rasulullah Shallallahu ‘alaihi wa sallam bersabda:
إِذَا مَاتَ الْإِنْسَانُ انْقَطَعَ عَنْهُ عَمَلُهُ إِلَّا مِنْ ثَلَاثَةٍ إِلَّا مِنْ صَدَقَةٍ جَارِيَةٍ أَوْ عِلْمٍ يُنْتَفَعُ بِهِ أَوْ وَلَدٍ صَالِحٍ يَدْعُو لَهُ
Apabila manusia meninggal dunia, maka terputus amalnya kecuali tiga perkara: shadaqah jariyah, atau ilmu yang bermanfaat, atau anak shalih yang mendoakannya. [HR Muslim 3084].
Syaikh Ali Bassam berkata: Adapun yang dimaksud dengan shadaqah dalam hadits ini ialah wakaf. Hadits ini menunjukkan, bahwa amal orang yang mati telah terputus. Dia tidak akan mendapat pahala dari Allah setelah meninggal dunia, kecuali (dari) tiga perkara ini; karena tiga perkara ini termasuk usahanya. Para sahabat dan tabi’in mengizinkan orang berwakaf, bahkan menganjurkannya. [Lihat kitab Taisiril Allam, 2/132].
Imam Tirmidzi berkata: Kami tidak melihat salah seorang sahabat dan orang Ahli Ilmu pada zaman dahulu mempermasalahkan kebolehan mewakafkan tanah, melainkan hanya Syuraih yang mengingkarinya. [Lihat Fathul Bari, 5/402].
Imam Syafi’i berkata: Kami tidak pernah mengetahui orang Jahiliyah mewakafkan sesuatu, tetapi orang Islam yang mewakafkan hartanya. Ini menunjukkan, bahwa di dalam Islam, wakaf adalah masyru’. [Lihat Taisiril Allam Syarah Umdatul Ahkam, 2/245].
Al-Mauquf (Wealth that can be endowed)
Depending by the types of object that is to be endowed, waqf is divided into three types:
a. Waqf consisting of an inanimate object/ immovable, such as a plot of land, house, shop. These types of waqf have been approved by great ulemas
b. Waqf object that can be moved/ mobile such as cars, animals and other obejcts. This type of waqf is approved and included in the hadith:
وَأَمَّا خَالِدٌ فَقَدْ احْتَبَسَ أَدْرَاعَهُ وَأَعْتُدَهُ فِي سَبِيلِ اللَّهِ
“Khalid as he is keeping his armor for Allah's Cause (for Jihad).” (HR. al-Bukhari dan Muslim)
Asy-Syaikh Muhammad bin Shalih al-‘Utsaimin said: “Animals including objects that can be beneficial. If it’s an animal that can be mounted, therefore it can be ridden and if it’s an animal that can produce milk, then the milk can be beneficial.”
c. Waqf in the form of money
Regarding to this type of waqf, asy-Syaikh Muhammad al-Utsaimin said,” The right thing to do is endow money to be lent for those who truly need it. This is not forbidden nor there is a postulate that prohibits it. The purpose of this is to do good for other people.”
(Referring al-Bhuts al Islamiyyah magazine edition 77, Taudhihul Ahkam and asy-Syahrul Mumti’)
Waqf in the form of money is also mentioned in the Fatwa of al-lajnah ad-Daimah no. 1202.
Among other things that has to be paid attention to, is the wealth/ fortune that is to be endowed:
1. The object of the wealth/ fortune is known and must be determined
Anything that is to be endowed must be an object that is already known and have been determined. Not some object that is vague, if so, the waqf will not be legitimate. For example: Someone said: “I am endowing (waqf) one of my houses.”
This kind of waqf is not valid because the house that is to be waqaf-ed has not been determined, unless if you waqf an object that is not yet determined, but having the same nature and condition. The right opinion in this matter is, if the conditions of the object are the same, the waqf is valid. For example: Some person has two identical houses, and then that person said:” I endow (waqf) one of my houses to Fulan.” This is acceptable. (See asy-Syahrul Mumti’ for reference)
2. The object is owned by the waqif
It is forbidden to waqf a wealth/ fortune in a state of being insured/mortgaged to another party. (See Fatwa al-Lajnah ad-Daimah no.17196 for reference)
3. The object that is to be endowed must be an object that can be sold or bought, but also beneficial with the object still in its rightful form.
This does not mean the object that is endowed can be sold or bought. The ulemas in al-Lanjah ad-Daimah stated this matter in fatwa no.8376,19300. Also stated, the selling of books or holly books that has been endowed is forbidden or haram.
The person who accepts the benefit must make good use the waqf or he/she can give it to another person to be benefited. To trade a waqf with money is forbidden, with the exception of books, trading a books with other books that is also endowed (waqf).
This point determines an object that is endowed (waqf) have to be an object that can be bought or sold.
Asy-Syaikh Muhammad al-‘Utsaimin said,” Something not beneficial or a waqf is not considered valid, as it is not valid to be sold or bought. What is the use from an object that is waqf-ed but is not beneficial? Similar to a person waqf-ed a very old donkey. Therefore, the waqf is not beneficial, because it cannot be ridden and cannot be utilized for carrying loads, it will even be detrimental because it has to be fed…” (asy-Syahrul Mumti’)
Most of the ulemas states that a wealth/ fortune endowed must be beneficial continuously. Based on this, if a wealth/ fortune of a waqf is an object that is beneficial for a certain amount of time, the waqf is considered not valid.
For example, if a person rents a house for 10 years, later he endows (waqf) his house to another person. In this matter, the waqf will not be valid, because it is beneficial continuously, only for the time period of the rent. In the other hand, the house is a rental, not owned by the renter. So the renter has only the benefit and not the object.
Meanwhile, some ulemas also stated the existence of wealth/ fortune not possible to be endowed, but rather to be consumed (food), therefore the waqf is not considered valid. Among the postulate mentioned by the ulemas is stated in the hadith:
إِنْ شِئْتَ حَبَسْتَ أَصْلَهَا
“If willing, you withhold that wealth.” (HR. Bukhari-Muslim)
This hadith shows a waqf cannot be an object that can be withheld, as stated by Asy-Syikh Shalih al-Fauzan hafizhahullah when explaining the terms of waqf. An aset or an object being endowed must be something that can used with continuous benefits and the object must still exists/ remain. A waqf is considered not valid if the wealth can be consumed after its use, such as food…(al-Mulakhas)
Rules and conditions of waqf According to the statutory law No.41 regarding waqf states that a waqf can only be done by fulfilling its rules and condition as followed:
1. Terms of Waqf there must be a waqif
To do waqf, there must be a waqif. A waqif is a person who endows their wealth or fortune. A waqif can be an individual, organization, or a legal entity. For an individual to do waqf, he must be an adult with a healthy state of mind, not a criminal, and he/she is the rightful owner of the wealth/fortune. For an organization or a legal entity to be a waqif, they must first fulfil organizational terms in accordance with organization’s basic budget.
2. Terms of waqf, ther must be a Nadzir.
To do waqf, there must be a nadzir. A nadzir is a person who is responsible in maintaining and managing the object that is to be endowed (waqf). Nadzir can consist of an individual, organization or a legal entity.
Stated in the rules and condition of waqf, an individual can be a nadzir if he/she meet the requirements as followed:
- Indonesian citizen
- Amanah (fulfilling)
- Physically and mentally healthy
- Not involved in legal actions
Stated in the rules and conditions of waqf, an organization can be a nadzir if by the following requiremnts:
- Committee of the organization is able to fulfil the requirements as a nadzir individually
- The organization must be in the fields of social, societal, educational and religion.
Stated in the rules and condition of waqf, a legal entity can be a nadzir if they fulfil the requirements as followed:
- The committee of the legal entity in question must fulfil the requirements as a nadzir per individual
- The legal entity is formed upon the statutory law in effect.
- The legal entity in question must initially be in the fields of social, educational, societal and religion.
According to the Statutory Law Pasal 219, to do waqf, a nadzir must be registered through the Borough Office of Religious Affair in their sub-district before they are briefed by the Camat (Head coordinator of the sub-district) and the Borough Ulemas Council to be approved or validated. At the Borough Office of Religious Affair, two people must witness a nadzir candidate to be sworn with the following oath: “By the name of Allah, I swear to be appointed as a nadzir directly or indirectly by name or whatever reason will not give or promise or present anything to anybody. I swear that I to do or not to do something in my position will not ever accept directly or indirectly from anybody a promise or any gift. I swear that I will always consistently respect highly the job and the responsibility which sticks to my position as a nadzir in taking care of the waqf property in accordance tis aim and goal.”
3. Terms of waqf, the object must exist
To do waqf, the object endowed must exist. The object may consist of things that are mobile or immobile and having durability, not used once or valuable according to the teachings of Islam. An object can only be endowed when it is rightfully owned by the waqif.
4. Terms of waqf there must be an ‘Ikrar Waqf’
Ikrar waqf is an oath/ statement made by the waqif to endow his/her belongings. Ikrar waqf is done in the presence of the representative of the waqif and PPAIW (Pejabat Pembuat Akta Ikrar Wakaf) along with two witnesses. The ikrar is done verbally and in writing, also the waqf valued in the ikrar deed approved by PPAIW. If the waqif cannot pronounce the ikrar or is not presence in the implementation of the ikrar because of an act of crime, the waqif can appoint him/her with his/her letter of authority reinforced by the two witnesses.
5. Terms of waqf, the beneficiaries must be appointed
To do waqf, the object endwoed must be beneficial. In terms to achieve the functions and goals of waqf, the wealth/ fortune endowed can only be benefited as a:
- Religious facility
- For events and infrastructure for educational and health purposes
- Aid for homeless kids, the poor, orphans, and scholarships
- Economic development of ummah
- And other development and welfare not opposing with the laws of Islam and the statutory law.
6. Terms of waqf, the wealth must have a time period
To do waqf, the wealth must have a time period. In general, the ulema said: What is endowed must be everlasting. But Imam Malik and syi’ah groups states: The use of waqf can obtain a time limitation. Meanwhile Hanafiyah group states: A wealth/ fortune endowed must be eternal and can be benefited continuously.
Syaikh Abdullah Ali Bassam said: Waqf is the most noble sadaqah a person can do. Allah encourages waqf, promising many religious merits for the endower. This is because sadaqah in the form of waqf is continuously benefited for good and avail. The peculiarity of waqf are:
First: An act of good for those who benefits from it and those in need. For example, the poor, orphans, widows, people without jobs or people who jihad fi sabililah (for the cause of Allah), teachers and students, helper or for those who provide service for the welfare of a society.
Second: An act of kindness by the endower to do sadaqah his/her fortune will recieve religious merits continuously flowing, even if the endower has died. [Referring to The book of Taisiril Allam, 2/246]