Part 15

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aul Jaw 3 As for Khaalid, you have done him wrong [by asking him for zakaat] as he is keeping his armor [as an endowment] and having it prepared for [fighting for] the sake of Allah.” [Recorded by al-Bukhari.] The agreement of the nation is that one may also give as an endowment the rugs, mats and lamps in the mosques; there is no objection to those types of endowments.

Jewelry may also be made an endowment for wearing and lending. This is because it is an article that may be benefited from perpetually and hence one may give it as an endowment like immovable property.

The endowment is built upon two important factors: the one giving the endowment and the thing that is given as an endowment. Each one has specific conditions that it must meet.

There are certain conditions that the one making the endowment must meet in order for the endowment to be considered valid. These are:

(1) The one making the endowment must be one legally capable of making donations. An endowment is not proper from one who has illegally seized property or who is

buying something and is not yet in full ownership of the thing that he wants to make an endowment.

(2) The one making the endowment must be sane. Endowments are not valid from the insane or weak of mind.

(3) The one making the endowment must be adult as endowments are not allowed from children, whether or not they have reached the “age of discernment”.

(4) The one making the endowment must be someone who acts in a reasonable manner; endowments are not allowed from people who due to their stupidity or naiveté have been prohibited from dealing with their own wealth; nor are they allowed from the overly negligent.

In order for the endowment to be executed, it must meet the following conditions:

(1) It must be wealth that has some value to it, either immovable property or otherwise.

(2) The endowment must be something known and specified.

(3) The endowment must be owned by the one making the endowment at the time he makes the endowment.

(4) The endowment must be privately owned and not commonly or publicly owned. It is not allowed to make one’s share of public property an endowment.

(5) No one else may have any rights over the endowment.

(6) It must be the case that the benefit of the endowment is something commonly known.

(7) The benefits accruing from the endowment must be permissible.

The benefits of endowments are obtained by their use, such as living in a house, riding an animal, using the wool, milk, eggs and fur of animals.

Topic Three: The Difference Between an Endowment and a Bequest

There are a number of differences between an endowment and a bequest, including:

(1) In the case of an endowment, the property is maintained and not given away while the benefits or proceeds are given to others. In the case of a bequest, the ownership is attributed after the person’s death to another by way of donation, regardless of whether it be the item itself or its usufruct.

(2) An endowment is binding and it is not allowed for a person to retract it according to the majority of the scholars. This is based on the statement of the Messenger of Allah (peace be upon him) to Umar,

“If you wish, you may retain the property while giving [its proceeds] away in charity.” Umar did so on the condition that its property would not be sold, given as a gift or inherited. [Recorded by al-Bukhari.] Umar gave the proceeds in charity to the poor, relatives, slaves buying their freedom, warriors fighting for the sake of Allah, travelers and visitors. There is no harm if the one in charge of it eats from it according to

what is customarily acceptable or if he feeds a friend an amount which is not valuable.

As for an endowment, it is binding; however, it is permissible for the one making the bequest to rescind all or part of it.

(3) Endowment does not allow anyone to take over ownership of the endowed property; only the proceeds are owned. A bequest includes both the property itself and its proceeds.

(4) The ownership of the proceeds of an endowment becomes apparent during the lifetime of the one founding the endowment as well as after his death. The ownership ofa bequest does not take effect until after the death of the one making the bequest.

(5) There is no limit to the maximum that one may give as an endowment. However, one may only bequeath up to one-third of one’s property, unless the rightful heirs give their permission to give more.

(6) It is permissible to make one’s heirs the benefactor of an endowment. In the case of a bequest, one may not bequest anything to a rightful heir unless the other rightful heirs permit such an act.

This chapter comprises an introduction and a discussion of the following three topics:

Topic 1: Types of bequests and their legal status;

A bequest is the command to perform some act or disposition after the death of the one making the bequest. It may include acts like fulfilling a trust, giving something in charity, marrying off one’s daughters, washing the dead, praying upon him and so forth.

The basis for bequests is found in the Quran, sunnah and consensus. Allah says,

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“Tt is prescribed, when death approaches any of you, ifhe leave any goods, that he make a bequest” (al-Bagarah 180). The Messenger of Allah (peace be upon him) said,

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“It is not right for any Muslim, when he has something that he wants to bequeath, to spend two nights except that his bequest is recorded with him.” [Recorded by al-Bukhari.]

A bequest can be made in one of three ways: (1) by speech, (2) by recording or (3) by understood signaling.

(1) By speech: There is no disagreement among the jurists that a bequest can be made by explicit speech, such as a person saying, “I bequeath this to so and so.” It can be done by implicit speech if it is understood by the context to refer to a bequest, such as, “I make such and such for so and so after my death,” or, “Bear witness that I have bequeathed such and such to so and so.”

(2) A bequest may be through writing if itis froma person who is mute and cannot speak.

(3) A bequest may also be made by understood signaling if the person is mute or is not able to speak for some reason. However, this is conditional upon the fact that the person is not able to speak.

Topic One: The Types of Bequests and Its Legal Status

A bequest is both legal and recommended, as Allah has said, 4 ° Syd oS iel ya 13) 4

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“O you who believe! When death approaches any of you, (take) witnesses among yourselves when making bequests, two just men of your own (brotherhood) or others from outside if

you are journeying through the earth, and the chance of death befalls you” (al-Maaidah 102).

(1) The obligatory bequest: This is a bequest upon a person who is in debt and who has some rights against him or some trusts or pacts that he must fulfill. It is obligatory upon him to make such matters clear by writing a definitive, explicit will that delineates the debt and states whether it is to be paid promptly or over time. It should also state what trusts or pacts he must fulfill so that the matter can be clear for his heirs when they take care of the dispositions that he has put them in charge of.

(3) The recommended and desirable bequests: This is wherein one bequests up to one-third of his wealth to persons

other than his rightful heirs. This [distribution] is recommended and can be given to charitable causes and other righteous outlets, regardless of whether it be to a specific relative, a non-relative or specific causes, such as a specific mosque, or general purposes, such as for the sake of mosques, schools, libraries, refugees, clinics and so on.

It is not allowed for the bequest to be more than onethird of one’s wealth. This point is based on the Prophet’s statement to Saad when Saad said, “Can I give all of my wealth away in a bequest?” The Prophet (peace be upon him) replied, “No.” He then asked, “How about one-half?” The Prophet (peace be upon him) said, “No.” Then he said, “How about one-third?” He replied, “One-third [is permissible] but one-third is [still] much.” (Recorded by al-Bukhari and Muslim.)

It is not permitted to make a bequest for a rightful heir or to make a bequest beyond one-third of one’s wealth unless it is done by the permission of the other rightful heirs.

What is Taken Into Consideration for the Bequest to Be Valid

(2) It must be in accord with what Allah has legislated through His Prophet (peace be upon him).

(3) The one making the bequest must do his deed purely for the sake of Allah and desire by his bequest the doing of righteous deeds and goodness.

There are three factors or agents in a bequest: the one making the bequest, the one for whom the bequest is made and the object of the bequest. Each one of these has specific conditions that it must meet. The following notes the most important of such conditions:

(1) He must be someone who is qualified to make donations. - (2) He must be the owner of the bequeathed property. (3) He must make the bequest out of his own free will and choice.

Conditions for the One for Whom the Bequest is Made

(1) He must be a recipient for the sake of goodness or what is permissible.

(2) The one for whom the bequest is made must be existing, in reality or theoretically [such as a child in his mother’s womb], at the time of the bequest. It is not valid to make a bequest for someone who does not exist.

(4) It must be one who has the legal capability to own.

(5) It cannot be the killer of the one making the bequest.

(1) It must be wealth that could be inherited.

(2) The wealth bequeathed must be something of value according to Islamic law.

(3) It must be something that can be owned, even if it does not actually exist by the time the bequest is made.

(4) It must be part of the one making the bequest’s property at the time of the bequest.

(5) What is bequeathed must not be sinful or forbidden ’ according to Islamic law.

There is agreement that it is best to record the bequest, starting with the name of Allah, followed by praises to Allah and then prayers and blessings upon the Prophet (peace be upon him). Then the witnesses should make it known, either by writing or speech.

(3) Any chosen one from among the Muslim individuals.

(1) The person rescinds his bequest, either explicitly or by indication.

(2) The bequest was made conditional upon an act that did not occur.

(3) The thing that was bequeathed does not exist.

(4) The one making the bequest becomes no longer legally capable.

(5) According to some scholars, the one making the request apostatizes from Islam.

(6) The one for whom the bequest was made rejects the bequest.

(7) The one to specifically receive the bequest dies before the one making the bequest dies.

(8) The one for whom the bequest was made kills the one who made the bequest.

(9) The bequeathed property is destroyed or its rightful owners appear.

(10) The bequeath is voided if it is for a rightful heir and not approved by the other heirs.

This part shall be comprised of the following chapters: Chapter One: Marriage and its rulings; Chapter Two: Rulings particular for Muslim women.

This chapter is comprised of an introduction anda discussion of the following two topics:

Topic 2: What is Recommended and What is Forbidden in Relation to Marriage.

Marriage is one of the established practices of Islam that was encouraged by the Messenger of Allah (peace be upon him). The Messenger of Allah (peace be upon him) said,

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“O group of young people, whoever among you who has the ability to marry should get married. Certainly, it [helps] in lowering the gaze and keeps the private parts chaste. Whoever cannot [get married] should fast for it will be a protection for him.” [Recorded, with this exact wording, by Muslim.]

Marriage is a sound setting leading to strong ties among families, reciprocal love, chastity and protection from forbidden acts.