Islamic Law of Transaction: Waqf and Ownership of Usufruct

1. What Is a Waqf?

A waqf is property that is permanently dedicated for a religious, charitable, family, or social purpose.

The original text uses the word mortmain, but the clearer Islamic term is:

Waqf

Example

Ali dedicates a house as a waqf for poor students.

The house is no longer treated like Ali’s ordinary private property.

Instead, it is set aside permanently for the purpose stated in the waqf.

2. What Happens to Ownership of the Physical Property?

According to the passage, once the property becomes a waqf:

the physical property can no longer be privately owned in the ordinary way.

This means the waqf property is removed from normal private ownership.

Example

Ali makes a house a waqf for travelers.

After that, Ali cannot simply treat the house like his normal private house and say:

“I will sell it whenever I want.”

The house has been permanently dedicated to the waqf purpose.

So:

Private property

↓

Valid waqf created

↓

property dedicated permanently

↓

ordinary private ownership ends

3. What Happens to the Usufruct?

Although the physical property itself is dedicated as waqf, its usufruct is given to the people named as beneficiaries.

Usufruct — Manfa‘ah

Usufruct means the legal right to use and benefit from property.

So:

Waqf property itself → dedicated

Usufruct → given to beneficiaries

4. Example

Ali establishes a house as a waqf for university students.

The students do not own the physical house.

But they may receive the right to:

• live in it,
• use its rooms,
• enjoy the benefit specified by the waqf.

So:

House itself → waqf

Students → owners/holders of the usufruct

5. Who Are the Beneficiaries?

The people who are entitled to benefit from a waqf are called:

Beneficiaries

These are the persons or group named in the waqf arrangement.

Examples:

• poor people,
• travelers,
• students,
• family members,
• mosque users,
• patients,
• another named group.

6. Can the Beneficiaries Use the Waqf Property Themselves?

Yes.

If the waqf gives them the usufruct, they may personally enjoy that benefit.

Example

A house is made waqf for travelers.

Travelers may:

stay in the house themselves

because the benefit was created for them.

So:

Waqf

↓

usufruct assigned to travelers

↓

travelers personally use the property

7. Can the Beneficiaries Allow Someone Else to Use the Benefit?

According to the passage:

Yes, generally.

The beneficiaries may give another person the right to enjoy the usufruct if this is not prohibited by:

• the waqf deed or contract,
• the terms set by the founder,
• accepted custom or convention.

So:

Beneficiary owns/holds usufruct

↓

may use it himself

OR

↓

may allow another person to use it

↓

unless restricted

8. Example Where Transfer Is Allowed

Suppose a house is made waqf for students.

The waqf terms do not say that only the named students may personally occupy it.

If the legal arrangement and custom allow it, the beneficiary may permit another person within the permitted category to enjoy the benefit.

The important point is:

The usufruct can sometimes be transferred or shared, but only within the limits of the waqf.

9. Example Where Transfer Is Not Allowed

Suppose the waqf deed states:

“This house is only for poor female students enrolled at this school.”

A beneficiary cannot simply give the house to someone outside that group.

Why?

Because the waqf terms restrict who may benefit.

So:

Waqf terms

↓

define the beneficiaries

↓

benefit cannot be transferred contrary to those terms

10. What Does “Convention” Mean?

The passage also mentions convention.

This means accepted custom or normal practice.

In Islamic law, this is often connected to:

‘Urf

‘Urf means recognized custom.

Example

A waqf building is intended for quiet student accommodation.

Even if the document does not list every prohibited activity, normal custom may make it clear that the building cannot be turned into a noisy commercial workshop.

So custom can help explain:

• how the property may be used,
• who may use it,
• whether the benefit may be transferred.

11. The Physical Property and Its Benefit Are Separated

This is another example of partial ownership.

The physical property is dedicated as waqf.

The beneficiaries receive the usufruct.

So:

Physical asset → waqf

Usufruct → beneficiaries

This shows again that:

Ownership of the benefit can exist separately from ownership of the physical asset.

12. Example With a Farm

Ali establishes farmland as waqf for poor families.

The poor families do not own the land itself.

But they may receive the right to:

• cultivate it,
• collect produce,
• benefit from its use,

depending on the waqf terms.

So:

Land → waqf

Farming benefit → beneficiaries

13. Example With a Shop

A shop is made waqf for the benefit of an orphanage.

The physical shop remains waqf property.

The income or use of the shop may be directed to the orphanage according to the waqf terms.

So:

Shop itself → waqf

Benefit/income → designated beneficiaries

14. Can the Beneficiaries Sell the Waqf Property?

No, not simply because they enjoy its usufruct.

They do not own the physical property in the ordinary private sense.

Therefore, receiving the usufruct does not normally give them the right to sell the waqf asset itself.

Example

Students live in a waqf house.

They cannot say:

“Because we use the house, we will sell it.”

They own or hold:

the benefit

not:

the physical waqf property

15. Can the Beneficiaries Sell or Transfer the Usufruct?

The passage says they may allow another person to enjoy the usufruct if:

• the waqf terms do not prohibit it, and
• accepted custom does not prohibit it.

This means their power over the benefit is real, but it is not unlimited.

So:

Usufruct ownership is controlled by the purpose and conditions of the waqf.

16. One Complete Example

Ali makes a house waqf for travelers.

Step 1 — Waqf Is Created

The house is permanently dedicated.

Ali can no longer treat it like normal private property.

Step 2 — Beneficiaries Are Identified

The beneficiaries are:

travelers

Step 3 — Travelers Receive Usufruct

They may:

stay in the house

and enjoy its residential benefit.

Step 4 — Can They Let Someone Else Use It?

Possibly yes, if:

• the waqf terms allow it,
• the person falls within the allowed use,
• custom does not prohibit it.

Step 5 — Can They Sell the House?

No.

Because:

they own/hold the usufruct

not:

the physical waqf asset

17. Why Is This Different From a Lease?

In a lease:

Owner keeps physical property

Tenant receives usufruct for payment

In a waqf:

Physical property is permanently dedicated

Beneficiaries receive usufruct according to the waqf purpose

So both involve usufruct, but they arise through different legal arrangements.

18. Why Is This Different From a Simple Loan?

In a simple loan:

Owner temporarily allows use without payment

In a waqf:

Property is permanently dedicated to a purpose

and the beneficiaries receive the benefit according to the waqf terms.

So:

Simple Loan

temporary use from a private owner

Waqf

continuing benefit from permanently dedicated property

19. Direct Questions and Answers

Question 1: What happens to a property when it becomes waqf?

Answer:

It becomes permanently dedicated and is no longer treated like ordinary privately owned property.

Question 2: Who receives the usufruct?

Answer:

The persons or group named as beneficiaries in the waqf.

Question 3: Do the beneficiaries own the physical property?

Answer: No.

They own or hold the usufruct, not the physical waqf asset.

Question 4: Can the beneficiaries use the property themselves?

Answer: Yes.

They may personally enjoy the benefit allowed by the waqf.

Question 5: Can they allow someone else to use the benefit?

Answer: Generally yes, if this is not prohibited by:

• the waqf terms,
• the founder’s conditions,
• accepted custom.

Question 6: Can they sell the waqf property?

Answer: No, not simply because they are beneficiaries.

Their right is over the usufruct, not ordinary ownership of the physical asset.

20. Final Flow

WAQF

↓

Physical property permanently dedicated

↓

ordinary private ownership ends

↓

usufruct assigned to beneficiaries

↓

Beneficiaries may:

use the benefit themselves

OR

allow another to use it

↓

provided:

waqf terms and custom allow it

21. One-Sentence Rule to Memorize

In a waqf, the physical property is permanently dedicated and is not privately owned in the ordinary sense, while the named beneficiaries receive the right to use and benefit from its usufruct according to the conditions of the waqf.

The easiest memory shortcut is: Waqf = asset permanently dedicated; beneficiaries receive the benefit.