Chapter One

Some Rules Of Endowment

Rule (1178) Once the endowment contract is finalized it is not lawful for the donator or others to change the beneficiaries by transfer of the property to others or by means of excluding some of the beneficiaries and including others unless including others is a condition in which case it, apparently, is valid; if including as per condition is executed it is effective, otherwise, if it is not done until he dies the endowment remains unchanged, if excluding some is a condition ,apparently, it is valid and effective.

Rule (1179) The endowed property does not remain as the property of the donator, it becomes an endowed property for the beneficiaries its benefits are for them. However, If the contract says that only the benefits are to be spent for the beneficiaries it must be done so.

Rule (1180) If the contract requires a condition from the beneficiaries in Shari'a if such condition is missing the endowed property becomes free of endowment contract.

Rule (1781) If the endowed property needs money for maintenance such expenses are taken from the income of the property if any to preserve it prior to the rights of the beneficiaries. If the need for repairs is such that without it, it cannot stay existing for future beneficiaries, apparently, such repairs must be done even if the present beneficiaries lose their benefits from it.

Rule (1182) Fruits on the trees during forming the endowment contract remain the property of the owner they are not for the beneficiaries, the same rule applies to the existing unborn young during forming the endowment contract, the milk, wool of endowed sheep and also the new coming fruits, to be born young, milk and wool etc., after the formation of endowment contract before giving and taking possession in the cases where taking possession is a condition.

Rule (1183): If it is endowed to achieve a certain benefit and the facility is destroyed like in the case of a mosque that may get destroyed, or a school and it is no more possible to repair it or may not need any expense, but no one uses them; if the endowment is multipurpose, which is mostly the case the profits of the endowment are spent for other mosques or schools if possible, otherwise, for that which is closest, to the purpose.

Rule (1184) If it becomes unknown where to spend the endowment, if the beneficiaries have common ground it is spent for what is certainly qualified, like if it is not known whether the endowment is for the just scholar or scholars or whether it is for the scholars or the poor in the first case it is spent for the just scholars and in the second case for poor scholars. If there is no common ground among them if their number is not limited it is given as charity to the case which possibly is a beneficiary, if not it is spent for other such causes, if the number is limited like if it is for 'A' mosque or 'B' Mr. 'A' or 'B' is it for spending or giving possession the nearest possible solution is to decide by lot.

Rule (1185) If the first generation of beneficiaries rent the property endowed for them (a) in sequential endowment order and this generation vanishes before the term of rent expires, the renting contract is not valid for the remaining time of rent; the same rule applies if the beneficiaries are (b) to benefit jointly as partners from the endowment as opposed to sequential endowment in which the beneficiaries benefit in one after the other person or party. If one beneficiary is born during the term of rent agreement the rent contract is not valid for the share of the newly born, apparently, it is valid in both cases if the next generation in (a) or partner in (b) and the renting party receives his share of rent and there is no need to renew the rent agreement although it is a precautionary rule to do so, if the rent agreement is made by the custodian for the benefit of endowment it is valid and effective and the same rule applies if it is for the benefits of the next generation of beneficiaries and if he is custodian for this generation also the rent is valid and the later generations receive their share of benefits.

Rule (1186)If the endowed property yields various profits and produce, all belongs to beneficiaries if the contract language is absolute and unrestricted. If the trees and palm-trees are endowed the fruits, their environmental and all other physical benefits all that is inseparably part of the endowment is for the beneficiary. It is not lawful for the owners and others to use them in ways other than those set forth by the donator.

Rule (1187) The branch that may grow out of an endowed tree, if it grows and by itself becomes a tree or is cut and planted at another place and it starts bearing fruit it is not endowed like the original, it is the profit of the endowed property and it is lawful to sell it and spend for the beneficiaries, the same rule applies to the pruned branches that may have been planted somewhere else and have become trees, only the rules of the benefits of endowment apply to them.

Rule (1188) If a mosque is destroyed, the land still remains subject to the rules that apply to mosque even if repair is not possible. The same rule applies if the users vanish and it goes out of use forever.

Rule (1189)Except mosque, other endowed properties when cannot be used anymore for beneficiaries for being destroyed or unable to produce profits, it is lawful to sell some of it to repair rest. If repair the is not possible it can be exchanged for something of use to beneficiaries, if this is not possible the proceeds of sale is spent for beneficiaries.

Rule (1190) If endowed property cannot be used for beneficiaries its benefits are spent on the nearest such beneficiaries.

If it is for commemorating Imam Hussayn's martyrdom at a certain place and doing so is not possible it is spent for the same cause at another place.

Rule (1191) If beneficiaries vanish, the endowment is void and it returns to owner, as mentioned before, or his heirs if he does not exist.

Rule (119V:- If the endowed property is damaged but still yields profits, only less than normal if it can be repaired even by renting for a while to use the rent, it is necessary to do so, if not, apparently, the endowment remains effective and the profits are used for beneficiaries.

Rule (1193) If a garden is endowed to spend its profits for a certain cause, and the trees are destroyed for lack of water or some other reason if the land can be rented it is necessary to do so and the rent is spent for the beneficiaries, if there is proof that to be used only as a garden is a condition in the endowment contract, like to be used for recreation, if it is possible to sell and buy another garden, it must be done, otherwise, the endowment is void because of the cessation of the cause and it returns to the ownership of the owner.

Rule (1194) It is lawful to endow a garden and exclude one palm tree, thus, it is permissible for him to enter the garden when necessary as well as keep it there free of charges and the beneficiaries cannot cut it off but if it is cut he will have no right to the land and it is not lawful for him to plant another palm tree. The same applies to excluding a room of an endowed house but if the room is destroyed the ground remains for him because it is part of the room.

Rule (1195) If a property is only partly free property it is permissible to divide such property and the owner of the part of free property becomes custodian of the endowed part, in fact, according to a strong reason dividing is permissible if both donator and beneficiaries are more than one people like if a house belongs to two people and each endows his share of the common ratio of the house for his children or the donator is one person and the beneficiaries are more than one cause or persons as when one endows half of his house for a mosque and the other half for a holy shrine, also if the donator and beneficiary is one if dividing is not against endowment contract, like if one endows a land for his children who are four, it is permissible for them to divide it in 4ths and if one more is born the division is void but they can divide it in 5ths and if two die, division is void and they can divide in 3rds and so on.

Rule (1196) It is not lawful to change the substance of the endowed property if it is known that donator the endowing person wants to preserve the original status, regardless, it is revealed from the details of endowment like when one endows his house as residence it is not lawful to change it into shops or some external indications reveal it, in fact, even if there is a possibility that the donator had such intentions and endowment documents are not absolute and unrestricted such change is not lawful However if the endowment contract is general and unrestricted the custodian can change the house to shops or vice verse. Sometimes the intention of preserving the original status of endowment is discovered to be linked with a certain level of yielding profits, thus, it is not lawful as long as this is the case but when the yielding level is reduced it is lawful to change.

Rule (1197) If a tree is cut in the endowed garden, if the endowment is to benefit from the fruits it is lawful to sell it and use the money for the garden if it may need, otherwise, it is used for the beneficiaries. If it is endowed to just benefit the beneficiaries if it could be used for construction or so it is not lawful to sell. If it cannot be benefited from its existing condition it is lawful to sell it and use the money for the garden if needed. If not needed for the garden it is used for the beneficiary.

Rule (1198) The collection of donations for commemorating the tragedy of Karbala and martyrdom of Imam Hussayn (a.s), regardless of the source of such donations as being from certain groups of people, people of a town or others, apparently, is of the kind of charity with a condition that requires to be used for a specific cause only. Thus, it is no more the property of the donator and it is not permissible for the donators to ask for refund and if the donator dies before his donation is spent it is not lawful for his heirs to ask for refund, the same rule applies if the donator is bankrupt his creditors cannot demand refund of such donations, if it cannot be spent to ask for refund and if the donator dies before his donation is spent, it is not lawful for his heirs to ask for refund, the same rule applies if the donator is bankrupt his creditors cannot demand for refund of such donations, if it can not be spent for the intended causes, for precaution it is spent to instances nearest to the original cause of donation. If the donator has not given his property totally away and spenders are like his agents in such case it still remains his property he, his heirs or his creditor can demand for refund and it is necessary to refund it to them on demand. It cannot be spent for the cause, and if there is a possibility that the owner may not agree to its use for other causes, one must ask the owner about it.

Rule (1199) It is not lawful to sell the endowed property except the cases mentioned in the rules of buying and selling.

Rule (1200) If the purpose of endowment is to achieve a certain goal and it is discovered that the goal is not achieved, this does not invalidate the endowment, if it is discovered that the donator wants his children to benefit for their education or live in the neighborhood of a holy shrine etc., and such purpose is not achieved it does not affect the validity of endowment, the same rule applies to all goals which require unilateral or bilateral contracts if the buyer wants to make profits out of such purchase and he does not make any profits it does not affect the validity of the contract or give him the right of having the choice to annul the contract.

Rule (1201) The conditions set by the donator in the endowment contract are effective and valid and it is necessary to fulfil them, provided, they are lawful ones if a condition says that the endowed property must be rented for more than a year or must not be rented to only a certain person or a group, renting to others is not valid.

Rule (1202) A property can be proved as endowed by knowing it to be so even if such knowledge comes from hearsay and a large number of people giving such report and by means of a testimony recognized in Shari'a and by means of the professing of the person who has it in his hands even if his hands are not independent like when there is a group of people in a house and any or some of them reports that the house is an endowment property, the endowment is considered valid even if the others do not profess.

Rule (1203) If some articles have writings on them which say, n it is endowed," apparently, it is considered endowed if such articles are in the hands of someone who regrets the writing and gives a reasonable explanation it is said that such person is considered truthful and on such basis it is lawful to buy it from him or use it with his permission or apply other rules of property but such view is objectionable.

Rule (1204) If some writing is found with the legacy of a deceased which says certain articles are endowed for a certain cause, if there are signs of his professing it to be an endowment document like his signature at the end or placing it in envelop with a writing on it which says, n this is the endowment document of such and such property etc. which clearly proves it to be his professing about some property as endowed ,it is considered endowed property, otherwise, it is not considered endowed even if it is proved that it is the deceased writing.

Rule (1205) For the effectiveness and validity of the report about endowment of the person in whose hand the endowed property is, it does not matter whether it is about the endowment contract or it is about certain other details such as being an endowment to be used by the beneficiaries in sequential order or all at the same time (see 1163) that it is only for a certain sex or that the beneficiaries have equal shares or different or that it is a spoken report or it is by deeds like dealing with it as an endowment property or using as an endowment use by the sequential order of beneficiaries or in manner of all at the same time, if such deeds provide clear indication of a communication about the status of the property such deeds are also dealt with as the spoken report.