THE EFFECT OF THE WAQIF CLAUSE ON THE WAQFQuoted
Journal of college of Law for Legal and Political Sciences,
2021, Volume 10, Issue issue 39 part 2, Pages 478-501
AbstractThe endower’s condition is a condition set by the endower, which has an impact in determining the endowment’s subjective provisions and their effects. These conditions may be divided into several sections and are based on several bases, some related to its harmony with endowment, or its attachment to the pillars of endowment or respecting the will of endowers. Generally speaking, endower’s condition differs from holding condition. On the one hand, the endower’s condition is a restrictive condition set by the endower by which he restricts the beneficiary power or yield’s distribution when he modifies the subjective provisions of the endowment. On the other hand, the holding condition is a condition that describes contractual obligation, on which the existence or termination of the obligation is attached. The conditions stipulated by the endower have great power in Islamic jurisprudence and have great effect in modifying the subjective provisions of the endowment. Moreover, they are highly respected by the jurists to the extent that resulted the rule that says “the endower’s condition is like the legislator’s text”. However, these conditions may contradict themselves or have conflicts with the endowment’s subjective provisions. This is to say that this conflict has to be removed within the strength of these conditions, as this finally necessitates a legislative regulation that shows the mechanism for such removal.
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