This chapter focuses on the relationship between two of the central actors in the institution of waqf, the administrator (mutawallÄ«) and the tenant (mustaʾjir, sharÄ«k). In this chapter I concentrate on one specific rule: the rule of the âthree year maximum lease period.â First and most importantly, I follow the historical trajectory of this rule chronologically, and examine how it was established in fiqh, what its validity is based on, and how it has been contested over time. Second, I follow this rule into other fields of knowledge: other fields of fiqh in the wider Islamic tradition, and into the field of Yemeni codification and applied law. Where I focused on the knowledge field of codification in the previous chapter, in this chapter I place a strong emphasis on the connection between fiqh, codification, the administratorâs knowledge, and everyday waqf knowledge.
Waqf law is transactional law in which an object or a set of rights is transferred from one person to another.1 The recipient is, at least in the ideal waqf model, the beneficiary (al-maá¹£rif, al-mawqÅ«f Ê¿alayhi). If something is given to a person as a waqf, then this person cannot âownâ the asset of the waqf as God is the legal owner of waqf; however, the person does possess the right to use the waqf and to have access to its benefit. The step of setting up a waqf is theoretically done only once, it is never repeated, and the effect is thereafter permanent and perpetual. However, the beneficiary may sell the right of use for a specific period if, for example, he does not want to till the land himself; through the mutawallÄ« he can rent out the assetâthis transaction is the lease.2 The waqf asset is rented out, and the beneficiary can benefit from the rental income of the asset. Very often it is not the direct use of the asset that is useful for the beneficiary, but rather income in the form of harvest or money from rent/lease.
This second stage transaction involved in a waqf is not perpetual but temporary; it can be done several times and can involve different tenants. The lease contract can be terminated and contracted again with someone else. The so-called âthree-year maximum lease periodâ breaks the ongoing, continuous rent into separate, successive three-year periods and prohibits leases longer than three years, after which a new contract between the waqf (mutawallÄ«) and the tenant must be made. If the lease contract were continuous, i.e., if the tenant had the right to rent the asset in perpetuity, the lease contract could become something close to a sale, which is invalid for a waqf according to the fundamental doctrine of waqfs. Before we proceed, it is necessary to step back and define what it means to âownâ something.
1 Property and Lease Law
Property law or contractual or transactional law is an important part of Islamic law. A simple definition of property centres on the notion of ownership: âto ownâ a thing is, first and foremost, the right to use that thing, to have control over it, and to be able to give it away for a compensation (or not) if one so desires. Property is defined in diverse ways in western legal systems and in Islamic law, where the concept of property is somewhat vague. Delcambre writes about milk:
DjurdjÄnÄ« defines the term milk thus: âIt is a legal relationship (ittiá¹£Äl sharÊ¿Ä«) between a person (insÄn) and a thing (shayʾ) which allows that person to dispose of it to the exclusion of everyone else.â Yet for the classical Muslim jurists, the right of ownership became confused with the thing which is its object. For them, ownership is not a right (ḥaḳḳ) but a piece of property (mÄl) which has become ownership.3
In this book, I use a practical anthropological perspective that is not far from that of JurjÄnÄ« quoted above, thus I am not guided by the doctrinal meaning of milk, but focus instead on the right of access and use of the thing. In looking at leases we need to expand the definition to also include other actors, not only the relationship between the owner and the thing. Ownership in Islamic law can be transferred to other persons by means of inheritance, gift, lease (ijÄra), sale (bayÊ¿) or waqf. A similarly practical definition of a lease is the sale of the right to use (usufruct), or access, for a specific period.
In a broader perspective, the right must somehow be recognized in a wider social and cultural system. There must be a more or less agreed upon system of rules that are defined and known to the main actors. When conflicts do arise, there must also be a more or less defined consensus on how to solve these conflicts in a manner that the majority respect and in a manner that can be enforced in the local community. Predictability and stability is important. Laws of ownership go to the very core of social and cultural life as also discussed in the introduction to chapter 5.
Messick quotes al-ShawkÄnÄ« who uses the term Ê¿ismat al-amwÄl to mean something like âinviolability of property.â4 We could even translate the expression as âthe sanctity of property.â In fiqh there is a distinction between transactional law (muÊ¿ÄmalÄt) and religious obligations (Ê¿ibÄdÄt). For the faqÄ«h, God is the origin of property law even if the property law regulates fairly mundane matters. Property, even if owned by a private individual, is religiously sanctioned, as seen from the perspective of fiqh. Arguably, we could also say that part of the importance of religion is its role in giving legitimacy and validity to the order of property and social power in society. To this day ownership documents start with the basmala: âin the name of God.â Islam is conjured and invoked through the use and application of property law.
There are many terms for âpropertyâ and ârightsâ in fiqh, but by far the most significant are the terms milk or mÄl, both meaning ownership and the thing owned, and manfaÊ¿a (usufruct). When referring to a ârightâ in a more abstract sense, the term ḥaqq is also fundamental. As mentioned in the basic waqf model in chapter 2, manfaÊ¿a usually follows the asset (al-raqaba) and belongs to the owner (al-mÄlik), but in the very act of establishing a waqf, the milk and manfaÊ¿a are split into two separate concepts, resulting in important theoretical and doctrinal implications in legal theory (fiqh).
As mentioned at the beginning of chapter 2, only some waqfs are types of âdirect use waqfs,â that is, the object made into the waqf is directly used by the beneficiaries; for example, a single book given as a waqf. Many waqf assets are intended to be rented out, at times even in favour of other, secondary waqfs. These primary waqfs are typically agricultural fields that are rented out to local farmers in order to produce income for a mosque or a cistern (secondary waqfs). In the cities, houses for dwelling and shops in the market areas are also typical waqf income-producing assets that are rented out. In such waqfs, or clusters of waqfs, the act of leasing is an important part of the management of the waqf. Leasing is the activity that the mutawallÄ« undertakes that produces income and thereby secures the viability of the waqf and allows for its operation.
1.1 Leases in Waqf
One of the most significant and inherent problems of waqf legal theory and practices concerns issues of leasing, especially related to public waqfs. Ideally, the waqf should be rented out according to local fair rental rates, or the market price (ajr al-mithl, Ä«jÄr al-makÄn wa-l-zamÄn). This doctrinal principle is generally agreed upon in most law schools and by most scholars, as we see in this chapter. Historical and contemporary practices, however, are far from this ideal, for several reasons. As I elaborate further below, often the rent is well below local market rents. This tension is reflected in the fiqh literature, which balances between formulating rules for the ideal waqf and at the same time formulating pragmatic but efficient rules for actual waqf practices. These diverging rulesâthe ideal ones and the pragmatic onesâco-exist in an intricate interplay in the fiqh texts.
Over time the tenant gains more extensive rights in the waqf asset than the ideal theory would allow. Often the tenant invests in the asset from his private funds. For example, a tenant might use his own time and capital to maintain and restore the asset (the agricultural terrace, house or shop) that he rents from the mutawallÄ«. He might dig a new well to irrigate the agricultural field or install new shelves in the shop that he rents. If the value of this investment is not distinctly separate from the waqf asset, the waqf asset and the private asset of the tenant in practice become mixed (as discussed in chapter 7). When a tenant who rents an urban plot (Ê¿araá¹£a) of waqf land is allowed (by the mutawallÄ«) to build a house on that plot, the tenant cannot be expected to take his house and move after a year or two. His right to remain a tenant is complicated by the matter of how to distinguish what is waqf from what is the tenantâs private property. As we see in this chapter, this right to remain a tenant tends to be inherited, bought and sold, although this is extremely problematic according to the legal theory of waqf. The last two fatwÄs in chapter 7 illustrate that these kinds of cases do occur in privately administrated waqfs (waá¹£ÄyÄ), as they do in the absolutely public waqfs (al-waqf al-khÄliá¹£, muá¹laq), where tenants often have rights not anticipated in the basic, ideal waqf model.
If oneâs family has been tenants of the same waqf asset (for example, land) for generations, then the right of the family to continue to till the waqf land becomes customary. This is possible and the rent of the lease contract remains somehow stable compared to the value of the asset because many leases are undertaken with the understanding that a fraction of the yearly harvest (sharecropping, mushÄraka) will be part of the payment of the rent.5 In a stable agricultural society this is an effective legal solution. For example, a certain family has the right to rent a waqf field as long as they pay an obligation of, for example, one-quarter of the harvest to the waqf administrator every year. One problem is that such customary leases are not time limited, but open-ended and continuous and thus cannot easily be terminated by the mutawallÄ«.
The right to remain a tenant seems to be common in private leases, where this right is balanced against a âtermination feeâ (Ê¿inÄʾ), which the landlord would have to pay to the tenant if he terminates the contract.6 Such a termination fee is also often connected to the investments the tenant has made in the asset. In leases of urban plots, this problem becomes more evident since the rent is often a fixed yearly sum. Inflation causes this sum to become relatively cheaper over time unless the rent is raised. A peculiar, but very common practice in contemporary urban waqf leases involves splitting the lease into an immediate and a deferred lease (muÊ¿ajjal and muʾajjal). This equals a one time âentrance feeâ and a yearly lease, like the termination fee (Ê¿inÄʾ) in private leases. Such an âentrance feeâ and a promise to remain a tenant gives the lease a sense of permanency, almost like a sale. This is very practical for the mutawallÄ«, who then has access to cash in advance of the otherwise yearly leases. In ḤanafÄ« areas this phenomenon is termed ḥikr, aḥkÄr or ijÄratayn, âdual lease.â7
In ZaydÄ« fiqh these issues have been debated for centuries; in this chapter I present the historical legal debate over a specific rule related to this issue, the so-called âthree-year maximum lease rule,â or simply the âthree-year rule.â The three-year rule can thus be seen as a âcorpusâ of knowledge, the trajectory of which can be followed through generations of legal experts. Further, I show how this rule is used in other legal fields such as codification and also in legal and administrative practices today. Over time, we see a complex interplay between the ideal doctrines on one hand and the need for a law that addresses the legal problems found in the ârealâ world, and legal solutions to these problems on the other hand.
The three-year rule is just one rule in the form of a sentence, among other rules in the waqf chapter.8 Other rules and other chapters in the corpus of fiqh follow their own historical trajectories. Therefore, we cannot generalize the trajectory of the three-year rule to represent the trajectory of all waqf rules, or all rules in fiqh, however, the method of focusing on one rule only, and on its trajectory and its use in time and space, provides us with a systematic methodological perspective that allows us to see, understand, and describe the complex context of fiqh, law, and legal knowledge. In the last part of the chapter I focus on other issues and rules related to the problem of leases, those which do not directly relate to the three-year rule, but that are indirectly relevant. The chapter is thus divided into three main parts:
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The genealogy and trajectory of the three-year rule;
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The use of the three-year rule in the fields of codification and legal and administrative practices; and
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Other important issues in waqf lease law and practices.
2 The Genealogy and Trajectory of the Three-Year Rule
The basis of the legal problem starts with the norm that a waqf should be rented out according to the market price. The reason for this is clear: if it is rented out for less than the market price, the rent will benefit the tenant and he will profit at the expense of the waqf. The lease is a contract between two parties, one in which the ownerâin waqf issues, this means the representative of the owner, the mutawallÄ«âsells the right of use for a specific period. In a normal (non-waqf) lease, it is not illegal to rent something at rates below market rents. In waqf leases, however, the case differsâthe waqf must be managed as efficiently as possible to maximise its income and thereby respect the will of the founder and the need of the waqf. Ultimately, this is an issue of respecting God, who is doctrinally the private owner of the waqf.
In order to provide the mutawallÄ« with the legal power to demand market rent (ujrat al-mithl) from the tenant, classical ZaydÄ« fiqh suggests a relatively short lease time, usually three years, because this enables the mutawallÄ« to say to the tenant: âthe lease contract period has now terminated, you have two choices, accept the new lease contract, or leave the land and I will rent it out to someone who can pay more.â Thus, a rule that waqfs cannot be leased for longer than a specific period is quite a useful instrument for the mutawallÄ« and the waqf. However, neither the QurʾÄn nor the Sunna states a rule specifically for this purpose. This means that according to the ShÄfiÊ¿Ä«s, ZaydÄ«s, and neo-SunnÄ«s or traditionists,9 such a rule is necessarily a human construction that legal theorists must work with in the best way possible and so they base this on other types of arguments. How, if at all, such a human construction can be valid as Islamic law is indeed a point of criticism put forward by some jurists, as we see below.
As mentioned, in Yemen there is a strong custom of sharecropping leases; this is also true for waqfs. There are advantages to this for both parties. It creates less administrative work for the owner because he does not have to constantly inspect the work of the tenant and they can build a relationship of trust over time. The issue of asset maintenance is central; if this is delegated to the tenant, he naturally expects a lower rent. If this is normal in local non-waqf leases, then the fair rent, or the normal local land rent would be lower than in a lease in which the owner is responsible for maintenance. It seems that in waqf leases the job of maintaining the asset is usually assigned to the tenant, but subject to the inspection and approval of the mutawallī, who is ultimately responsible.
Instead of hiring external maintenance, the tenant can take care of the asset as it if it were his own agricultural field or shop. In actual, applied law and practice there are several different categories and types of lease and in some forms of lease, the tenant has the right to remain a tenant. This refers to the way people engaged in leases historically and how these leases were decided upon by judges, be they Islamic or customary. âIslamic lawâ has contradictory views on matters of sharecropping.10 This is a good example that shows that a great number of diverging principles and rules are presented in fiqh, while applied law, by contrast, is fairly simple, applicable, and does not involve a direct extrapolation or deduction from doctrinal fiqh debates, but is much more practice oriented.
This right to remain a tenant can be very lucrative for the tenant if the rent is below market price, but not if the rent is near market rates. This right has many names: in Yemen it is often called ḥaqq al-yad, meaning âthe right of the handâ or a slightly more formal concept referred to in fiqh as Ê¿inÄʾ. As noted at the end of chapter 7, this right can be bought and sold according to the ZaydÄ« law school as presented in validated fiqh and fatwÄs. Since waqf cannot be bought and sold, the use of the word âsellingâ (bayÊ¿), is controversial and the term âtransferâ (naql) is often used instead. In an ideal waqf, it is unheard of for a waqf tenant to have such a right, but in practice it is common. This is something the jurists have had to face in recurring court cases and questions for fatwÄs. They must try to regulate the issue as much as possible instead of just denying the existence of the problem. Waqf lease is thus different from other leases in that a component of piety and morality is added to normal lease law. This morality centres on the question of the very purpose and essence of waqf and bending those ideals subsequently involves bending the very concepts of community, morals, rule of law, and religion.
There is a wide span of possibilities between ideal waqf rules and more pragmatic legal rules. How can rules be formulated and discussed in the same text without undermining the legitimacy of each? Some scholars take the side of the waqf, saying that long lease terms are undesirable and therefore should be illegal; others are more pragmatic and examine the question of the degree of validity of the âright of the handâ in waqf leases.
2.1 The Definition of a Rule
The fact that the three-year rule is a legal âruleâ (ḥukm, aḥkÄm) means that it seeks to regulate a hypothetical case or social act in its context. It is not only the core of the rule, as a sentence that states âact A is legalâ or âact B is illegalâ; it also refers to the context around the rule, other related rules, the legal discourse it is part of and actual practical issues on the ground. Typically, much of this context is clarified in the sharḥ (explanation, commentary), while the rule itself is given in short, almost symbolic form in the matn.
In leases of waqf property, the main issue is to identify what must be fulfilled in order to produce a valid lease contract. A lease is a contract, just as the creation of the waqf is a contract. Both regulate the transfer of a set of rights. The totality of necessary conditions is not limited by problems in the real world. Sometimes these problems are so interconnected that it is difficult to separate the rules from each other. In practice they tend to âclusterâ and such clusters tend to be abbreviated in the mukhtaá¹£ar genre into single separable sentences. In the matn, the rules follow each other on a linear string of fairly short sentences separated only by the particle âandâ (wa). (Rules are often related to each other with criss-crossing intertextual ties and times subordinated to each other, but in the matn they come as pearls on a string in a linear manner that makes them easier to form into a corpus that has enough structure to be taught and learned, quoted, and claimed.) The connotations of the word âruleâ in Arabic (ḥukm) lead the reader to think of something that has already been judged to be valid. The same root and even the same word can also be used for an individual court decision. In the hierarchy of the legal norms ranging from doctrines and principles, the rule is the lowest level, the most basic building block of fiqh which is often called âbranchâ (farÊ¿, pl. furÅ«Ê¿), as if on a tree. Or, perhaps, according to Ibn al-Murtaá¸Äâs title, a flower on the branch.
2.2 The Three-Year Rule
The three-year rule is a delimited, individual, legal rule (ḥukm) that is supposed to be applied to all lease contracts (ijÄra) covering waqf. Still, there are other sub-rules, which are necessary in order to solve problems in real situations, and related rules. Because of the rather systematic arrangement of the fiqh works, it is easy to find the rule in question in other works. After the KitÄb al-AzhÄr, most ZaydÄ« fiqh works follow the same structure.
The three-year maximum lease rule is designed to enable the mutawallī to terminate the lease; he has the power to threaten to change the tenant if he does not provide full market price rent. Furthermore, the rule not only helps the mutawallī in cases of need; it actually demands that the mutawallī always use this rule, in the interest of the waqf. The rule states that any lease contract not following the rule is invalid and thus not legally binding. Baber Johansen states:
It is evident that, from a very early date, the jurists tried to protect certain types of properties against the disadvantages, which arose from the divergence of the contractually fixed rent (musammÄ) from the âfair rentâ (ajr al-mithl). Already in the ninth century KhaṣṣÄf discussed the problems that resulted from the fact that the contractually fixed rent (musammÄ) of waqf land fell below the rent level of comparable lands in a way that constituted a laesio enormis (ghabn fÄḥish) to the interests of the waqfâ¦.
Restricting the period of tenancy was another way of protecting the interests of the lessor against the dangers that result from the divergences between contractually fixed rent and the âfair rent.â This possibility is already discussed during the eighth century. From the ninth century onwards, Hanafite jurists tried to restrict the period of tenancy with regard to waqf lands and big estates. Some of them formally interdicted periods of more than one year, others of more than three years. Still others wanted the qÄá¸Ä« to examine regularly the difference between the contractually fixed rent and the âfair rent.â11
The three-year rule is thus a legal instrument that enables the mutawallÄ« to carry out the lease in the best possible way for the waqf. A tenant that stays for a long time may start to feel that the asset he is renting is âhis,â especially if he has undertaken repairs from his own pocket. In a stable agricultural society, there will not be much inflation, however, over the long term, prices tend to fluctuate and rise. When the mutawallÄ« wants to raise the rent to market rent,12 as he is theoretically entitled to, the tenant will tend to refuse the increase and refer to the rent in the contract. It is the very lease contract that is the target of the three-year rule and it simply states that lease contracts can be legally valid for only three years.
The following outlines how the three-year rule is discussed in Zaydī fiqh.
3 The Three-Year Rule in Zaydī Fiqh: A Chronological Presentation
3.1 The Three-Year Rule in the Instiá¹£Är and NÅ«r al-Abá¹£Är
Perhaps the most important ZaydÄ« fiqh work before the Sharḥ al-azhÄr is the Intiá¹£Är Ê¿alÄ Ê¿ulamÄʾ al-amá¹£Är by the famous Imam al-Muʾayyad bi-LlÄh YaḥyÄ b. Ḥamza (d. 749/1348 or 49). Since the chapter of waqf is considered lost, and thus not provided in the edited and printed version, here the NÅ«r al-abá¹£Är al-muntaziÊ¿ min KitÄb al-Intiá¹£Är, a mukhtaá¹£ar (abridgement), was consulted.13 The lease rule is found in the waqf chapter of the mukhtaá¹£ar:
It is allowed to rent out the waqf (ijÄrat al-waqf) for a short period such as fifty years. It is reprehensible with a long [lease period] unless the waqf is of the awqÄf that are well known and that do not become mixed (allatÄ« lÄ taltabisu) over time, then there is no reprehensibility.14
Imam YaḥyÄ b. Ḥamza does not provide the three-year rule, but rather a similar rule with another time estimate: fifty years. Imam YaḥyÄâs text does not quote al-HÄdÄ« at all. After this work, almost one hundred years passed before the fiqh work, analysed below, appeared.
3.2 The Three-Year Rule in al-Baḥr al-ZakhkhÄr
Ibn al-Murtaá¸Ä (d. 840/1437) wrote a short and concise passage concerning the three-year rule in al-Baḥr al-zakhkhÄr, presumably before he wrote the KitÄb al-AzhÄr:
Topic (masʾala): It is valid (yaá¹£iḥḥu) to rent it out (taʾjÄ«ruhu), based on ijmÄÊ¿,15 since its usufruct is the property of the beneficiary (tadhhÄ«b), less than three years only, similar to the period of demarcation (taḥjÄ«r) (Y) [Imam YaḥyÄ b. Ḥamza:] And it is valid [to rent it out] up to fifty years. A long [lease] period is reprehensible whenever [the long period] causes confusion (iltibÄs) [between waqf and] private property, such as in the period of pledge (rahn).16
The text is concise and clear. The usufruct (manÄfiÊ¿) is the property (milk) of the beneficiary (al-maá¹£rif) âaccording to the madhhab.â Most of the arguments and references found in the quotation are treated in detail further below. The way the three-year rule is treated in al-Baḥr al-zakhkhÄr is representative of the work as such and shows why al-Baḥr al-zakhkhÄr is a respected legal encyclopaedia even todayâit is clear and concise and it gives the most significant rules with their most significant sources of validity.
3.3 The Three-Year Rule in Ibn al-Murtaá¸Äâs KitÄb al-AzhÄr
The three-year rule falls under one of the nine sections (faá¹£l, fuṣūl) of the âchapter of waqf,â in a section called the âSection on clarification of what the mutawallÄ« is allowed to do and what he is not [allowed to do].â17 The section is further structured into ten rules and the three-year rule is the sixth of these: âAnd to rent it out for less than three years.â18 The matn is given in bold; it is so condensed in the text that it hardly makes sense without contextual information.
3.4 The Three-Year Rule in Ibn MiftÄḥâs Sharḥ al-AzhÄr 19
As mentioned in chapter 4 concerning the texts used in this study, the sharḥ of Ibn MiftÄḥ (d. 877/1472) appears on the margins of the matn of the KitÄb al-AzhÄr. If the matn had not been printed in bold in the 2003 edition or in brackets in the 1980 and earlier editions (i.e., in red ink in the manuscripts), the reader would not have been able to see two separate texts. This merging of the two texts is perhaps mainly a matter of style and eloquence. Ibn MiftÄḥ treats the rule in two stages, as is common in the treatment of all the rules in his sharḥ: First he âdecompressesâ the text by adding some words of explanation, and then he discusses the sources of its validity. The two stages are given separately in the analysis below, thus first stage one:
And the sixth [rule] is that the mutawallī of the waqf is entitled to rent it out [the waqf asset] for a defined period, however for less than three years only.
The three-year rule in the Sharḥ al-azhÄr (1980 edition), 3:497.
In this first stage, in the âdecompressingâ of the matn, the reader is given enough words to make meaning from the text, as the matn alone does not give enough meaning unless the reader knows the topic beforehand. The decompression explains, specifies, and expands the matn. However, both in the âexplanation stageâ and the âdiscussion stageâ below, the author is rather economical with words. In general, his extra words make the text more readable and understandable.
The second stage, the âvalidation stage,â or the âdiscussion stage,â is a presentation of other scholarsâ views on the problem, further specification, potential alternatives in the form of rules, and the validity of each of those alternative rules and specifications. The author introduces this second stage by adding a short contextual explanation as to why this rule is needed in the first place:
Because a deviation from this [rule] leads to confusion between what is waqf and what is private property (milk).20
It should be noted that the legal issue as such is presented as a problem that occurs because of social forces in the real, mundane world, whence the need of a rule; arguably, the rule does not originate in the texts of revelation, and certainly not in âclear text.â Some informants point out (but not specifically related to this rule) that such rules are also ârevealed,â if not in the texts (nuṣūṣ) of the holy sources, then through human reason given by God. Quite a few ZaydÄ« informants made an explicit point that the role of reason (Ê¿aql) is fundamental in the production of law, be it based on the holy texts or not.21 This way a âsecularâ problem can be solved by a âsecularâ rule, yet still be part of a tradition of religiously validated law. Here the concepts of âsecularâ and âreligiousâ seem to have limited value.
Then Ibn MiftÄḥ starts an elaboration, discussion, and validation starting, as usual, with the âschool founderâ al-HÄdÄ« (d. 298/911):
Al-HÄdÄ« stated: It is valid to rent out a waqf for a short period such as a year or two, but not for a long term because that is reprehensible (makrÅ«h).22
Al-FaqÄ«h YaḥyÄ l-Buḥaybaḥ said: The reprehensibility (al-karÄha) is removed if the waqf is well known (mustafÄ«á¸an) [in the knowledge of the local community].23
This last argument has been validated with tadhhīb, as can be seen in the figure above. The fact that the waqf is well known in the local community means that there is no danger that the tenant and the mutawallī would be able to cheat the waqf through low rent. If the waqf assets are not well known among the local inhabitants, then the assets are more in need of protection through short lease contracts only. Such local knowledge of waqf assets and their individual legal status is also called shuhra; we return to this below.
Al-Faqīh ʿAlī said: Or, the witnessing of the lease is renewed (5) every three (6) years.24
This argument also carries the tadhhÄ«b sign. Both of these are signs that were omitted from the Sharḥ al-azhÄr (1913â14 edition), but which reappear in al-KuḥlÄnÄ«âs handwriting in the Sharḥ al-azhÄr (1980 edition), and also subsequently in the same places in the 2003 edition. This means that they override, at least in certain aspects, the main rule in the matn. It implies that the three-year rule is not absolute if the contextual conditions are right; if the waqf is well known in the local community it is not reprehensible to rent it out for a long period. We can see that the sharḥ, or more specifically, the validation signs combined25 with the sharḥ, override the matn in several aspects, specifying it, and adding a new layer of validated meaning.
Then, Ibn MiftÄḥ, the author of the sharḥ, returns to the active voice and explicitly agrees with what has been said so far and adds:
Yes, so if [the waqf asset] is rented out for a long period, this is valid, though reprehensible, as he stated in the [KitÄb] al-LumaÊ¿.26
Here Ibn MiftÄḥ states a type of summary or conclusion, namely that a long-term lease is legally valid as a contract before a judge, but that it is morally reprehensible (makrÅ«h) before God on the day of judgement. This division between law and morals is problematic, as exemplified immediately below. However, it shows that jurists did seek to separate legally valid, contractual law from the realm of morals and religious implications. In a sense, both are religious in their ultimate anchors of validity, but the admission that contractual law does not have to follow the same moral standards is an admission of some aspect of âsecularâ law. The same issue can be seen in al-HÄdÄ«âs view above, but it is not entirely clear if he meant that a long-term lease is invalid because of its reprehensibility. There are five moral categories; the two negative types are makrÅ«h (reprehensible) and ḥarÄm (forbidden). Making the determination that something is ḥarÄm is quite rare and the texts of revelation have to be clear about the matter. There is only one negative contractual, legal category: the invalid (bÄá¹il, ghayr á¹£aḥīḥ).27 The whole waqf chapter of the Sharḥ al-azhÄr follows the same pattern: it discusses contractual law regulating the transfer of rights from one actor to another actor. In some places in the waqf chapter and in some rules, the issue of morals does become entangled with contractual law.
The two previous arguments are validated later by tadhhÄ«b signs and by the concluding sentence of Ibn MiftÄḥ. If we look back at what Ibn al-Murtaá¸Ä said in al-Baḥr al-zakhkhÄr, we see that he did not take a very firm stand on the three-year rule. And shortly after this was written, Ibn MiftÄḥ was just as vague on its validity. Thus, the question is, why did he choose this rule specifically, and it alone, in the matn? Why quote it in the first place if he did not agree with it? We cannot answer this fully, except to say that he knew that his matn was a work that would be studied by beginners and used as a scaffolding and frameworkâit would never stand alone in the academic field of fiqh. It must always be read together with one or several explanations and commentaries (shurūḥ). The knowledge of exactly the correct rule can never be compressed into one sentence and still carry the same validity as fiqh knowledge.
Ibn al-Murtaá¸Ä wrote his own sharḥ, al-Ghayth al-midrÄr,28 but this work is seldom quoted. Ibn MiftÄḥ ends the commentary on the three-year rule with a pragmatic argument in which he quotes his contemporary colleague from ThulÄʾ, al-FaqÄ«h YÅ«suf (d. 832/1429, who did not become especially well-known in later periods):
Al-FaqÄ«h YÅ«suf said: If the tenant (al-muʾajjar lahu) is the possessor of the usufruct (á¹£Äḥib al-manÄfÄ«Ê¿) then the longer lease contract is valid (9), and if he is in authority (walÄ«) such as a mutawallÄ« of mosque waqfs and the like, then the validity of the lease contract necessitates that there can be identified an interest for the mosque in the long lease and similarly, that this interest (10) cannot be achieved in a short lease, and if [an interest cannot be established for the mosque in a long lease], the lease is suspended (fÄsid) (11) from the beginning, as stated in the [book called] al-ZuhÅ«r.29
First, this quotation should be seen as two parts: The first deals with the case in which the beneficiary is the one renting the waqf asset; in such a case al-FaqÄ«h YÅ«suf states a long-term lease is valid. The question here is his use of the term âpossessor of the usufructâ (á¹£Äḥib al-manÄfÄ«Ê¿). In a strict legal sense, this cannot be anyone other than the beneficiary (al-maá¹£rif, al-mawqÅ«f Ê¿alayhim). This probably refers to the beneficiary of a family waqf or something similar to the waṣīya-waqf treated in chapter 7. If so, the descendants of the founder are also part beneficiaries, or, to state it in a legally correct manner, they are âholders of usufructâ (á¹£Äḥib al-manÄfÄ«Ê¿). In any case, it refers to a waqf in which the tenant and the beneficiary have a very close or overlapping role.
The second part of his argument, which supports the interpretation that the above relates to family waqfs or waṣīya-waqfs, switches to pure public waqfs. He uses the example of âmosques and similar [institutions]â and also uses the words: âAnd if he is a walÄ«, such as a mutawallÄ« for the mosque waqfs.â The word walÄ« here must refer to âa person with a general authority, acting for the interest of the society (or religion).â It can also be synonymous with the term mutawallÄ«, but perhaps more in the sense of an imam-appointed mutawallÄ« of the public awqÄf. In any case, in this footnote he distinguishes between private waqfs and public waqfs and says that a long-term lease is allowed in private waqfs, while in public waqfs he adds a limitation, that a long-term lease can only be made if a preponderant interest can be identified that outweighs the disadvantage. And he adds, âif this interest cannot be identified, then the contract is suspended (fÄsid).â
HÄdawÄ«-ZaydÄ« contractual law is different from its SunnÄ« counterparts in that it distinguishes between three validities of a contract: valid (saḥīḥ), invalid (bÄá¹il), and between the two there is a third with a conditional status (fÄsid). A contract that is fÄsid is temporarily invalid or suspended because one or more of its components or conditions is not fulfilled. If this component is fulfilled under the correct circumstances, then the whole contract takes legal effect once more.30
Al-FaqÄ«h YÅ«suf does not specify exactly how this âinterestâ should be defined or converted into a contractual condition. It is not at all controversial that âinterestâ supersedes the three-year rule, since interest or utility (maá¹£laḥa) is central as a source of law if there is no âclear textâ available in the revelation. This is also specifically pointed out by Ibn al-Murtaá¸Ä at the end of the waqf chapter of al-Baḥr al-zakhkhÄr, where he states that most of waqf fiqh is indeed a matter of maá¹£laḥa (we return to this matter in chapter 8).31 Although not stated explicitly, it is probably the judge who is supposed to identify the maá¹£laḥa that al-FaqÄ«h YÅ«suf calls for, since a waqf contract is valid unless it is taken to a judge to be contested.
This ends Ibn MiftÄḥâs discussion of the three-year rule. In sum, four authorities are quoted, including al-HÄdÄ«, and two books are explicitly mentioned. The arguments overlap slightly and their views diverge. Of the three scholars quoted in addition to al-HÄdÄ«, al-FaqÄ«h YÅ«suf (d. 832/1429), was a contemporary of Ibn MiftÄḥ (d. 877/1472). The two others, al-FaqÄ«h al-Buḥaybaḥ and al-FaqÄ«h Ê¿AlÄ«32 were earlier in time and are not referred to as often after the sharḥ was composed. There are several such figures33 who are only referred to by advanced ZaydÄ« scholars today; in other ways, they are âlostâ from the debate.
In all editions of the Sharḥ al-azhÄr, except the new 2003 edition, most proper names are not given in full, rather they are indicated with one letter abbreviations. Where the Sharḥ al-azhÄr 2003 edition reads âal-FaqÄ«h Ê¿AlÄ« stated,â all other editions remain in the passive âit has been stated [by] Ê¿ââ (qÄ«la Ê¿), where the letter Ê¿ayn stands for Ê¿AlÄ«, the letter f for al-FaqÄ«h YÅ«suf, etc. (see figure 12 of the Sharḥ al-azhÄr 1980 edition above).
We do not see any references to scholars in other law schools at all. Ibn MiftÄḥâs debate, specification, and discussion is purely local and ZaydÄ«. This does not mean that other works do not contain such references to the origin of the three-year time period and to external authorities and sources. What we can assume is that Ibn MiftÄḥ did not intend to do this in his sharḥ. It is not the ultimate, all-incorporating sharḥ, it was and is a practical sharḥ for faqÄ«hs at the intermediary level. It is only later that this particular book, for a variety of reasons, became a reference work that continued to be added onto, in the margins, such as in the margins of the manuscript of al-ShawkÄnÄ« and al-Suhayl that was chosen for the first printed edition. In that time span of around 350 years, from around 1450 until 1800, additional views were added as glosses. And, just as important, the validation signs were added. This is the third layer, which was undertaken by multiple authors; I treat this briefly below.
3.5 The Three-Year Rule in the Ê¿Izz al-DÄ«n FatwÄ Collection
The three-year rule is mentioned once in a question in the fatwÄ collection of Imam al-HÄdÄ« Ê¿Izz al-DÄ«n b. al-Ḥasan (d. 900/1495). The question in the fatwÄ is long and complicated and deals with a family waqf in which one of the family members rented out his share (his right to use some agricultural fields) for 100 years and a âjudge from the lands of TihÄmaâ judged that the lease was valid. Then, this family member died and his brothers wanted to make the lease invalid, presumably so they could end the lease contract and take on another tenant. The question leads to several sub-questions, for example, can the three-year rule be used to invalidate the lease contract? In the fatwÄ made by al-HÄdÄ« Ê¿Izz al-DÄ«n, he states that this is a family waqf and the beneficiary is the owner of the usufruct; therefore he can lease it in whatever way he wishes (quite in line with al-FaqÄ«h YÅ«suf above). This answer points to the problematic status of a family waqf: the property belongs to God, yet the right of use is transmitted from generation to generation (yantaqilu ilÄ warathat al-wÄqif bi-l-waqf). If there was a common mutawallÄ« for all of the waqf and all of the beneficiaries in question, and if the mutawallÄ« did not rent out the waqfs according to the wishes of some beneficiaries and serve their interests, the judge should take his place and be the mutawallÄ« (tawallÄ l-naáºar al-ḥÄkim).34 Imam Ê¿Izz al-DÄ«n does not mention the three-year rule in his answer, probably because this was a family waqf. The âjudges of TihÄmaâ would probably be ShÄfiÊ¿Ä«s, who do not have the restriction of the three-year rule, as I elaborate on towards the end of this chapter. We can interpret the question above as an attempt by the beneficiaries to use the letter of the law selectively, and although the three-year rule was not absolute, nor very âpowerful,â they clearly believed that it could serve as the basis of a legal argument before a ZaydÄ« judge. We do not know which geographical area this waqf was related to, that is, if it was located close to the ShÄfiÊ¿Ä« lowlands. Al-HÄdÄ« Ê¿Izz al-DÄ«n mainly ruled in the northern areas of the highlands.
In the fatwÄ, also related to waqf, immediately preceding the one above, the KitÄb al-AzhÄr is cited in both the question and the answer; this demonstrates that it was well-known at this time.35 We shall now return to the glosses on the margins (âfootnotesâ) that accumulated in the Sharḥ al-azhÄr over the following centuries.
3.6 The Margins and Footnotes in the Sharḥ al-AzhÄr
The Sharḥ al-azhÄr became the most used fiqh work in ZaydÄ« Yemen; over time comments, specifications, and notes36 were added in the margins. Many of these notes were made by anonymous authors, though quite a few were made by known scholarsâthis is often pointed out at the end of the note as an indication of validity. When the Sharḥ al-azhÄr was printed for the first time in 1913â14, the edition was based on a manuscript in which al-ShawkÄnÄ« had copied out the KitÄb al-AzhÄr/Sharḥ al-azhÄr and his student Ê¿AlÄ« b. Ê¿AbdallÄh Suhayl (d. 1835) wrote the commentaries and notes. To a large extent, the content of these notes were well-known in the scholarly community and in other manuscripts of the Sharḥ al-azhÄr. These commentaries and notes form the third layer of text and stem from the period that lasted from Ibn MiftÄḥ to Ê¿AlÄ« b. Ê¿AbdallÄh Suhayl.
Photo of page 3:497 in the Sharḥ al-azhÄr (1980 edition)
In order to better remember the sequence of these footnotes in the Sharḥ al-azhÄr, below I give the sharḥ one more time in its entirety. The matn is given in bold. All quotations are taken from the 2003 edition, in which the names of people are given in full.
And the sixth [rule] is that the mutawallī of the waqf is entitled to rent it out (1) [the waqf asset] for a defined period, however for only less than three years only (2), because a deviation from this [rule] leads to confusion between what is waqf and what is private property (milk).
Al-HÄdÄ« stated: It is valid to rent out a waqf for a short period such as a year or two, but not for a long term because that is reprehensible (makrÅ«h). (3)
Al-FaqÄ«h YaḥyÄ l-Buḥaybaḥ said: The reprehensibility (al-karÄha) is removed if the waqf is well known (mustafÄ«á¸an) [in the knowledge of the local community]. (4)
Al-Faqīh ʿAlī said: Or, the witnessing of the lease is renewed (5) every three (6) years.
Yes, so if [the waqf asset] is rented out for a long period (7), then it is valid though reprehensible (8), as he stated in the [KitÄb] al-LumaÊ¿.
Al-FaqÄ«h YÅ«suf said: If the tenant (al-muʾajjar lahu) is the possessor of the usufruct (á¹£Äḥib al-manÄfÄ«Ê¿) then the longer lease contract is valid (9), and if he is in authority (walÄ«) such as a mutawallÄ« of mosque waqfs and the like, then the validity of the lease contract necessitates that there can be identified an interest for the mosque in the long lease and similarly, and that this interest (10) cannot be achieved in a short lease, and if not, the lease is suspended (fÄsid) (11) from the beginning, as stated in the [book called] al-ZuhÅ«r.
The system of footnotes comes from the first printed edition of the Sharḥ al-azhÄr (1913â14). Before that, numbers were at times used, but the notes were written in the margins of the sharḥ, not under it. There are some comments or notes that are notes on other notes, and sometimes there are several notes under one footnote reference. In the printed editions this is called a repeated footnote (ḥÄshiya mukarrara), and is given as an asterisk *, or as an asterisk between parentheses (*) in order to separate them. Below they are given as 1a, 1b, and so forth. and the footnotes are renumbered so that they start at number one, while in the printed versions the numbers start at number one on each printed page.
Footnote (1) (footnote 4 in fig. 12 above)
The first note discusses whether or not fruit-bearing trees that happen to be situated on the land are included in the lease contract or not. I do not address this issue here, since it is not part of the paragraph of the sharḥ dealing with the three-year rule.
Footnote (2):
âThe only reason for the estimate of three years is that it is the period that allows the possessor [of an asset such as land] to take full ownership, such as will be treated later. (Sharḥ Fatḥ)â
This note explains why the three-year rule has that exact time limit. The reason for the three years is not given in the KitÄb al-AzhÄr or the Sharḥ al-azhÄr, though Ibn al-Murtaá¸Ä does mention it in al-Baḥr al-zakhkhÄr, where he states that the three-year estimate comes from the similar three-year estimate in issues of demarcation (taḥjÄ«r).37
TaḥjÄ«r is a legal concept regulated in detail in fiqh; it refers to the act of visibly demarcating borders by using stones (ḥajar, pl. ḥajjara, taḥjÄ«r) or other border markers. According to the theory of Islamic and tribal law in Yemen, originally land is not âownedâ unless it is actively claimed and used. Otherwise, according to Islamic law, it belongs to all Muslims, and in tribal law, to all members of the tribe. There are many types and degrees of such âun-ownedâ land and the issue cannot be explored in detail here. In theory, such land may be claimed by anyone who wants to revive and use it. The act of revival mainly refers to making a new agricultural field in common barren lands, with the permission of the local community. It is also regulated under the so-called ârevival of barren landsâ (iḥyÄʾ al-mawÄt), which is encouraged in Islamic law.38
In the Sharḥ al-azhÄr, there is a âChapter of land revival and demarcationâ (BÄb al-iḥyÄʾ wa-l-taḥjÄ«r).39 It has its own section (faá¹£l), the âSection on taḥjÄ«r and its rulings.â The three-year rule in taḥjÄ«r means that once border demarcation stones40 have been placed to indicate that one has taken possession, that possession remains a right (ḥaqq) for the claimant until three years have passed and then the right becomes owned property (milk), as long as the land has been revived and used during that time. If anyone wants to protest, they must do so before the three years have passed. In the sentence dealing with the three-year estimate in taḥjÄ«r in the Sharḥ al-azhÄr, immediately after the word âthreeâ there is a footnote that refers directly to a ḥadÄ«th:
Concerning what was said about a man who made a taḥjÄ«r, then another man came and revived that land and the two quarrelled and went to Ê¿Umar, may God be pleased with him. Ê¿Umar wanted to give them his judgement in favour of the one who revived [the land] when a man told him a story about the Prophet: âThe right of the one who demarcates (al-mutaḥajjir) is valid until three years have passed,â and Ê¿Umar said: If I had not heard this, then I would have judged otherwise ([KitÄb] al-bustÄn).41
The ḥadÄ«th is never mentioned explicitly in the waqf rent issue, perhaps because the ḥadÄ«th is considered weak, or more plausibly, the analogy between the two rules (the three-year rule in taḥjÄ«r and three-year rule in a waqf lease) is too loose. The analogy is easy to understand in a broad sense, but the circumstances of the two cases are very different. While both deal with public property, waqf is a category of its own that can never be taken over by anyone simply by remaining on the land for three years. In waqf, even if hundred years pass, a testimony that this property is waqf is theoretically enough for it to revert to waqf. The concept of qiyÄs is not explicitly invoked here.
Footnote (1a)
Footnote (1a) is slightly complicated. It seems to be a question and an answer recorded during a study circle, as it ends with âexplanation by SayyidnÄ á¸¤asan.â The same person is quoted in footnote (9) below, which ends with: âby dictation of SayyidnÄ á¸¤asan.â These two notes seem to belong together and relate to the topic raised by al-FaqÄ«h YÅ«suf; namely that which concerns the case of a tenant who is also the possessor of the usufruct (beneficiaries in a private, family waqf). Further, the question centres on what happens to a lease contract when a new generation of beneficiaries takes over the âpossession.â Another confusing aspect relates to the origin of the footnote: the second half of the footnote did not exist in the 1913â14 edition, rather it was added by al-KuḥlÄnÄ« as a handwritten marginal note, then printed in the photocopied 1980 edition (see the lower right corner of fig. 12. above). In the 2003 edition, this handwritten note was made into a proper footnote and inserted into (1a). This is a good example of how a âlost marginal noteâ was âkept aliveâ outside the text and later reinserted.42
Footnote (2b)
Imam YaḥyÄ [b. Ḥamza43 ] (peace be upon him) said: it is reprehensible if it was more than five years. It has been stated in al-Baḥr [al-zakhkhÄr].44
When this is cross-checked with al-Baḥr al-zakhkhÄr,45 (given above) we see that Imam YaḥyÄ b. Ḥamzaâs view is indeed referred to, but there it is given as fifty years, not five. Can this mistake really have been made through all these editions of the Sharḥ al-azhÄr? Or is the mistake in the printed edition of al-Baḥr al-zakhkhÄr? As mentioned in chapter 4, the chapter on waqf from Imam YaḥyÄ b. Ḥamzaâs (d. 749 or 50/1348â49) multivolume fiqh work, the Intiá¹£Är, is lost. Only his mukhtaá¹£ar, NÅ«r al-abá¹£Är has the waqf chapter, which states: âfifty yearsâ (khamsÄ«n sana), not five.46
Footnote (3)
Reprehensibility (karÄha) is a hindrance (ḥaáºr), which prohibits legal validity if confusion (labs) occurs.47
âConfusionâ is here translated from the word labs, or otherwise iltibÄs, and is frequently used in the discussion of the three-year rule. This refers to the state that occurs when the rights of the waqf become mixed with rights of other persons in a way that causes confusion about what exactly belongs to whom in the local community of owners.
First, the footnote says that if something is reprehensible, that is, morally wrong (makrūh), then it is automatically also invalid, contractually speaking. However, the second half of the sentence specifies this further and says that this is only the case if there is confusion. The footnote has not been validated by tadhhīb.
Footnote (4)
That means: well known.48
This footnote is simply a lexical explanation for the word mustafÄ«á¸.
Footnote (5)
He stated it in the BayÄn [al-ShÄfÄ«], but did not ascribe it to anyone.49
Footnote (5a)
There is no point in renewal of the witnessing; the contract is contractually suspended (fÄsid) because of the longevity of the lease term.
Perhaps (laʿalla) that is so if this is not emphasized (ʿazm) (tadhhīb), and if the renewal is emphasized from the very beginning, then the contract is valid (q-r-z).50
The first half states that the long lease term only produces a âsuspendedâ (fÄsid) contract, not an invalid one. The second half is actually an independent note, again referring to the word in the sharḥ where it branches off, at ârenewal.â It states that if continuous renewal is âpointed outâ or âemphasizedâ (Ê¿azm), presumably in the lease contract, then it can still be valid. This last part of the footnote is validated both by tadhhÄ«b and taqrÄ«r, and in effect it totally overrules the whole three-year rule.
In the 2003 edition, it looks as if this is one note and the two sentences are separated by a full stop. However, looking carefully at the 1980 edition (fig. 12), we can see that the first sentence ends with the abbreviation âʾ-a-hâ (intahÄ) meaning end of quote. The author of the second note is less strict in his view and he is the one whose note has been validated.
Footnote (5b)
This is only so if it was rented out for money and the money was handed over covertly, however, if it was taken from a certain fraction of the harvest, then there is no need for witnessing because the yearly measuring of the harvest (muqÄsama) is sufficient. Dictation by ShÄmÄ« (q-r-z).51
This is an important legal elaboration, and the note is clear. It refers to different forms of leases, which impose different challenges that do not need to be treated as strictly equal. The yearly crop estimation of the harvest, measuring the tenantâs share according to the sharecropping fraction,52 and the tenant handing over the rent in kind to the waqf administrator is an act, and as such does not need any further contractual confirmation or definition. It is an act that consists of contractual elements and aspects and is partly âpublic.â The act of measuring and handing over the harvest confirms that there is a contract and it confirms the size of the rent as well as another public witnessing would. This is contrary to leases with fixed rents in cash; the payment of the rent khufiyatan (lit., âcovertlyâ) produces other challenges for the waqf lease situation, in terms of âpublicness.â It is this difference in contextual circumstances that is specified here and taken into consideration in this footnote. The author of the note is presumably chief qÄá¸Ä« Aḥmad b. Ê¿Abd al-RaḥmÄn al-ShÄmÄ« (1684â1759).53
Footnote (6)
Perhaps so with the emphasis on that [that the contract can be renewed every three years] at the time of the lease, and if not, the contract is as if it was not made. (A comment by al-Saḥūlī.)54
This note is handwritten between the lines in the Sharḥ al-azhÄr (1980 edition), something that can be seen in figure 11 above. It is given as a full footnote in the Sharḥ al-azhÄr (2003 edition). It has no validation marks. This note specifies that such a renewal can perhaps (laÊ¿alla) be valid, but only if it is pointed out in the lease contract or during the contractual situation (as a contract can also be oral) the first time it was made. Thus it is more restrictive than footnote 5b, which states a similar content. The absence of validation marks could stem from the edition of the Sharḥ al-azhÄr. The author of the note is the chief qÄá¸Ä« al-SaḥūlÄ« (d. 1209/1795), or he is the qÄá¸Ä« of Sanaa, YaḥyÄ b. IbrÄhÄ«m al-SaḥūlÄ« (d. 1060/1650). It could also mean that this was the law under al-SaḥūlÄ«, but that the madhhab later favoured the less strict position.
Footnote (7)
With the absence of confusion.55
This note is handwritten between the lines of the Sharḥ al-azhÄr (1980 edition). It means that if the waqf is rented out for a long period, and there is no confusion or ambiguity regarding the lease, then it is contractually valid though morally reprehensible.
Footnote (8)
Hindrance (ḥaáºr). (q-r-z)
This means that âmoral reprehensibilityâ (karÄha) is a hindrance to the contractual validity of the lease contract. The note is with taqrÄ«r (the letter q-r-z); this implies that if it is established to be reprehensible, then the contract is invalid. However, in the main text of the Sharḥ al-azhÄr al-Buḥaybaḥ is quoted, also with validation marks, stating that the reprehensibility is removed if the waqf is well known. This shows that the dialogue of scholars commenting on the main text and the footnotes, and even among the footnotes, is not systematic but continues to spiral on and produces consequences for all the other criteria.
Footnote (9)
The second note by SayyidnÄ á¸¤asan is given above in (1a), but here the end states that in contrast to a lease in which the mutawallÄ« is a beneficiary and thus owns the usufruct, not all mutawallÄ«s are in this situation (as in a public waqf, in which the mutawallÄ«s do not own the usufruct and thus are not free to set up any lease. In short, it points to the distinction between family waqf and âpublicâ waqf.
Footnote (9a)
The madhhab does not validate (tadhhīb) a lease contract in which confusion [between waqf and private property] is taking place. There is no difference between the possessor of usufruct and others [regarding this matter]. Muftī. (q-r-z).56
This is a response to footnote 9 above, which states that there is a difference between private and public waqfs in this matter. Any lease contract in which the exact status and identity of the waqf asset is endangered is simply invalid. This footnote is also thoroughly validated by both tadhhÄ«b and taqrÄ«r. We do not know who the âmuftÄ«â was, it could have been IsmÄÊ¿Ä«l b. HÄdÄ« l-MuftÄ« (d. 1198/1783 or 84).57
Footnote (10)
The concept of interest (maṣlaḥa) is valid when not countered by an equally strong disadvantage. This [the three-year rule] does not relate in any way with a specific number of years.
(The author states:) This is when confusion is not feared or [something] similar. The same [applies] to every single rule (ḥukm) of the sharÄ«Ê¿a; if it is countered by a disadvantage, then this leads to the invalidation of the rule, if it indeed were so. (From the book al-WÄbil)58
This note goes to the very foundation and origins of the rule and claims that the whole matter is simply one of maá¹£laḥa and contextual circumstances, and further, that this even applies to all rules of the sharÄ«Ê¿a. This footnote has not been validated. The last, âfrom the book called al-WÄbilâ59 was added by hand in the Sharḥ al-azhÄr (1980 edition).
Footnote (11)
That means: invalid (bÄá¹il).60
This last footnote clarifies that if a lease contract becomes fÄsid as a consequence of lack of interest or utility (maá¹£laḥa) for the waqf, then this lease is not only fÄsid (suspended), but also bÄá¹il (contractually invalid). This was stated earlier, but not as directly as it is here and not in relation to maá¹£laḥa. There are no validation signs on the footnote.
Before summing up, we should note the complexity of the legal discussion. Obviously, the result of the discussion, i.e., what the madhhab agreed on, is something different from the strict form of the three-year rule. It is easy to see that such a deep and academic legal discussion is not a textbook for beginning students, nor is it a manual for judges. The conversion of this complicated discussion into more simplified genres, such as al-TÄj al-mudhhab, is discussed below.
If we look at the explicit sources of validity for the footnotes above, we find five references to persons and five references to books. We also see concepts such as âconfusion,â âinterest,â âreprehensibility,â âinvalidity,â and various ways of describing hypothetical situations and how these situations can be defined in relation to the real world. Many of the arguments refer to each other in a web of cross references, making it difficult to portray all of them in a systematic manner. Yet they are presented one by one in a textual sequence. Some of the views or comments seem confusing and do not contribute much and one may wonder why they were included at all. The answer is probably that they have accumulated over the centuries and no one has had the authority to remove them, since most of them have some sort of âoriginalâ content and contribution, if only in the sequence of arguments and scope of terms used.
The fact that something was said, and not removed, also produces more counter-arguments than if the most polemical or obscure notes were simply removed over time. Such removals might have made the text more readable as a book; indeed, this is what Ibn al-Murtaá¸Ä did with his al-Baḥr al-zakhkhÄr, and al-Ê¿AnsÄ« did in al-TÄj al-mudhhab. The KitÄb al-AzhÄr is not a good example of this simplification, as it goes too far in simplification and abbreviation; rather it belongs to another genre, one in which the didactic qualities of the text are central, while books like al-Baḥr al-zakhkhÄr and al-TÄj al-mudhhab had different purposes.61 They both strike a balance between including and excluding arguments depending on their relevance. Each genre has its own criteria of validity and its own rationale for that validity. The Sharḥ al-azhÄr that appeared after Ibn MiftÄḥ is at the opposite end of the continuum, where the discussion of all the minute footnotes must be seen as a cumulative âresearchâ corpus; every statement is included and never erased. The Sharḥ al-azhÄr is a place where these minute details of legal knowledge are âstoredâ in a structured way, as they relate to the topic. This seems to be a purpose itself for the activity and practice of fiqh, in addition to an outcome in the form of new rules; it keeps alive a knowledge tradition and makes sense of it. But to a significant degree this becomes self-referential and one needs institutional frameworks and education to make sense of it fully.
As for the legal positions on the three-year rule, most footnotes allow for some degree of leniency under favourable circumstances. It is the definition of these circumstances that is the problem: What exactly is âfear of confusionâ and when does it happen? The discussion is circular in the sense that the three-year rule is an attempt to provide Muslims, not to mention the waqf, with a clear legal solution since the definition of âconfusionâ and âinterestâ is unclear. The three-year rule is an alternative to a rule that is too general and vague to be a rule. At the same time, the rule is perceived too rigidly, and many scholars seem sceptical toward it. This is what we get if we look at all the arguments in the debate. As I show below, the picture becomes clearer, and more useful in a legal sense if we isolate only those views âvalidated by the madhhab.â
3.7 The Three-Year Rule in the Taftīḥ
The Taftīḥ al-qulÅ«b62 by Muḥammad b. BahrÄn (d. 957/1550) is a commentary on a commentary (al-AthmÄr) related to the KitÄb al-AzhÄr. The Taftīḥ al-qulÅ«b was not published in the twentieth century, though it was clearly important as a fiqh work, just as the Sharḥ al-azhÄr was at the time it was written. The catalogue of the waqf library of the JÄmiÊ¿ al-KabÄ«r in Sanaa shows that there were many manuscripts of this work.63
The section dealing with the three-year rule in the Taftīḥ summarizes the whole discussion in the Sharḥ al-azhÄr much more concisely than the Sharḥ al-azhÄr does itself. Around this time, the mid tenth/sixteenth century, many of the footnotes of the Sharḥ al-azhÄr had not yet been written.
The author of the Taftīḥ starts with the final arguments made in the footnotes of the Sharḥ al-azhÄr, namely it begins with the issue of what is in the interest of the waqf. If it is feared that confusion of the tenantsâ rights might eventually lead to their ownership of the asset, even if the period is less than three years, then the interest of the waqf is threatened. But if this fear is not present, or if another disadvantage is present only to a small extent and balanced by a stronger interest, then the lease is valid. âThis is what can be concluded in this questionâ (hÄdha huwa taḥqÄ«q al-masʾala), the author says. Then he goes on to say that this is a re-alignment (Ê¿adl) of what Ibn al-Murtaá¸Ä said in the KitÄb al-AzhÄr, that is, it is an adjustment of the three-year rule:
⦠[W]hat is understood [from Ibn al-Murtaá¸Äâs text] is that it is always invalid to rent out the waqf three years and more and that it is always valid to rent it out less, and this is not so.64
He goes on to say that what is meant (al-murÄd) is rather what al-HÄdÄ« said in the Muntakhab (this is quoted in the Sharḥ al-azhÄr), that it is valid to rent it out for a short period, such as a year or two, but not a long period, as that is reprehensible.65 Then he adds the two additional rules without referring to whom they are ascribed; that the reprehensibility is removed if the waqf is well known and that the lease could be re-witnessed every three years.
In terms of content, there is not a lot of new material. But the sequence of arguments is much more clear than the post-Ibn MiftÄḥ Sharḥ al-azhÄr. The Taftīḥ is an example of works similar to the Sharḥ al-azhÄrâworks that the Sharḥ al-azhÄr âovertookâ in popularity. Another example of such a work is al-BayÄn al-shÄfÄ«, from almost the same time as the Sharḥ al-azhÄr, not consulted here.
3.8 The Three-Year Rule in al-ShawkÄnÄ«âs al-Sayl al-JarrÄr
Al-ShawkÄnÄ«âs view of the three-year rule is found in al-Sayl al-jarrÄr,66 a rule-by-rule commentary or critique of the KitÄb al-AzhÄr. The al-Sayl al-jarrÄr is structured in a âHe saidâI sayâ style with one answer for each rule. When al-ShawkÄnÄ« states âHe is sayingâ: he is referring to the author of the KitÄb al-AzhÄr, Ibn al-Murtaá¸Ä, but also implicitly to the wider HÄdawÄ«-ZaydÄ« tradition of fiqh. Although explicitly he structures his criticism only around the matn of Ibn al-Murtaá¸Ä, there is also a large corpus of sharḥ and commentaries for each of the rules he deals with. When he criticizes âthe fear of confusion between waqf and private propertyâ (see below) he does not directly criticize the matn of al-Murtaá¸Ä, but rather the sharḥ of Ibn MiftÄḥ (Sharḥ al-azhÄr) since Ibn al-Murtaá¸Ä (KitÄb al-AzhÄr) does not mention this at all. The nature of the text is very different from the Sharḥ al-azhÄr. It is univocal and he criticizes a text and a whole legal tradition at the same time. And he does this with confidence and style:
I say: there is no reason for this estimate [of exactly three years] and if interest is found in the continuation of the lease and in prolonging the period of the lease, then this is what must be done, and if the circumstances make it necessary to shorten the lease period for [the sake of] a recurring interest for the waqf, then so be it.67
This section simply refers to âcircumstancesâ (iqtiá¸Äʾ al-ḥÄl) and âinterestâ (maá¹£laḥa) just as many others have done before him, but he does not refer to any of these scholars. He continues:
And when it comes to validating this time estimate,68 just because of fear that the tenant will claim that the waqf is his property, what is more obscure than such a validation (fa-mÄ abÊ¿ada hÄdha al-tajwÄ«z)?69
The last rhetorical question refers to the validation (tajwÄ«z) of using âfear of a crimeâ as the source of a specific rule in the sharÄ«Ê¿a. Al-ShawkÄnÄ« vehemently claimed that only texts from the QurʾÄn and the Sunna can be taken as sources of law and he was reluctant to use maá¹£laḥa (and sources like it) as primary sources of law.70 He continues:
And indeed, the awqÄf assets are in general well known in the local communities (tashtahiru) and stand out (taáºharu), therefore they do not become confused with private property over time.71
When using the word awqÄf in plural, he means the many individual waqf lands and assets and not the concept of waqf. What is very important here, and indeed quite novel in the whole debate, is his simple denial of the existence of the problem of confusion (iltibÄs) of what is private and what belongs to waqf; this is the very problem that Ibn MiftÄḥ explicitly gives as the basis for the need for the three-year rule.72
And if this validation (tajwīz) is what came out of it, then he who is the administrator [of the waqf] can simply be given the same powers; let him just do what follows the interest of the waqf.73
By âvalidationâ (tajwÄ«z) he refers to the ascribing of validity to the three-year rule as a sharÄ«Ê¿a rule and the related three-year estimate. Al-ShawkÄnÄ« says that if they can say all this with no clear evidence and produce a sharÄ«Ê¿a rule out of it by means of maá¹£laḥa, then why not just say that the mutawallÄ« is allowed to act in the interest of the waqf, without having all these other rules and footnotes in the first place? Al-ShawkÄnÄ«âs style is polemical; he uses metaphors like âWhat is more obscure than â¦?,â much in line with his literary style in general. As for the topic of the rule as such, he does not seem to be very interested in it and does not mention the topic in other works.
4 The Three-Year Rule in Modern Yemeni Codification
As mentioned in chapters 2 and 4, the distinction between fiqh and codification is a fluid one. Because of the univocal voice and lack of discussion in al-TÄj al-mudhhab, I place it under the section of âcodification.â In support of this choice is the fact that al-TÄj al-mudhhab was written so that judges and students of law could more easily refer to the body of rules of ZaydÄ« fiqh. But, it is a work that is based solely on the âchosen rulingsâ from the madhhab, and the imamic decrees of Imam YaḥyÄ are only given as footnotes, although they are the ones that must be followed in court. The political factors behind the codification of the Sharḥ al-azhÄr are unclear and al-TÄj al-mudhhab presents itself as representing âthe juristâs lawâ in fiqh language. In any case, al-TÄj al-mudhhab is a borderline case between fiqh and codification.
4.1 The View in al-TÄj al-Mudhhab
Al-TÄj al-mudhhab was an attempt to simplify the reading and use of the Sharḥ al-azhÄr and was ordered by Imam YaḥyÄ.74 It is based on the matn of the KitÄb al-AzhÄr as a traditional matn and sharḥ combination; however, the chapters are organised slightly differently with a separation between Ê¿ibÄdÄt (worship) and muÊ¿ÄmalÄt (transactions), the waqf chapter being placed in the muÊ¿ÄmalÄt. References to persons and books are removed and only validated views are included. The treatment of the three-year rule is an excellent summary and repetition of the above discussion, in that it removes views that are either not validated by the madhhab or irrelevant according to the author:
And the sixth [rule] is that the mutawallÄ« is entitled to rent it out for a defined period of less than three years because more than this causes confusion between waqf and private property (milk). If the mutawallÄ« rents it out for more than three years, then this is invalid (kÄna dhÄlika maḥáºÅ«ran) and his guardianship is invalidated and the lease becomes invalid, be the tenant a possessor of the usufruct or the mutawallÄ«.75
Here we see that the author of al-TÄj al-mudhhab repeats the three-year rule and its related phrases from the Sharḥ al-azhÄr, and mainly in the more restrictive and âidealâ form. However, then he introduces a chain of conditions functioning as exceptions to the above rule, starting with âunlessâ:
⦠unless the waqf is well known or not feared to be confused with private property, or if the mutawallÄ« or his assistant takes the rent as a certain fraction measured out from the yearly revenue in the name of the waqf, then there is no significant objection (lÄ baʾs) to renting out the waqf for three years or more. The same applies if a long term lease is in the interest of the waqf such as in a potential increase in the rent, or restoration of what has deteriorated in the asset or improvement in [its] maintenance, then a three-year lease period, or more, is valid if there is at the same time no fear of confusion [between waqf and] private property and if, in the contract, it is emphasized that [there is] the possibility of a renewal of the witnessing of the contract (al-Ê¿aqd) every three years, [in which case] the lease is valid. It is not valid if the witnessing is renewed without this having been emphasized in the contract, because it [the contract] has become inactive (iná¹awat) by the suspended status (fasÄd) due to the long lease period.
Although the picture of exceptions is complicated, the rule is much easier to read than reading through all the footnotes of the Sharḥ al-azhÄr and taking into consideration all the validation marks. Actually, here we see that the author of al-TÄj al-mudhhab is loyal to the validated views of the madhhab, just as it claims. The element of discussion and dialogue is, however, absent and what remains is only a univocal, normative text without references to the origins of the validity. A reader must either accept the text as authoritative in its entity or reject it.
4.2 The View of the Three-Year Rule in the Taysīr
The three-year rule is noted in the TaysÄ«r in the same section of the chapter of waqf as in the other works based on the Sharḥ al-azhÄr. It is very short:
Section on the clarification of what the mutawallÄ« is allowed to do and what [he] is not allowed and what is obligatoryâ¦.
[Article] 720 ⦠It is allowed for him to rent out the waqf [for a period of] less than three years, not more than that, so that it [the waqf asset] does not become confused with other [assets].76
After stating the rule itself, this work lists the reason for the three-year lease rule: âso that it â¦â just like Ibn MiftÄḥ did. In addition, it has been given its own article; this makes it something closer to the typical modern codified law. The rule is presented in a much stricter form here than in al-TÄj al-mudhhab. None of the exceptions to the rule or references to maá¹£laḥa are givenâthis is an argument that the TaysÄ«r could not have been used as a law book on its own.
4.3 The Three-Year Lease Rule in the Decree of 1968
The next time the three-year rule is mentioned in codification is in the Republican decree no. 26 of 1968 concerning the organisation and responsibilities of the ministry of awqÄf and the regulations of its application:
Article 5: The waqf committee (lajnat shuʾūn al-awqÄf) is only responsible for:
First: Requests for exchange of assets (ibdÄl wa-istibdÄl) ⦠and renting out assets (aÊ¿yÄn) longer than three years. All this [can be done] without consulting the court (al-rujÅ«Ê¿ ilÄ l-maḥkama).
Second: The termination of long-term leases (inhÄʾ al-iḥtikÄr).
Third: Changing the beneficiaries of the public waqfs and their stipulations (taghyÄ«r maá¹£Ärif al-awqÄf al-khayriyya wa-shurÅ«á¹ idÄratihÄ).
Fourth: Other issues in which the minister finds it necessary to consult the committee â¦77
Immediately after the civil war and the fall of the imamate the new government assumed the same powers as that of a sharÄ«Ê¿a judge in waqf matters. It gave itself the right to enter into long-term leases and to end individual long-term leases that had already been made by buying out tenants and their rights, as is implied in the term âdual leaseâ or iḥtikÄr. It also gave itself the power to change beneficiaries and thus redistribute waqf funds, for example, from rich mosques to poorer ones. Here the way the three-year rule is mentioned indicates that the ministry or rather, its waqf committee, is allowed to disregard it even though they are very aware it exists.
4.4 The Three-Year Rule in the Waqf Law of 1976 and 1992
Interestingly, the three-year rule is found in the first waqf law of 1976 and in the same wording in the present waqf law from 1992, which is still valid today.78 It is also located under a section with an almost identical name as that of the corresponding section in Sharḥ al-azhÄr:
âThe third section: In what the mutawallÄ« must do and what is allowed for him and what is not allowed â¦â
Article 72: The mutawallī is not allowed to rent out the waqf asset or its properties for longer than three years, be it for ploughing [agriculture] or building. This does not prohibit the renewal of the lease in accordance with what is stated in the following article.
Article 73: The mutawallī is not allowed to rent out the waqf asset or its properties for less than the rent of the time and place [i.e., the local market rental rate].79
Here we see that the present waqf law takes the wording of Ibn al-Murtaá¸Ä in the KitÄb al-AzhÄr and keeps the three-year rule. By doing this, the law invokes the validity of the Sharḥ al-azhÄr and the tradition of ZaydÄ« fiqh. The first sentence states that the three-year rule is to be the norm, full stop. Then comes the exception that points to the possibility of renewing the lease and refers to the next article, which is also an article of its own. The second article states that the rent should be according to rates in the (free) market.
There are two law textbooks/commentaries used in the present-day faculty of sharīʿa and law that focus on matters of waqf. Of these two80 only the one by al-Qirshī comments upon the article:
Article 72: ⦠The explanation: The fixation of the period of three years is an ijtihÄd for the benefit of the interest of the waqf, and if not so, there is no text [from the revelation] imposing it. Implementing it is far easier with regard to what is rented out for agriculture than for buildings. However, the article does allow for the renewal of the lease regardless [of whether it is] for ploughing [i.e., agriculture] or building.81
This is what the student of modern waqf law learns. If they want to know more, they have to use the works mentioned previously in this chapter. Many students come from scholarly ZaydÄ« families, but few are comfortable investigating the fiqh debates on their own. Al-QirshÄ« calls the three-year estimate an ijtihÄd. He does not state exactly why he uses the term ijtihÄd; it is likely that he is simply pointing out that the three-year rule is not part of any of the texts of revelation and that it is humanly âconstructedâ and therefore does not have absolute validity, in his view. The ease with which he invokes ijtihÄd is also somehow similar to the ease with which he and al-WaáºáºÄf invoke qiyÄs, as treated in chapter 5 in this book.
4.5 The Three-Year Rule in the Civil Code of 1979 and 2002
The Civil Code was established in 1979 and revised in 2002; below I analyse the 2002 version. Much of the transactional law in Yemen is in the Civil Code. Rules related to gifts, charity, and inheritance fall under the Law of Personal Status, while waqf law is a law of its own. In the Civil Code, most chapters are found in fiqh, and in general, the Civil Code looks sharÊ¿Ä« in its form and language, though there are modern implants in the Civil Code, like âlegal personsâ and the âassociationâ (jamaÊ¿iyya).
The three-year rule is found in both the section on leases (Ê¿aqd al-Ä«jÄr) and in the chapter of the revival of barren lands (iḥyÄʾ al-mawÄt, taḥjÄ«r). I do not address the latter here. The section of leases contains a section called âLease of waqf.â82 First, the mere presence of waqf leases in the Civil Code (from 1979) is somehow strange when most issues of waqf leases are regulated in the waqf law (from 1976). The explanation for this could be that lease of waqf is also mentioned in the chapter of leases in ZaydÄ« fiqh books; however, the three-year rule is not specifically mentioned there. Another contributing factor could be the vagueness of the republican waqf law, which says relatively little about leases. Thus when the Civil Code was written in 1979, three years after the waqf law, issues of waqf lease were included because of the need for additional operational waqf lease rules.
The first article, Article 773, states that leases of waqf are to follow the rules of leases of other property (private property), except what is mentioned in following articles:
Article 774 states that âthe mutawallÄ« must follow the stipulations of the founder.â
Article 775 states that âthe mutawallÄ« is not allowed to rent out [the waqf] for less than local market rent (ujrat al-mithl), and if he does so,83 the contract is invalid, unless the founder has stipulated otherwise.â
Article 776 states that âthe mutawallÄ« must renew the contract every three years, and each time use the free market rent.â
The last four articles (777â780) deal with leases in which the tenant is allowed to own his own building situated on waqf land and if the tenant wishes to transfer this ownership to someone else, the waqf committee (lajnat al-waqf) must agree to it and the new tenant must acknowledge the rights of the waqf. These articles regulating the lease were more detailed than those in the waqf law, until the appendix to the waqf law came in 1996.
4.6 Republican Decree No. 99 of 1996
This decree is called âRegulations concerning organising proceedings for leases and the use of waqf properties and real estate and their investment.â The three-year rule is mentioned in no fewer than three individual articles: Article 4:5, Article 44:2:1 and Article 61. Article 4:5 states:
Part 3. The general proceedings and conditions, section 1, article 4, sub. 5. In accordance with the general rules mentioned in the civil law there are conditions for the writing of the [lease] contracts (inÊ¿iqÄd) and the validity of the lease or usufruct contract, as follows: (sub-section) 5: That the period of lease or use (intifÄÊ¿) is defined by what does not exceed three years before renewal, in accordance with the rules of these regulations.84
The other two articles do not add any content, perhaps they even provide more room for exceptions. They are all similar to their âmotherâ article in the waqf law mentioned above, in that a renewal must take place every three years. I do not analyse them further here, but we can note that article 61 explicitly adds an exception, namely that âlong term investmentsâ are to be valid as long as the rent is updated to the free market rent (bi-ḥasab al-makÄn wa-l-zamÄn) every three years. This is the last time we see the three-year rule in the chronological presentation of ZaydÄ« fiqh and Yemeni codification.
5 The Three-Year Rule in Other Law Schools and Legal Traditions
In the ZaydÄ« legal debate about the three-year rule discussed above there are remarkably few references to other (non-ZaydÄ«) law schools. This may be exceptional or coincidental for this specific rule, since in other rules in the waqf chapter, authorities from other law schools are often invoked and quoted. The three-year rule debate and the knowledge of its authority and validity is inherently ZaydÄ«. However, the three-year rule is also found in other non-ZaydÄ« corpuses of legal theory. Before moving on to the three-year rule in present-day leases and ethnographically observed practices, I present a brief overview of the three-year rule outside Zaydism. This places the ZaydÄ« debate in its âIslamicâ setting and illustrates various levels of interconnections.
The very same three-year rule seems to be present in ḤanafÄ« fiqh, but not in ShÄfiÊ¿Ä« fiqh. That does not mean that such a comparison is straightforward; the trajectory of the three-year rule in the ḤanafÄ« school might be very different than that of the ZaydÄ« debate and a similarly in depth study would be needed to make a proper comparison. Likewise, the absence of the three-year rule in ShÄfiÊ¿Ä« fiqh does not mean that the problem of long-term leases is not treated by ShÄfiÊ¿Ä«s. It is beyond the scope of this chapter to investigate this in depth, however a few notes serve to illuminate our previous review of the ZaydÄ« debate. The Syrian scholar al-ZuḥaylÄ« (b. 1932) has written a well-known work of comparative fiqh called al-Fiqh al-IslÄmÄ« wa-adillatuhu. In this work there is a waqf chapter with a sub-chapter called âlong-term leases.â85 This chapter is a starting point from which we can briefly review the positions of the different SunnÄ« law schools.
5.1 The Ḥanafī View According to al-Zuḥaylī
Al-ZuḥaylÄ« states that the ḤanafÄ«s uphold (yuftÄ Ê¿indahum) the rule that the maximum lease period for a waqf house is one year, and for agricultural waqf lands three years, as long as there is no interest for the waqf contrary to this time period, according to time and place. He uses terms as maá¹£laḥa, iá¸á¹irÄr, ḥÄja, á¸arÅ«ra; all of these have similar meanings, that the rule is not absolute, but open to leniency if interest or utility for the waqf can be identified. If there is no such interest that allows for the transgression of the rule, the rule is valid and must be followed. He quotes a fatwÄ collection called al-FatÄwa al-BazzÄziyya,86 which quotes the one-year rule for leases of houses and the three-year rule for land and which includes a fatwÄ that further specifies that a lease contract can be worded to state that âI rent to you this house for one year for such an amount, and the year after for such an amount, and the next year suchâ etc., all in one cumulative contract that technically consists of several subsequently combined contracts. In such a contract, only the first contract would be valid in a strict sense; the subsequent contracts are valid by consensus (here, riwÄya) of the ḤanafÄ« law school. Furthermore, the rent is defined as âpropertyâ and therefore can be taken in advance or promptly (muÊ¿ajjalan).87
The issue of dual waqf rent, immediate and deferred, also called ijÄratayn or ḥikr, is an important part of ḤanafÄ« waqf lease law and practices;88 a parallel can be seen in modern urban waqf leases in Yemen, as I show below. Al-ZuḥaylÄ« continues by noting that if the free market rent or fair rent (ujrat al-mithl) increases over the rent stated in the contract, then the contract must be renewed. Here he quotes Ibn Ê¿ÄbidÄ«n, who states that if the tenant accepts the rise in the rent, no new contract is needed. If the mutawallÄ« rents out the waqf for a rent below the free market rent, he himself is responsible for the difference.89
5.2 Egypt: QadrÄ« Pashaâs Waqf Law
QadrÄ« Pasha (d. 1888) of Egypt wrote the waqf law called KitÄb QÄnÅ«n al-Ê¿adl wa-l-insÄf li-l-qaá¸Ä Ê¿alÄ mushkilÄt al-awqÄf, which states:
Section four: In clarification of what is allowed for the nÄáºir of transactions and what is not allowedâ¦.
Article 180 ⦠It is permissible for the agricultural lease period [to be] longer than three years if that is better and in the interest of the waqf.90
This is a very clear example of early waqf codification. The comparison to al-TÄj al-mudhhab and the TaysÄ«r is apt; the fiqh has been reduced to coherent univocal statements, stripped of references of authority. Even though the rule is now an âarticle,â vague traces from the fiqh remain in the title of the âSectionâ which can also be recognized as a section in the ZaydÄ« Sharḥ al-azhÄr waqf chapter. We can say that the very mention of the three years is itself a reference to the fiqh, while the article itself simply identifies the âinterestâ of the waqf as the solution of the problem.
5.3 AbÅ« Zahraâs Comment
The well-known Egyptian legal scholar Muḥammad AbÅ« Zahra (1898â1974) wrote a book called MuḥÄá¸arÄt fÄ« l-waqf. In this book he quotes, without references, Ibn Ê¿ÄbidÄ«n, who allows the tenant to invest in and build new structures on waqf land if it is in the interest of the waqf. After three years, the ownership of these things passes to the tenant (presumably according to the taḥjÄ«r rule or some derivative of it).91 Otherwise, he does not mention the topic of long-term leases. After all, the ḥikr or ijÄratayn was a firmly established practice in Egypt.92
5.4 The Three-Year Rule in Contemporary Egypt
In a book called MawsÅ«Ê¿at al-awqÄf: TashrÄ«Ê¿Ät qaá¸ÄʾâiftÄʾ: FatÄwa al-awqÄf mundhu 1890 ḥattÄ 1997, we find a fatwÄ from 1 July 1981 that centres on the issue of authority in long-term leases. The fatwÄ reviews different legal authorities, among them the Egyptian Civil Code. In the Egyptian Civil Code, the three-year rule is mentioned:
Civil Code, article 633 section (1): It is not allowed for the mutawallī, without the permission of a judge, to rent out the waqf for a period longer than three years, even by subsequent contracts; if the lease is contracted for a period of more [than three years], then the contract is only binding for three years.93
The fatwÄ is an edited, anonymized fatwÄ in modern legal language. In addition to the above reference to the Civil Code it further claims that in these matters the authority of the judge has been transferred to the authority of the undersecretary (wukalÄʾ) of the ministry of awqÄf, and that this specific restriction does not apply if the ministry acts as the mutawallÄ« (here, nÄáºir). In this, the muftÄ« refers to two laws specifying the authority of the ministry and its sub-sections.94 Thus the fatwÄ invokes the three-year rule by referring to the Civil Code simply as a way of proving its own validity and relation to Egyptian law and fiqh. In fact, it states that the ministry is a mutawallÄ« with the powers of a judge, thus free to base its actions on the âinterestâ of the waqf and thus it does not have to follow the three-year rule.
It is not a coincidence that in Egypt the three-year rule falls under the Civil Code and does not appear in the body of waqf laws. This probably has its origin in the structure of ḤanafÄ« fiqh. A quick look at the HidÄya sharḥ bidÄya al-mubtadÄ« by Ê¿AlÄ« b. AbÄ« Bakr al-MarghÄ«nÄnÄ« (the English translation by Charles Hamilton) reveals a short reference to the three-year rule in the âBook of Hireâ concerning long-term waqf leases.95
5.5 The MÄlikÄ« View According to al-ZuḥaylÄ«
In the MÄlikÄ« legal tradition, there is a maximum rule of âa year or twoâ in waqfs for specific persons and up to four years for public waqfs (i.e., for the poor and mosques, Ê¿alÄ fuqarÄʾ wa-l-masÄjid). If there is a necessity (á¸arÅ«ra) and the waqf is in need of repair, the waqf can be rented out for forty or fifty years, but not more.96
All these MÄlikÄ« time periods are interesting for the ZaydÄ« debate since most are mentioned in the ZaydÄ« debate as well, although without reference to their origins. Al-HÄdÄ« used the âone or two yearâ period and Imam YaḥyÄ b. Ḥamza used the fifty-year period. Much of al-HÄdÄ«âs fiqh is taken from his grandfather al-QÄsim b. IbrÄhÄ«m al-RassÄ« (d. 246/860), who grew up in, and lived near, Medina. He was a scholar there and in Cairo and also taught Medinan ḥadÄ«ths.97 The link between the ZaydÄ« and the MÄlikÄ« time periods could be better established by further studies. In this, the anthropological/praxiological study object ceases and the absolutely historical one takes over, as ZaydÄ« texts commonly read by informants today do not direct readers to references farther back than al-HÄdÄ« and YaḥyÄ b. Ḥamza, at least on this matter. The chains of references, and thereby the construction of validity and authority at the time of Ibn al-Murtaá¸Ä and Ibn MiftÄḥ do not extend beyond merely quoting these previous imams.
5.6 ShÄfiÊ¿Ä« Waqf Leases According to al-ZuḥaylÄ«
For the ShÄfiÊ¿Ä«s, al-ZuḥaylÄ« only quotes the MughnÄ« l-muḥtÄj; however, the quotations are not direct, rather they are restatements in his own words and are self-contradictory. Al-ZuḥaylÄ«âs first statement is that it is absolutely (qiá¹Ê¿an) not valid to rent out a waqf asset for less than market price. The second view he notes seems to be quotation from al-NawawÄ«âs MinhÄj al-á¹ÄlibÄ«n, which states that the lease contract is not invalidated (i.e., it is valid) if the rise in market price happens after the contract is made or if a higher bid is made.98 It is not strange for a theoretical legal debate to contradict itself, on the contrary, it is the nature of such âacademicâ dialogue. The problem for the commentator, in this case al-ZuḥaylÄ«, arises when he wishes to concisely restate the ShÄfiÊ¿Ä« view. The result is two sentences, one of which contradicts the other.
5.7 ShÄfiÊ¿Ä« Leases as Mentioned in the MughnÄ« l-MuḥtÄj and the Tuḥfat al-MuḥtÄj
This self-contradiction is elaborated upon in the MughnÄ« l-muḥtÄj99 and can be seen in almost the same language, structure, and references in the Tuḥfat al-muḥtÄj.100 These two commentaries are very similar in form, as compared to the Sharḥ al-azhÄr, but they quote other authorities. ShÄfiÊ¿Ä« fiqh has not been an important part of this study, and only a few scholarly ShÄfiÊ¿Ä« informants were consulted. Of the fiqh compilations, the most famous and the one most relied upon in Yemen is the mukhtaá¹£ar called MinhÄj al-á¹ÄlibÄ«n by al-NawawÄ«101 (d. 676/1277). The MinhÄj is organized differently than the KitÄb al-AzhÄr, but there are many similarities in the way it was used, as an introductory book in fiqh for sharÄ«Ê¿a students and also for different levels of study depending on the level of the sharḥ that is studied along with it. The MinhÄj has a waqf chapter in which lease issues are mentioned in more than one place. In the matn, there is no reference to the three-year rule. To be more precise, there are several places in the matn where lease issues are mentioned, however the single most important place for us is at the end of the waqf chapter:
If the administrator (al-nÄáºir) rents out [the waqf asset] and the market price rises during the lease period, or if someone gives a higher bid, the most correct view (al-aá¹£aḥḥ) is that the lease contract is not invalidated.102
This is al-NawawÄ«âs matn. In al-ShirbÄ«nÄ«âs (d. 977/1570) sharḥ, MughnÄ« l-muḥtÄj, al-ShirbÄ«nÄ« splits up the matn, adds more words, and starts a fairly long comment on this rule.103 Al-ShirbÄ«nÄ« quotes a fatwÄ by a certain Ibn á¹¢alÄḥ who states that such a lease can be valid only if the market price remains stable. If it does not remain stable, the contract cannot be binding into the future since the future is unknown (and contracts cannot contain unknown elements).
A certain al-AdhriÊ¿Ä« states that âthis is a highly complicated questionâ (mushakkal jiddan) and that if the intention of the original contract was the market price, then this must be followed. âThe world is in constant change,â he states, in regard to the problem of setting up the ideal lease for the waqf. And as for the legal problem as such, he adds, âand in this [matter], the discussion is long.â104
A very similar comment, quoting mostly the same sources, is made by Ibn Ḥajar in his Tuḥfat al-muḥtÄj. The Tuḥfa105 uses the same two quotations as the MughnÄ« does, but the author adds that even if a ShÄfiÊ¿Ä« judge makes a ruling that such a lease contract is valid, that is, into the future, despite an increase in the free rent or despite the death of one of the parties, then such a ruling is invalid and no judge can say that such a contract would be valid into the future, since no judgement can be built on something that has not yet happened.106 In other words, unless the founder wishes otherwise, the lease contract is invalidated if the rent is not kept up according to market rental rates. These ShÄfiÊ¿Ä« references show that the legal debate is situated in its own context, and while it refers to different rules and authorities, at least compared to the ZaydÄ« debate, there are also strong similarities between the various fiqh debates in structure, language, and content. How the lease issues have been codified or used in practice by judges in the ShÄfiÊ¿Ä« areas of Yemen is another matter.
5.8 Ḥanbalī Waqf Leases According to al-Zuḥaylī
Al-ZuḥaylÄ«âs section on the ḤanbalÄ«s is brief and mainly states that the mutawallÄ« is responsible for obtaining the full market rent.107
5.9 The Trajectory of the Three-Year Rule in Fiqh
A review of the trajectory of the three-year rule in this chapter demonstrates how the corpus of fiqh knowledge is represented by individual rules, strings of rules, necessary commentaries, texts, and debates that span centuries, which later actors must somehow relate to. As a legal problem, the three-year rule is only one aspect of many related problems of waqf leases. Questions related to leases of waqf are found in other parts of the chapters of waqf and also in other chapters of fiqh books, sometimes under the chapter of leases, the chapter of sharecropping, the chapter of agricultural revival and demarcation (taḥjīr), and so on. The configurations of the debate in the various law schools vary and the Zaydī debate is a distinct one.
In this historical presentation, the texts were chosen according to both the intertextual references and their relevance for informants today, as they explained which books and sources are authoritative in ZaydÄ« fiqh in general. Few informants today know the genealogy of this specific rule and in this aspect the focus of this chapter on one single rule may seem obscure. However, at the same time, the scholarly informants do relate to the scope and sequence of sources quoted in this chapter and for any rule they wish to discuss or study in depth, they must somehow apply a similar method, that is, they must trace the roots of legitimacy and validity back, to try to find the original sources in order to find the best possible evidence, according to their needs. And in most cases, the chains of references do not need to stretch back to reach an ultimate, absolutely clear source. On the contrary, in most debates they stop in the middle of certain frames or criteria of validity, which, it seems, the reader is expected to simply accept. Presumably, there is no need for a link that goes further back, as readers have confidence that the authorities have the correct view. The three-year rule is, as mentioned by many, an interesting tool that is useful for restricting the rights of the tenant. The problem is that as a rule, it has mainly been used in a way that is contrary to what it was explicitly intended for, namely to legitimize longer leases and continuous, perpetual renewals as in âyes, the three-year rule is the norm, which we of course adhere to as Muslims and ZaydÄ«s, butâ¦.â In the following part of this chapter, I show how leases are undertaken in practice and how the law responds to actual situations.
6 Waqf Lease in Practice
The main focus of this chapter has been on the trajectory of the three-year rule in fiqh and codification, both âforward,â as a historical and chronological genealogical trajectory, but also âbackward,â as a faqÄ«h would conceptualize the roots of validity in older texts. The following part of this chapter does not deal specifically with the three-year rule, since it hardly exists outside the field of fiqh and codification. Rather, it focuses on some wider issues related to waqf leases at the level of the judge and administrator and in everyday waqf knowledge. In these fields of knowledge, we rarely see the three-year rule at all; rather we find different norms related to leases. The comparison between the validity of these norms at the local level and the validity of the three-year rule at the fiqh level is problematic because of the significant differences in context; however, as we see, the wording of the three-year rule can still be found in a few cases, and the problem it is supposed to address certainly also continued to arise.
Two important distinctions are âbeforeâ vs. ânow,â and ârural, agricultural leasesâ vs. âleases of urban plots and assets.â These two distinctions overlap in part, since agricultural leases are still executed in the traditional way, while the lease of urban land is a somewhat new phenomenon that has emerged after the revolution. (Leases of urban buildings, such as shops in the market area, also existed before the revolution, but this type of lease is not treated below).108 Another important way of categorizing leases is to separate leases undertaken by waqfs that for various reasons are kept out of reach of the public administration from those leases undertaken by the ministry of awqÄf. The former tend to be called waá¹£ÄyÄ. This section focuses on public waqfs, but leases in private waqfs also deserve some mention.
In smaller family waqfs and in the waá¹£ÄyÄ type, leases are often not necessary, as the mutawallÄ«, the tenants, and the beneficiaries are part of the same family. They have the right to the surplus of the waqf land and they till the waqf land. It is only when disagreements ariseâover the flow of cash (or grain), or the transfer of shares from one generation to the nextâthat some family members may complain to the judge. Since family waqfs are difficult to defend under the present law (since Imam YaḥyÄ), most waqfs of this type have been privatized. Many of these waqfs survived because of a public, charitable component, such as a small mosque or a cistern in addition to the family waqf (we return to this issue in chapter 7), and because many of these waqfs were not registered.
The larger family waqfs, some of which still exist, rent out their land according to methods and rules that follow local custom. Because there have been many changes in agricultural lease practices and sharecropping practices since the revolution, it is difficult to give a comprehensive description of this here. In brief, the mutawallÄ« for the waqf is usually an important person in the clan or the extended family, and the power over the family assets and the salary he takes often re-affirm his position in the family. Many of the larger, sayyid, qÄá¸Ä«, and shaykh families still have such family waqfs, and I have met several members of such families who receive cash or bags of agricultural produce from their lands in the countryside. These families often have family networks that cover large areas; their lands are typically in their main âhomeâ areas, or in politically âdocile,â non-tribal areas in the TihÄma and western mountains where peasants farm their land. Almost nothing is known of the extent of this type of waqf. Even if these waqfs have been privatized, they still âneedâ an administrator. Here the definition of waqf is not crucial, rather it is the phenomenon of the family estate.109 Messick also points out that the powerful families and landowners are able to own lands far away, in contrast to smaller landowners who usually only own land near their villages.110
The waqfs administered by the public authorities are rented out through the administrative system of the awqÄf. As mentioned in chapter 3, this system has changed somewhat, especially during the time of Imam YaḥyÄ and today it is dominated by the ministry of awqÄf. Other types of waqf are included under the heading of âpublicâ waqfs, such as the waqfs for saintâs tombs (turab), Islamic schools, and the many waqfs of the waá¹£ÄyÄ category that were entered into the government awqÄf more or less by force in various regions and stages.111 All these form âclustersâ of waqf administration in which the Imam formerly, today the ministry of awqÄf, is either the direct mutawallÄ«, or in any case the inspector (nÄáºir) with the power of a sharÄ«Ê¿a judge.
6.1 Traditional Agricultural Leases
A description of the traditional agricultural waqf leases is important since, in terms of the number of assets and physical areas rented out, this is still the most important lease activity for the ministry today. In general, these practices seem to have changed relatively little from the period before the revolution until today. The importance of waqfs varies greatly from area to area. The most fertile areas could, and still can, have several local waqf representatives, the so-called Ê¿Ämil al-waqf (pl. Ê¿ÄmilÄ«n or Ê¿ummÄl). In times of political order, these representatives answered, in turn, to a higher nÄáºir either on the state or the regional level. Only in Ibb, Taâizz, and Zabid do we know that Imam Aḥmad created local a waqf office (Maktabat al-awqÄf). Until today, the ongoing reform has been to create a mudÄ«r waqf in every district (mudÄ«riyya), but this does not seem to have been fully implemented yet.112
There are two distinct ways of defining the rent, either according to a fixed yearly price, or according to a fraction of the yearly harvest. The first is less common and is often called á¸amÄn.113 The latter is âsharecroppingâ and can have different namesâa general term is mushÄraka, or al-sharika al-Ê¿urfiyya. Both these types of leases are found in both private land leases and in waqf leases. At the level of the ideal fiqh, the mushÄraka is illegal, since it is not only unlimited in time, but also contains an element of gambling, as the future yearly harvest cannot be known and thus the absolute rent itself is not known. Still, in ZaydÄ« law schools the consensus is that most forms of mushÄraka are legally valid.114
As for the fixed price leases (á¸amÄn), compared to the mushÄraka these are more vulnerable to changes in the rate of market rents. This was also pointed out by the jurists in the footnotes of the Sharḥ al-azhÄr earlier in this chapter. In chapter 3 we saw that Aḥmad QÄá¹in (d. 1199/1785) wrote about lease practices in Lower Yemen and quoted al-QÄá¸Ä« Ê¿Abd al-JabbÄr (d. 1184/1771), who stated that the waqf income was called á¸arÄʾib and that the rent was fixed independently of the harvest.115 Even though the proper way of collecting the rent would be by mushÄraka, in periods of weak centralized waqf administration the fixed rent would be easier to take. The practice of mushÄraka is dependent on an assessment of the harvest; this is done by an individual hired by the waqf. The assessor must set the rent just before the harvest itself, otherwise, the tenant could manipulate the size of the rent if the Ê¿Ämil is not present at the time of harvest.
We know that Imam YaḥyÄ dispatched âassessorsâ to estimate the size of the harvest in two parallel systems, one for waqf income and one for zakÄt.116 The assessments around Sanaa were called á¹uwwÄf or á¹iyÄfa; the term khará¹£ and khurrÄá¹£ were also common. The Ê¿Ämils also had to send a yearly accountancy to Sanaa for approval. In Imam Aḥmadâs time, this system seems to have disintegrated and zakÄt was collected according to a fixed sum based on the amount of land. After the revolution, under al-ḤamdÄ«âs presidency this was left to âtrustâ (amÄna)âfarmers were trusted to pay the correct amount voluntarily.117 I was not able to establish to what extent, and in which areas the harvest assessment is still carried out. If assessors were not used to estimate waqf rent, then the previous years of accountancy could still be used to establish an average rent for a specific agricultural field and a minimum, basic waqf lease administration would keep record of the names of the individual agricultural fields and the average capacity of the field in terms of production of grains (these were usually measured in numbers of qadaḥ118 of sorghum (dhurra)).
Until today, many waqf inventory registers (miswaddÄt al-aÊ¿yÄn) only state the name of the agricultural field and its average âcapacity.â Then, if the mushÄraka could be used and the harvest assessed, other registers would keep track of each individual tenant and his payments for each year (miswaddÄt al-ajÄʾir).119 This would be an administrative register for accounting, while the former, the inventory registers (miswaddÄt al-aÊ¿yÄn), were extremely valuable meta-ownership documents of the awqÄf to be safeguarded in times of war or chaos so that they could be claimed when peace and order return. The primary importance was to keep records of the assets and in this way safeguard them, the secondary was to extract the highest possible income from them.120
The mushÄraka type of lease is the most common form of private agricultural lease. Thus knowledge of a mushÄraka is common among all individuals dealing with land in one way or another. Any local notary could write a mushÄraka lease contract. The waqf mushÄraka leases are unique, compared to private mushÄraka leases, because the rent tends to be well below market rental rates, that is, the fraction given to the âlandlordâ is lower. In private leases, the rent, or fraction of the harvest, depends on access to irrigation water, the type of crop, whether or not the tenant or the landlord must pay the zakÄt, who is responsible for maintenance, etc. MushÄraka fractions range from four-fifths of the harvest to less than one-tenth paid as rent to the landlord. These estimates, and the wide range they cover, are not important here. In a typical mushÄraka lease on rain-fed sorghum land, where the tenant has a right to remain a tenant corresponding to a certain deposit or âentrance feeâ (Ê¿inÄʾ), it is usually the tenant who pays the zakÄt and takes care of the maintenance and his part of the harvest would commonly be one-half to three-quarters, that is, the rent paid to the landlord would be one-half or one-quarter.121 In a field survey from the 1990s Donaldson found that the rent paid to waqf was often significantly lower than rent paid to private landowners. Informants told him âwaqf trustees are more generous landlords than are private individuals.â122 One can imagine that if the tenant only has to pay one-sixth, and the local free rent is, say one-quarter (free rent, fair rent, ujrat al-mithl, urjat al-makÄn wa-l-zamÄn), then the difference between the two goes into the pocket of the tenant and thus represents a valuable yearly income. The right to remain a tenant can become lucrative, that is, if the leases are continuous and not terminated by a three-year rule and corrected to reflect the market price. The right to remain a tenant is called ḥaqq al-yad or al-Ê¿inÄʾ123 (for buildings, it is often called ḥaqq al-miftÄḥ). Whether or not this right is something that can be bought and sold is a fairly theoretical legal problem, however, in practical terms and in practice-oriented fiqh, this is allowed and in any case circumvented by simply using other terms. Further, it was also explicitly allowed in waqf leases, as shown in the fatwÄ of al-ShijnÄ«, which is analysed in chapter 7. In that fatwÄ the term ânaql al-yadâ is used for the sale of this right. Thus, in practice the tenancy could be âinherited,â âbought,â and âsold,â but not with those words.
In the early 1950s, there was a great deal of chaos in the administration of the Zabid waqfs. Waqfs were rented out for indefinite periods with strong tenant rights attached to them. Imam Aḥmad ordered the kawÄʾin type of waqf to be rented out for one-quarter of the harvest and further, to end the right of Ê¿inÄʾ altogether. Furthermore, he ordered that leases should be for a maximum of three years. The order was enforced and many farmers went to prison when they protested.124 In 1957, Imam Aḥmad had to give up the implementation of this order after many complaints and problems, and he again allowed sale of the Ê¿inÄʾ and also returned to the custom of charging the tenants one-fifth of the harvest instead of one-quarter.125
It is important to ask, how valuable was this Ê¿inÄʾ right? If the mutawallÄ« wanted to remove the tenant, how much would he have to pay the tenant? And if someone wanted to take over a tenancy, how much would he have to pay the landlord? This would depend on the difference between the agreed rent and the local free market rent. The size of the rent is balanced against the size of the Ê¿inÄʾ. A more exact answer is likely related to local geographical and historical context, but this is a matter that could not be followed more closely here. The distinction between private waqfs and âpureâ public waqfs is extremely important here.
In a public waqf one would expect that the Ê¿inÄʾ would be minimal, but this does not seem to have been so simple. In al-ShijnÄ«âs fatwÄ cited in chapter 7, he explicitly claims that this right also exists in âpureâ waqf (al-waqf al-khÄliá¹£).126 The modern waqf law on the other hand is ambiguous in this question since article 73, as quoted above, states that leases must be according to free market rents, while in several other articles, it also allows for the Ê¿inÄʾ or ḥaqq al-yad wherever this âalready exists.â It also refers to something called âpureâ waqf (al-waqf al-á¹£ÄfÄ«) whenever no Ê¿inÄʾ exists. The waqf law further states that the Ê¿inÄʾ can also be transferred to the following generations: Article 38 in the Regulation of Leases of 1996 states that âif a tenant dies, his heirs are not allowed to take over and share his ârented awqÄf,â unless âthey need it,â âby necessity of livelihoodâ (maÊ¿Äyishatan). This is the case as long as he obtains a permit by the local mutawallÄ«127 and other conditions are fulfilled, namely that no harm is done to the waqf, and it is âin accordance with the wishes of the founder,â and the new tenants confirm that they will follow the same rules.128 Article 38 thus opens the possibility of âinheritingâ public waqf tenancy. The sentence âin accordance with the wish of the founder,â clearly aims at the waṣīya type as discussed in chapter 7, yet the article as such also targets public waqfs.
In the sub-chapter concerning waqf in Serjeantâs book on Sanaa, he reproduces a âruleâ that is quite revealing. After Ḥusayn al-Ê¿AmrÄ«âs long quote that portrays a rather ideal waqf in ZaydÄ« fiqh, Serjeant mentions in a brief paragraph a rule (of unknown origin) that explains some practices in waqf:
When a waqf is sold half of the price of the land constituting the waqf (qÄ«mat Ê¿ayn al-ará¸) is paid to the Waqf, and the other half [is divided] between âthe hand (al-yad), i.e. the owner(s) by inheritance (wirÄthah) of the entitlement to the waqf (aḥaqqiyyat al-waqf) and the shakhá¹£iyyah, i.e., the cultivator or the qabÄ«lÄ« in return for the work which he has carried out (muqÄbil al-Ê¿amal alladhÄ« qÄma bi-h).â129
Several informants in the Sanaa area also pointed out a similar rule, and one who was a mutawallÄ« for a prominent sayyid house in Sanaa also called the rule a fatwÄ. In the version of the rule quoted above there is also a piece of information added to the end that somehow explains the validity of an otherwise odd phenomenon; the reason is that the tenant may have invested his own resources in maintenance of the asset. If the mutawallÄ« allows the tenant to invest in the asset, be it in maintenance or indeed in additional physical structures, then the ownership and value of this investment can belong to the tenant. In practice, it becomes difficult to separate the waqf component of the asset from the private component. The subsequent lower rent, as compared to the rent of an âabsoluteâ waqf, is one result. If the mutawallÄ« does not allow the tenant to invest in the asset, the tenant clearly does not have the right to keep his investment if the mutawallÄ« terminates the lease. The problem arises in the grey areas in between. This rule above, as far as I have understood, refers to practices in the Sanaa area shortly after the revolution. The rule Serjeant quotes probably refers to normal, public waqfs in the Sanaa area and it is likely that this rule was originally made for judges or administrators in cases where it was important to get the old tenant off the agricultural land so that the land could be used for urban building plots (Ê¿araá¹£a pl. Ê¿araá¹£Ät) instead. This implies that the public waqf (type A in the model in chapter 3) was not considered entirely âcleanâ (á¹£ÄfÄ«) or âabsoluteâ (muá¹laq). There were rights attached to it that were not part of the ideal, basic waqf model.
With regard to agricultural leases the most common type of lease was a continuous sharecropping lease, and the rent was below free market rent. The difference between free market rent and reduced rent is important for understanding the value of the ḥaqq al-yad or the Ê¿inÄʾ. At the same time there could also exist fairly âpureâ waqf leases in which the tenant paid close to full local rent. Thus the âconfusionâ referred to in the discussion of the three-year rule arises when tenants are allowed to invest in the asset and are then permitted to pay a lower rent. If someone remains a tenant for a long time, even normal maintenance, which is originally the duty of the mutawallÄ«, gradually leads to the part âownershipâ of the tenant in the asset and the confusion between waqf and private ownership becomes a reality. Thus, the three-year rule and the legality of Ê¿inÄʾ are conceptually related, however complex the relationship. It seems that waqf leases are affected by the practices and norms found in private agricultural leases where the Ê¿inÄʾ is a central concept. The jurists pointed out this problem hundreds of years ago, but the juristsâ law does not seem to have been used, unless we are prepared to see that there are different levels in the juristsâ law and that the text of the matn in the mukhtaá¹£ar is not the only law that the jurists accepted as valid. The legally validated views are much closer to a codified law.
6.2 Urban Leases
There are two distinct new developments that the economic change after the revolution brought to the older rules: the concept of the maʾdhÅ«niyya and the taḥrÄ«r. These bear strong resemblances to the concepts of Ê¿inÄʾ and ijÄratayn/ḥikr. The dual rent was common in Ottoman-controlled areas and the concept of Ê¿inÄʾ, which is similar, commonly appears in the waqf leases in Yemen discussed above. Yet, what we see in the debate about the three-year rule are strong notions of what a âpureâ waqf should be, and that the tenant must not be given a position in which he can, over time, take over the asset in the name of maintenance or âinterest.â In the period after the civil war ended (around 1968), the solution of selling waqf land around the rapidly growing cities such as Sanaa seems to have tempted public waqf administrators. Perhaps this was related to the relatively low status of the âtraditionalâ waqf, and the presence of waqf reforms and privatization programs elsewhere. Messick writes that the local waqf administration in Ibb at the time was controlled by a small number of individuals and families, who arguably benefitted much during this period.130 We must also note that the 1970s saw massive changes in technology and economic growth. There was enormous need for urban building plots around the major cities, where much of the land was agricultural waqf land. Land prices skyrocketed. The new tenants did not want to till the land, but to build houses on it. The building of houses on the waqf land introduced permanent changes in the system and tenants could not be expected to move away at any time, and certainly not after three years.
6.3 Al-Maʾdhūniyya
The ministry settled for a dual lease option. Other options would have been to sell the land and focus on a strategy of istibdÄl, which is to buy another waqf asset somewhere else, where the old investment strategy (agriculture) could continue. This would remove the waqf status from the urban agricultural lands. Another option would have been to demand full market rent for the plots, a right clearly stated in waqf law. A dual lease involves selling the right to use the plot, arguably for an indefinite period, and charging a substantial amount for allowing the tenant of the plot to build on it. This immediate rent (muÊ¿ajjal) appears in urban leases in Yemen after the revolution and is called the âallowanceâ al-maʾdhÅ«niyya, as the tenant is allowed to build on the land. The yearly rent was set as a fixed rent per area131 (libna) and was fairly low, especially after a few years of inflation.
From early on, there was criticism of this system, especially the problem of empowering the administrators of public waqf assets to raise rents. Several informants in the ministry of awqÄf and indeed also the former minister of awqÄf, Aḥmad al-ShÄmÄ«,132 states that from the time it was established the ministry had problems with its unorganized nature; and many of the employees accumulated more power than the leadership, particularly as they tended to protect practices that increased their own personal income. The salaries of most employees are still percentages of the transactions they administer, this includes percentages for issuing the maʾdhÅ«niyya. Changing this policy thus meets resistance from both employees and tenants.
If the maʾdhÅ«niyya is set too high, the rent must be equally low and the whole situation comes to resemble a sale. The law is not coherent in this issue because article 73 in the 1992 law and article 28 in the 1996 waqf lease regulations both state that the rent cannot be lower than free market rent (Ä«jÄr al-mithl al-ḥurr zamÄnan wa-makÄnan).133 The maʾdhÅ«niyya could be restricted by applying the lease regulations of 1996, article 17, which states that the maʾdhÅ«niyya cannot be higher than 25 per cent of the local price of land in the area.134 The maʾdhÅ«niyya is different from the Ê¿inÄʾ in that the tenant is not guaranteed that his money will be refunded if he wants of âstep downâ (tanÄzul) from the lease; it was a one time fee related to the deferred rent. If the tenant sells the house to someone else, the new tenant must acknowledge the tenancy with the ministry. The second tenant would have to pay the first tenant privately and this way the first tenant gets most of his investment back. However, in old leases, the tenant may have acquired Ê¿inÄʾ rights, especially if the plot was originally rented through an old sharecropping agreement.
Today, article 22 in the regulations of waqf leases of 1996 states that if a tenant has an âobviousâ right to Ê¿inÄʾ (al-Ê¿inÄʾ al-áºÄhir), and if the public waqf administrator (al-mutawallÄ« l-mukhtaṣṣ) wants to terminate the lease, two expert witnesses should assess the value of the Ê¿inÄʾ âaccording to customâ; however, the Ê¿inÄʾ cannot be higher than 20 per cent of the market value of the land. Article 23 states that a court can rely on two expert witnesses in such a dissolution of a tenancy, in addition to the representative of the waqf, and further, that these proceedings can follow local custom (Ê¿urf) âas long as it does not contradict the law.â135
These sharecropping leases are in effect perpetual as long as both sides respect the conditions. This is directly contrary to the three-year rule as it was originally put forward and it is certainly far from the ideal waqf model. Ironically, the three-year rule is stated in the waqf law as mentioned above, however, it is mentioned with exceptions that render it without effect; namely that leases can be renewed if they are below market rent. The wording of the three-year rule is also found on the standard lease contract that the ministry uses. The urban plots are rented out for three years at a time, whereupon they have to be ârenewed.â The renewal, however, remains a pro forma act. One example is a lease contract from 1986 in which 3.5 libna (altogether approximately 130 sq. metres) at ShuÊ¿Å«b just outside the old city to the north was rented out for 168 riyÄls yearly (3.5 libna x 4 riyÄls per libna per month). The immediate rent (later called al-maʾdhÅ«niyya) was 12,250 riyÄls. Effectively, the immediate rent thus equals more than 70 years of yearly rent.136 The ministry avoids the illegal selling of the land by adding the formulae of the three-year rule in the contract, in addition to a condition that states that the ministry is allowed to increase the yearly rent, which for various reasons mentioned above they only manage to do to a limited extent.
6.4 Taḥrīr
A concept that many âordinaryâ informants have heard about, and one that is well known is that of istibdÄl, ibdÄl, taÊ¿wÄ«á¸: the act in which the mutawallÄ« sells one waqf asset and buys another one. In fiqh this is portrayed as legally valid if it benefits the waqf as a whole. But as we saw in the letter from Ibn al-AmÄ«r in chapter 3, large-scale istibdÄl is seen as interfering with the notions of fixity and the sacred aspects of waqf. The ministry has also partly followed the policy of allowing istibdÄl, but this is more commonly known by ordinary people as taḥrÄ«r (privatization, lit. âmaking freeâ). Waqf tenants are given the choice to buy out of the waqf status by purchasing the land that they are renting from the waqf. In this case, the land becomes privatized, or âfreeâ (ḥurr), t0 use the common term.
In the transition from agricultural leases to leases of urban land that took place after the revolution and still takes place, the value of the land according to local market price was simply split into two, as referred to in the rule quoted by Serjeant above, when the tenant received their Ê¿inÄʾ or ḥaqq al-yad. But after this process was carried out once, the new tenants lost such rights and ideally would have to pay full market price if they want to buy the land from the ministry.
One informant mentioned he had recently privatized (lit., âḥarraredâ the land, or performed a taḥrÄ«r) because he was afraid that his descendants would not respect the waqf status of the land and he wanted to keep his conscience and soul clean for the future. He told me the rent was fairly low; he rented 100 libna for around 20,000 riyÄls yearly while his own income from the land (partly qÄt cultivation) was actually closer to 500,000 riyÄls yearly. Such stories can also be found relating to other types of assets: houses and shops are rented out well below market price and the tenants perceive themselves to have a strong right in the waqf asset. Most people prefer to remain waqf tenants, seemingly because of the low rents. The process of taḥrÄ«r also involves many stages and operations, such as having the land measured by specialists (massÄḥīn), demarcating it (taḥjÄ«r), estimating a price (tathmÄ«n, muthamminÄ«n), calculating the portion of runoff rights (rahaq, marÄhiq), engaging arbitrators (muḥakkamÄ«n) and local neighbourhood representatives (Ê¿Äqil, Ê¿uqqÄl), and employing witnesses (shuhÅ«d). Thus it is not necessarily an easy process and at each step the various actors must be paid and might seek to maximize their profit.
Ideally, taḥrÄ«r is the better solution for the ministry and for the waqf in general as long as they obtain a good price. This way they can reform the bulk of assets into other investments, which produce a more normal rate of surplus and they can engage in investment strategies that are cheaper to administer. However, we see a strong cultural notion that the tenant is also a receiver and a sort of beneficiary. This notion is not easy to change. As one informant stated: âwhy shouldnât we get the flat cheaply, after all it is waqf; it is for the poor to enjoy and we are poor!â Such notions of what waqf âisâ are also real, and produce real consequences, just as the ideal fiqh does. If the ministry was simply in charge of a large trust, disconnected from local knowledge about actual assets in the neighbourhood and how they are used, then this could also hurt its legitimacy and validity. When waqf assets are regrouped and shuffled around too much, they lose the connection to the original founderâs intentions. If the ministry does not respect the intentions of those who make the waqfs in the first place, then few would make new waqfs for the future. People would start to choose other forms of local charity; in fact, this is what has happened. To a large extent, waqf and awqÄf are now seen as synonymous with the bureaucracy of the ministry and its local waqf administration, and the âfactâ that waqf is a prominent legal vehicle for organising public welfare is less known.
â¦
When choosing a specific rule and tracing its trajectory, we see that its meaning and its validity varies across different fields of knowledge, as mentioned in chapter 2. In a narrow legal sense, the three-year rule is not much used and hardly relevant, yet it represents a sort of ideal of an absolute waqf and this ideal is invoked in the waqf law, in administrative practices,137 in lease contracts,138 and in waqf documents.139 In all these documents and cases the rule is invoked to protect the rights of the waqf, or it is invoked to claim a connection to fiqh, sharÄ«Ê¿a and thus religious validity in a broad sense. This gap between the ideal norm and practical needs is discussed in minute details in works of fiqh, already many centuries ago, as we have seen. The jurists (fuqahÄʾ) had a clear and strong consciousness about pragmatic lease problems in the real world. If we ask someone what is âIslamic law,â the answer will not be shorter or any more coherent than what this chapter illustrates; it is a complicated and opaque discourse about both ideals and pragmatic rules.
When representing (ZaydÄ«) Islamic law it is tempting to look at the main rule, which is clearly stated in textbooks: âthe mutawallÄ« of the waqf is entitled to rent it [the waqf asset] out for a defined period, however, for less than three years only.â At first glance, it is a norm that claims to be valid, based on the text âitself,â by having been written in an âauthoritativeâ book. However, the fiqh and the madhhab-validated fiqh actually says that the three-year rule is not absolute, that it has exceptions, in fact quite a number of exceptions. Briefly, we can say that by looking at the sharḥ genre, and at the practice of the law, we emerge with a deeper insight than if we only look at a rule found in a mukhtaá¹£ar. In a similar, but not entirely analogous way, this approach could also be used when representing Islamic law in more controversial rules, like ḥudÅ«d or other topics. In representing the law, there is always a danger that the researcher has decided what to represent before researching the empirical material and the normative texts. The researcher risks reproducing a norm rather than a providing a description of how some views are codified and how that codification is used. This is why the inductive approach and praxiology can offer a corrective to the methods of the researcher. In the course of following the evolution of, and practice related to, the three-year rule we have been led, at times, down obscure paths, but as shown, the three-year rule is relevant to present-day legal practices, and by following one rule only, in a chronological and systematic way, we also establish a structure for seeing and representing the context of this âIslamicâ rule.
To a natural or legal person. For a discussion of âlegal personalityâ in sharÄ«Ê¿a generally and waqf specifically, see Behrens-Abouseif, âThe Waqf.â
In Zaydī fiqh a lease is the sale of the usufruct for a defined period.
A. M. Delcambre, âMilk,â Encyclopaedia of Islam, second edition, ed. P. J. Bearman, Th. Biancuis, C. E. Bosworth, E. van Donzel, and W. P. Heinrichs (Leiden: Brill, 1960â2004), 7:60.
Brinkley Messick, âProperty and the Private in a Sharia System,â Social Research 70, no. 3 (2003): 711â734.
For sharecropping in Zaydī law, see Donaldson, Sharecropping in the Yemen.
Messick, âTransactions in Ibb,â 153.
Gabriel Baer, âḤikr,â Encyclopaedia of Islam, second edition, ed. P. J. Bearman, Th. Biancuis, C. E. Bosworth, E. van Donzel, and W. P. Heinrichs (Leiden: Brill, 1960â2004), 12:368.
There are more than eighty such ârulesâ in the waqf chapter of Ibn MiftÄḥ, Sharḥ al-azhÄr, depending on how one defines a rule.
Here, I mainly refer to al-ShawkÄnÄ«.
For a very good overview, see Donaldson, Sharecropping in the Yemen.
Baber Johansen, The Islamic Law on Land Tax and Rent: The Peasantsâ Loss of Property Rights as Interpreted in the Hanafite Legal Literature of the Mamluk and Ottoman Periods (London: Croom Helm, 1988), 33â34.
In this book, âfair rentâ (ajr, or ujrat al-mithl) is equated with the term âmarket price rent.â This does not necessarily mean the highest possible rent, since issues of predictability and long-term aspects are important in any lease. As for the difference that relates to maintenanceâwhether different types of maintenance of the asset are included in the rent or notâwe cannot make generalizations, but must look at the specific lease or types of leases.
An electronic copy was provided with the gracious help of those at the Muʾassasat ImÄm Zayd b. Ê¿AlÄ« l-ThaqÄfiyya.
âWa yajÅ«zu ijÄrat al-waqf mudda qaṣīra naḥw khamsÄ«n sana wa-tukrah fÄ« l-á¹awÄ«la illÄ an takÅ«n min al-mawqÅ«fÄt al-mashhÅ«ra allatÄ« lÄ taltabisu bi-á¹Å«l al-azmina fa-lÄ karÄha.â YaḥyÄ b. Ḥamza, NÅ«r al-abá¹£Är. The photo of the text discussed is very unclear and the page is unnumbered. The text is in black ink with occasional important words in red. The book has several stamps that say âwaqf Ê¿alÄ JÄmiÊ¿ ShihÄra.â
âYaá¹£iḥḥu taʾjÄ«ruhu ijmÄÊ¿an.â This could also be interpreted as, âIt is valid to rent all of it out, since â¦â instead of âbased on ijmÄÊ¿,â but to rent out only part of the asset in the first place sounds strange.
Ibn al-Murtaá¸Ä, al-Baḥr al-zakhkhÄr, 159.
Faá¹£l. FÄ« bayÄn mÄ yajÅ«zu li-l-mutawallÄ« fiÊ¿luhu wa-mÄ lÄ yajÅ«zu.
Wa taʾjÄ«ruhu dÅ«na thalÄth sinÄ«n.
All the quotations are taken from Ibn MiftÄḥ, Sharḥ al-azhÄr (2003 ed.), 8:271â272, unless otherwise noted.
Liʾanna khilÄf dhÄlika yuʾaddÄ« ilÄ ishtibÄh al-waqf bi-l-milk. Another translation could be: Because a deviation from this [rule] leads to the resemblance of private property. The term ishtibÄh means âsemiâ or âresemblingâ but in other places in the debate the terms labs and iltibÄs is used, and these terms are more related to âconfusion.â
This point is often used to highlight the âmodernâ and âintellectualâ character of the ZaydÄ« tradition in contrast to their âcounterparts,â the SalafÄ«s and WahhÄbÄ«s.
QÄla al-HÄdÄ«, Ê¿alayhi al-salÄm, tajÅ«zu ijÄrat al-waqf mudda qarÄ«ba naḥw sana aw sanatayn dÅ«na al-mudda al-á¹awÄ«la, fa-inna dhÄlika makrÅ«h.
QÄla al-faqÄ«h YaḥyÄ l-Buhaybaḥ wa-tazÅ«lu al-karÄha bi-an yakÅ«nu waqfuhu mustafÄ«á¸an.
QÄla al-faqÄ«h Ê¿AlÄ«: Aw yujaddadu al-ishhÄd Ê¿alÄ l-ijÄra fÄ« kulli thalÄth sinnin.
The validation signs, at least in this systematized form, are probably younger than that sharḥ.
âThe LumaÊ¿ was written by [al-AmÄ«r] Ê¿AlÄ« b. al-Ḥusayn and it has many shurūḥ.â Ibn MiftÄḥ, Sharḥ al-azhÄr, 1:87. Al-AmÄ«r Ê¿AlÄ« b. al-Ḥusayn died 656/1258. However the entry in the biographical dictionary does not explicitly use the title faqÄ«h. Ibn MiftÄḥ, Sharḥ al-azhÄr, 1:74. QÄla al-FaqÄ«h Ê¿AlÄ«: âAw yujaddadu al-ishÄda Ê¿alÄ l-ijÄra fÄ« kull thalÄth sinÄ«n. NaÊ¿am, fa-in ujjira mudda á¹awÄ«la á¹£aḥḥa maÊ¿a al-karÄha, dhakarahu fÄ« l-LamÊ¿.â
It can be argued that there is a second negative category specific to Zaydī contractual law, see the main text below.
The Ghayth is mentioned in chapter 4 in the presentation of Zaydī fiqh texts.
QÄla al-FaqÄ«h YÅ«suf: In kÄna al-muʾajjar lahu á¹£Äḥib al-manÄfiʾ á¹£aá¸¥á¸¥Ä dhÄlika, wa-in kÄna walÄ«yan ka-mutawallÄ« awqÄf al-masÄjid wa-naḥwa dhÄlika fa-shará¹ á¹£iḥḥat al-ijÄra an nafriá¸a li-l-masjid wa-naḥwahu maá¹£laḥa fÄ« á¹Å«lihÄ tafÅ«tu hÄdhihi al-maá¹£laḥa maÊ¿a qiá¹£r al-mudda, wa-illÄ fa-l-ijÄra fÄsida min aá¹£liha, dhakara dhÄlika fÄ« l-zuhÅ«r. The ZuhÅ«r was written by al-FaqÄ«h YÅ«suf b. Aḥmad b. Ê¿UthmÄn al-ThulÄʾī (d. 832/1429), who was a friend of Ibn al-Murtaá¸Ä; Ibn al-Murtaá¸Ä went to him when Ibn al-Murtaá¸Ä was released from prison. He also wrote ThamarÄt al-yÄniÊ¿a wa-l-aḥkÄm al-wÄá¸iḥa al-qÄá¹iÊ¿a (a QurʾÄn tafsÄ«r) and the RiyÄá¸. Ibn MiftÄḥ, Sharḥ al-azhÄr, 1:109â110.
Haykel mentions this, see Haykel, Revival and Reform, 224. See also the QÄnÅ«n al-madanÄ« article 139 where there are indeed five categories, one of them âdepending, suspendedâ (mawqÅ«f). QÄnÅ«n al-MadanÄ« [2002] (Sanaa: WizÄrat al-Shuʾūn al-QÄnÅ«niyya, 2008), 24.
Ibn al-Murtaá¸Ä, al-Baḥr al-zakhkhÄr, 166â167.
Al-FaqÄ«h YaḥyÄ b. Ḥasan al-Buḥaybaḥ (not dated but he âstudied with a person ⦠who was contemporary with Imam YaḥyÄâ that is, shortly before 751/1350. Ibn MiftÄḥ, Sharḥ al-azhÄr, 1:108. Al-FaqÄ«h Ê¿AlÄ« is not mentioned by that title in the biographic dictionary at the beginning of the Sharḥ al-azhÄr. Ibid.
Such as AbÅ« Mudar. Sharḥ al-azhÄr, 1:59.
al-HÄdÄ« Ê¿Izz al-DÄ«n, MajmÅ«Ê¿ rasÄʾil, 2:469â471.
This question was also directed to Ê¿Izz al-DÄ«n: how should a public waqf (waá¹£ÄyÄ qadÄ«ma muá¹laqa) be divided among three mosques entitled as beneficiaries. He states that if the mosques are equal in size and use, the waá¹£ÄyÄ (sic: waqf) is to be divided among them equally. The founder is termed âal-muṣī.â Al-HÄdÄ« Ê¿Izz al-DÄ«n, MajmÅ«Ê¿ rasÄʾil, 2:469.
One may use the term âglosses,â but here the terms sharḥ, footnotes, and secondary footnotes have been used, following the structure of Ibn MiftÄḥ, Sharḥ al-azhÄr (2003 ed.).
âTopicâ (masʾala): It is valid to rent it out, based on ijmÄÊ¿, as its usufruct is the property of the beneficiary (chosen by the madhhab), less than three years only, such as the period of demarcation (taḥjÄ«r) (Y) And it is allowed [to lease it] up to fifty years, and a long [lease] period is reprehensible because of [the long period] causing confusion (iltibÄs) [between waqf and] private property and as in the period of rahn [of the waqf]â Ibn al-Murtaá¸Ä, al-Baḥr al-zakhkhÄr, 5:159.
Both the iḥyÄʾ l-mawÄt and the taḥjÄ«r is found in the Civil Code, article 1242â1253 QÄnÅ«n al-MadanÄ« [2002]. The three year estimate is mentioned in article 1243, sub-article 3.
It is located after KitÄb al-shufÊ¿a (pre-emption) and KitÄb al-ijÄra and BÄb al-muzÄraÊ¿a (one of the forms of sharecropping), followed by the KitÄb al-sharika.
Typically a small pile of rocks at the corners of the plot.
Ibn MiftÄḥ, Sharḥ al-azhÄr, 7:353.
Footnote (1a): Lakinna mÄ l-farq bayna ikhrÄj al-manÄfiÊ¿ Ê¿an milkihi fÄ« ṣūrat al-irth, ka-mÄ qÄlÅ«, lÄ bi-l-irth fa-bi-ḥasabihi wa-lÄ yabá¹ulu? Min imlÄʾ SayyidnÄ á¸¤asan, raḥimahu AllÄh taÊ¿ÄlÄ. YuqÄlu: lÄ farq bayna al-mawá¸iÊ¿ayn fa-yakÅ«nu mÄ taqaddama muqayyidan bi-hÄdha, fa-idhÄ kÄnat al-ijÄra mustafÄ«á¸atan aw bi-juzʾ min al-ghalla á¹£aḥḥa al-taʾjÄ«r. Lakinna yuqÄlu al-farq bayna khushiyat iltibÄs al-waqf bi-l-milk maÊ¿a á¹Å«l muddat al-taʾjÄ«r, wa-fÄ« tamlÄ«k al-manÄfiÊ¿ al-mumalllik qÄʾim maqÄm al-mumallik wa-la yuʾajjaru illÄ bi-mÄ kÄna yajÅ«zu li-l-mawqÅ«f Ê¿alayhi an yuʾajjirahÄ min al-mudda. (Sharḥ sayyidnÄ á¸¤asan, raḥimahu AllÄh.) Footnote (4): Wa-wajhuhu annahu ajjara milkahu wa-huwa al-manfaÊ¿a, sawaʾan kÄnat tuwarrathu Ê¿anhu aw tunqalu ilÄ man baÊ¿dahu bi-l-waqf, bi khilÄf al-mutawallÄ« fa-laysa bi-mÄlik li-l-manfaÊ¿a. (ImlÄʾ SayyidnÄ á¸¤asan, raḥimahu AllÄh al-taÊ¿ÄlÄ.) The words âlÄ bi-l-irth fa-bi-ḥasabihi wa-lÄ yabá¹uluâ refers to the matn of the KitÄb al-AzhÄr (Sharḥ al-azhÄr (2003 ed.), 8:206â207) in the third section of the chapter on waqf. There is another similar note by SayyidnÄ HÄsan there, Ibn MiftÄḥ, Sharḥ al-azhÄr (2003 ed.), 8:207.
In Ibn MiftÄḥ, Sharḥ al-azhÄr (1980 ed.), only â(Y)â is given, as in al-Baḥr al-zakhkhÄr. In the Sharḥ al-azhÄr (2003 ed.), this is given as âImÄm YaḥyÄ.â Donaldson writes about the confusion of these abbreviations (he used al-Baḥr al-zakhkhÄr in his study); he has several theories on which of the potential imams (there were several YaḥyÄs) the abbreviation could refer to. Donaldson, Sharecropping in the Yemen, 97. From this footnote in the Sharḥ al-azhÄr given above in the main text it is clear that the âYâ is Imam YaḥyÄ b. Ḥamza.
Wa-qÄla al-ImÄm YaḥyÄ, Ê¿alayhi al-salÄm, yukrah idhÄ kÄnÄ fawqa khams sinÄ«n, rawÄhÅ« Ê¿Änhu fÄ« (al-Baḥr al-zakhkhÄr). Perhaps âkhamsin sanaâ became âkhams sinÄ«nâ during the process of copying the manuscript.
(Y) wa-yaá¹£iḥḥu ilÄ khamsÄ«n sana, wa-tukrah al-ziyÄda allatÄ« yaltabisu li-ajlihÄ bi-l-amlÄk. Ibn al-Murtaá¸Ä, al-Baḥr al-zakhkhÄr, 5:159.
The actual photograph of the page dealing with the three-year rule in the NÅ«r al-abá¹£Är is slightly out of focus, but the difference between the words âfiveâ and âfiftyâ would have been observable.
KarÄha ḥaáºr tamnaÊ¿u al-ṣīḥḥa maÊ¿a ḥuṣūl al-labs.
Ayy: Mashhūran.
Wa aá¹laqahu fÄ«-l(-BayÄn) wa-lam yansabhu ilÄ aḥad. Note that the BayÄn al-shÄfÄ« came after Ibn MiftÄḥâs Sharḥ al-azhÄr, thus this footnote is an example of how the BayÄn was later âimportedâ into the footnotes of the Sharḥ al-azhÄr.
LÄ maÊ¿nÄ li-tajdÄ«d al-ishhÄd; li-anna qad inÊ¿aqadat Ê¿alÄ wajh fÄsid li-á¹Å«l al-mudda. LaÊ¿alla dhÄlika maÊ¿a Ê¿adam al-Ê¿azm (tadhhÄ«b), wa-ammÄ maÊ¿a al-Ê¿azm Ê¿alÄ dhÄlika min awwal al-amr fa-hiya á¹£aḥīha (q-r-z).
Wa-hÄdha ḥaythu kÄnat yuʾajjirÅ«nahÄ bi-l-naqd, wa-kÄnat tuʾkhadh khufiyyatan, wa-amma idhÄ kÄnat Ê¿alÄ á¸¥iṣṣatihi min al-ghalla, fa-lÄ yuḥtÄj ila ishhÄd li-anna al-muqÄsama fÄ« kulli sana kÄfiyatan (samÄÊ¿ ShÄmÄ«).
The fraction remains the same year after year, while the rent, in terms of absolute amount, depends on the size of the yearly harvest. In Yemen, rainfall varies greatly from year to year and is the most significant factor in the yearly variation in the size of the harvest.
He was chief qÄá¸Ä« under al-Mutawakkil al-QÄsim (r. 1718â27), under al-Manṣūr al-Ḥusayn (r. 1727â48) and into the reign of al-MahdÄ« l-Ê¿AbbÄs, before chief qÄá¸Ä« al-SaḥūlÄ«. al-ShawkÄnÄ«, al-Badr al-á¹ÄliÊ¿, 105â106. See also Haykel, Revival and Reform, 112â113.
Laʾallahu maÊ¿a Ê¿ajzm Ê¿alÄ dhÄlika waqt al-taʾjÄ«r, wa-illÄ lam yanÊ¿aqid (ḥÄshiyat al-SaḥūlÄ«).
Maʿa ʿadam al-labs.
Wa-l-madhhab lÄ yaá¹£iḥḥu (tadhhÄ«b) illÄ á¸¥aythu lÄ yaḥṣulu al-labs, wa-lÄ farqa bayna á¹£Äḥib al-manfaÊ¿a wa-ghayrihi (muftÄ«) (q-r-z).
It could be al-Sayyid IsmÄÊ¿Ä«l b. HÄdÄ« l-MuftÄ« (d. 1783 or 1784), al-ShawkÄnÄ«, al-Badr al-á¹ÄliÊ¿, 189. âAl-MuftÄ«â is his laqab, not a reference to a position. If he was not the author of the footnote, it might have been one of his predecessors with the same laqab, as mentioned in ZabÄra, Nashr al-Ê¿arf, 1:413â415.
Al-Ê¿ibra bi-l-maá¹£laḥa allatÄ« lÄ tuÊ¿ariá¸uhÄ mafsada musÄwiya, wa-lÄ Ê¿ibra bi-l-sinÄ«n al-tabba (min al muÊ¿allif) wa-dhÄlika ḥaythu lÄ yukhshÄ labs wa-naḥwa dhÄlika, wa-ka-dhÄlika kullu ḥukm min aḥkÄm al-sharÄ«Ê¿a idhÄ Ê¿Äradahu mafsada fa-innahu yubá¹al in kÄnat dhÄlika.
al-WÄbil al-maghzÄr al-maá¹Ê¿am li-athmÄr al-azhÄr fÄ« fiqh al-aʾimma al-aá¹hÄr by YaḥyÄ b. Muḥammad b. Ḥasan d. 1582 or 1583. It seems to be one of the many commentaries on the KitÄb al-AzhÄr. See chapter 4.
Ayy: bÄá¹il.
They are of course different and made for different purposes. Al-TÄj al-mudhhab is univocal and al-Baḥr al-zakhkhÄr is more a work of comparative fiqh that contains references to validity beyond ZaydÄ« scholars and imams.
The MuÊ¿assasat al-ImÄm Zayd b. Ê¿AlÄ« l-ThaqÄfiyya kindly provided me with a Word file of the chapter of waqf of a forthcoming printed edition of the Taftīḥ.
Al-Ruqayḥī, al-ḤibshÄ«, and al-ÄnisÄ«, Fihrist makhá¹Å«á¹Ät, 2:993â998; thirteen manuscripts are listed.
Liʾanna mafhÅ«mahu annahu lÄ yaá¹£iḥḥu taʾjÄ«r al-waqf thalÄth sinÄ«n fa-á¹£ÄÊ¿idan muá¹laqan, wa-yaá¹£iḥḥu dunahu muá¹laqan wa laysa ka-dhÄlik.
Ibn MiftÄḥ, Sharḥ al-azhÄr also quotes al-HÄdÄ«âs view before adding the more lenient arguments; this is a way to claim adherence to HÄdawÄ« doctrine as the core of classical Yemeni Zaydism or HÄdawÄ«-Zaydism.
al-ShawkÄnÄ«, al-Sayl al-jarrÄr, 3:70â71.
Ibid.
Wa amma taÊ¿lÄ«l al-taqdÄ«r bi-hÄdhihi l-mudda.
al-ShawkÄnÄ«, al-Sayl al-jarrÄr, 3:70â71.
His position on maá¹£laḥa as a source of law is discussed in chapter 4 and also partly in chapter 5. In essence, he argues against Zaydism for being based on âhumanâ views, while arguing that it is necessary to take out the human sources and revert to the textual evidence from the QurʾÄn and Sunna.
Fa-inna al-awqÄf tashtahiru wa-taáºharu ḥaythu lÄ taltabisu bi-l-amlÄk baÊ¿da mudda á¹awÄ«la.
For example, his contemporary ḤanafÄ« scholar Ibn Ê¿ÄbidÄ«n states the opposite, namely that this is the very argument against long-term leases. See Miriam Hoexter, âAdaptation to Changing Circumstances: Perpetual Leases and Exchange Transactions in Waqf Property in Ottoman Algiers,â Islamic Law and Society 4, no. 3 (1997), 326. Ibn Ê¿ÄbidÄ«nâs comment is made in the matn, under the section on the three-year rule. He gives views for and against the three-year rule, but concludes that the judge can prolong the lease if it is in the interest of the waqf. Ibn Ê¿ÄbidÄ«n, Radd al-MukhtÄr, 4:400â401.
Fa-in kÄna hÄdha al-tajwÄ«z mimmÄ yaḥṣul mithluhu li-(la-?)man ilayhi al-wilÄya faÊ¿ala mÄ yaqtaá¸Ä«hu al-maá¹£laḥa.
See general information about al-TÄj al-mudhhab in Haykel, Revival and Reform, 215â216.
al-Ê¿AnsÄ«, al-TÄj al-mudhhab, 324.
Faá¹£l fÄ« bayÄn mÄ yajÅ«zu li-l-mutawallÄ« fiÊ¿luhu wa-mÄ lÄ yajÅ«zu wa-mÄ yajibu ⦠wa-yajÅ«zu lahu taʾjÄ«ruhu dÅ«na thalÄth sinÄ«n lÄ akthar min dhÄlika li-an-lÄ yaltabisa bi-ghayrihi. QÄsim b. IbrÄhÄ«m, al-ÄnisÄ«, and al-Sarḥī, TaysÄ«r al-marÄm, 152.
Manṣūr, al-Mawkib, 279.
WizÄrat al-Shuʾūn al-QÄnÅ«niyya, QÄnÅ«n al-waqf al-sharÊ¿Ä«, 10â11. Articles 72â73 in the law of 1992, but articles 68â69 in the law of 1976. See also Manṣūr, al-Mawkib, 321â322.
MÄddat 72: lÄ yajÅ«zu li-l-mutawallÄ« taʾjÄ«r Ê¿ayn al-waqf aw amlÄkihi li-akthar min thalÄth sanawÄt sawÄʾan kÄna li-l-ḥirth aw li-l-binÄʾ. Wa-lÄ tamnaʾu dhÄlika min tajdÄ«d al-ijÄra maÊ¿a murÄÊ¿at mÄ huwa manṣūṣ Ê¿alayhi fÄ« l-mÄdda al-tÄliya. MÄddat 73: lÄ yajÅ«zu li-l-mutawallÄ« taʾjÄ«r Ê¿ayn al-waqf aw amlÄkihi bi-aqall min ujrat al-mithl zamÄnan wa-makÄnan.
MijÄllÄ«âs book has a more historical and social science perspective. He does mention the three-year rule briefly in connection with a case he led as a lawyer for the awqÄf of Taâizz against actors usurping a waqf, MijallÄ«, al-AwqÄf fÄ« l-Yaman, 83.
al-QirshÄ«, al-AwqÄf wa-l-waá¹£ÄyÄ, 92.
QÄnÅ«n al-MadanÄ« [2002], 112â113.
Here the language seems similar to that of ḤanafÄ« waqf leases, as in the expression ghabn fÄḥish (criminal fraud) as in al-ZuḥaylÄ«, al-Fiqh al-IslÄmÄ«, 7689. See also the quotation of Baber Johansen at the beginning of this chapter.
WizÄrat al-Shuʾūn al-QÄnÅ«niyya, QÄnÅ«n al-waqf al-sharÊ¿Ä«, 18.
al-ZuḥaylÄ«, al-Fiqh al-IslÄmÄ«, 7688â7692.
This probably refers to the work also called al-JÄmiÊ¿ al-wajÄ«z by Muḥammad b. Muḥammad al-BazzÄz (d. 827/1424).
al-ZuḥaylÄ«, al-Fiqh al-IslÄmÄ«, 7689â7690. Van Leeuwen notes that al-RamlÄ« was against such subsequent contracts and similar devices to create long leases. Van Leeuwen, Waqfs and Urban Structures, 56.
Miriam Hoexter writes about perpetual leases (Ê¿inÄʾ and ḥikr), but she does not mention the three-year rule. Hoexter, âAdaptation to Changing Circumstances.â See also Baber Johansen, chapter 2: âThe Contract of Tenancy (IjÄra): The Commodification of the Productive Use of Land,â and the section in chapter 7: âThe âContractually Fixed Rentâ and the âFair Rentâ: The Special Status of Waqf and Big Estatesâ in Johansen, The Islamic Law on Land Tax and Rent, 33â34.
al-ZuḥaylÄ«, al-Fiqh al-IslÄmÄ«, 7690.
⦠wa-lÄ baʾs min an takÅ«na muddat al-muáºÄraÊ¿a akthar min thalÄth sinÄ«n in kÄna dhÄlika anfaÊ¿ wa-aá¹£laḥ li-l-waqf. QadrÄ« Pasha, KitÄb QÄnÅ«n al-Ê¿adl wa-l-iná¹£Äf li-l-qaá¸Ä Ê¿alÄ mushkilÄt al-awqÄf (Maá¹baÊ¿at al-KubrÄ l-AmÄ«riyya bi-BulÄq Miá¹£r al-MaḥmÄ«ya, 1906), 54â55.
AbÅ« Zahra, MuḥÄá¸arÄt fÄ« l-waqf, 111.
Here one could also mention the work of ShalabÄ«, AḥkÄm al-waá¹£ÄyÄ, where the author does not mention these problems related to leases.
Al-mÄdda 633 min al-taqnÄ«n al-madanÄ«, Fiqrat 1. âLÄ yajÅ«z li-l-nÄáºir bi-ghayr idhn al-qÄá¸Ä« an yuʾajjira al-waqf mudda tazÄ«du Ê¿an thalÄth sanawÄt wa-law kÄnat dhÄlika bi Ê¿uqÅ«d mutarÄdifa, fa-idhÄ Ê¿uqidat al-ijÄra li-mudda aá¹wal inqaá¸at al-mudda ilÄ thalÄth sanawÄt. AmÄ«n Ḥasan Aḥmad and Ê¿Abd al-HÄdÄ« Fatḥī, MawsÅ«Ê¿at al-awqÄf: TashrÄ«Ê¿Ät qaá¸ÄʾâiftÄʾ: FatÄwa al-awqÄf mundhu 1890 ḥatta 1997 (Alexandria: ManshÄt al-MaÊ¿Ärif, 2003), 353â356.
Ibid., 355.
The three-year rule is mentioned very early in the first section (chapter) of the Book of Hire. âIt is to be observed that the expression of our author âfor whatever termâ denotes that hire is valid, whether it be for a long or a short term, as the term is ascertained, and men, moreover, frequently require a long term. If, however, the Mootwalee [procurator] of a charitable appropriation let out the appropriated article, the hire of it for any long term is made unlawful, lest the lessee might be enabled to advance a claim of right to it. Hire for a long term signifies for any term beyond three years. This is approved.â Charles Hamilton, The Hedaya, or Guide: A Commentary on the Mussulman Laws (Lahore: Premier Book House, 1963), 490.
al-ZuḥaylÄ«, al-Fiqh al-IslÄmÄ«, 7690â7691.
Madelung, âal-RassÄ«.â
al-ZuḥaylÄ«, al-Fiqh al-IslÄmÄ«, 7691.
al-ShirbÄ«nÄ«, MughnÄ« l-muḥtÄj.
Ibn Ḥajar, Tuḥfat al-muḥtÄj.
MuḥyÄ« l-DÄ«n AbÅ« Zakariyya YaḥyÄ b. Sharaf al-NawawÄ« (d. 676/1277).
Wa idhÄ ajjara al-nÄáºir fa-zÄdat al-ujra fÄ« l-mudda aw áºahara á¹Älib bi-ziyÄda lam yanfasikhu al-Ê¿aqd fÄ« l-aá¹£aḥḥ. al-ShirbÄ«nÄ«, MughnÄ« l-muḥtÄj, 2:507.
Ibid., 2:507â509.
Ibid., 2:508. Ibn Ḥajar, Tuḥfat al-muḥtÄj.
An unpaginated downloadable file was used, but the structure follows al-NawawÄ«âs mukhtaá¹£ar.
Ibn Ḥajar, Tuḥfat al-muḥtÄj.
al-ZuḥaylÄ«, al-Fiqh al-IslÄmÄ«, 6791â6792.
For leases of shops in the market area of Sanaa, see Dostal, Der Markt von á¹¢anÊ¿Äʾ.
Dresch uses the term âcollective holding.â For instance, he refers to the large landholdings of the al-Aḥmar family. See Dresch, Tribes, Government, and History in Yemen, 211.
Messick, âTransactions in Ibb,â 153â154.
See, for instance, the ordering of the state waqf administration during Imam Aḥmad in Hovden, âFlowers in Fiqh,â appendix 2; and the registration of a public waqf in ibid., appendix 3.
For a fuller account, see chapter 3 and the references to Manṣūr, al-Mawkib, Messick, âTransactions in Ibb,â and al-FarrÄn, Athar al-waqf.
For a reference to the use of this term, see Messick, âTransactions in Ibb,â 150. He also points out that á¸amÄn was more common in leases of land in irrigation schemes.
For ZaydÄ« debates over the legality of mushÄraka in Yemen, see Donaldson, Sharecropping in the Yemen, 93â124.
ZabÄra, Nashr al-Ê¿arf, 2:235â237.
This is also indicated in Messick, âTransactions in Ibb,â 173â174.
See ibid., 172.
Approximately 41 litres. See Donaldson, Sharecropping in the Yemen, 141.
A miswaddat ajÄʾir Ê¿araá¹£Ät in 1918 is mentioned in Serjeant and Lewcock, á¹¢anÊ¿Äʾ, 429.
Personal communication with Ê¿AlÄ« Muḥammad al-FarrÄn, a high ranking employee in the ministry of awqÄf and author of Athar al-waqf.
Donaldson, Sharecropping in the Yemen, 142â144.
For a detailed study of the size of the sharecropping fraction, see ibid., 159. See also 59â61. He points out that the data is not built on a large survey, rather it is mainly from the highlands.
See, for instance, the treatise KitÄb al-Ê¿InÄʾ mentioned in Anne Regourd, Catalogue cumulé des manuscrits de bibliotèques de ʽAbd al-Rahman al-Hadrami, fasc. 1: Zabid manuscript catalogue (Sanaa: Centre Français dâArchéologie et de Sciences Sociales (CEFAS)/SFD, 2006). This work is also listed in al-Ruqayḥī, al-ḤibshÄ«, and al-ÄnisÄ«, Fihrist makhá¹Å«á¹Ät. âBayÊ¿ al-Ê¿inÄʾâ is a legal work mentioned in al-Ḥaá¸ramÄ«, ZabÄ«d, 252. It is probably the same work. The author was âan Egyptian scholarâ Ibn SirÄj, who concluded that if the tenant invested in the improvement of the land, then this investment may constitute a sale (and thus private property of the tenant). Al-Ḥaá¸ramÄ« adds that this became practise in Zabid, but the land could not be âsold,â and the term âtransferâ (naql) was used instead.
al-Ḥaá¸ramÄ«, ZabÄ«d, 255.
Ibid., 256â257.
For the sake of clarity, this fatwÄ is treated in its entity at the end of chapter 7.
Typically, the newer waqf laws do not refer to the old term Ê¿Ämil, rather they use terms like the mutawallÄ«, or they refer to the ministry with the abstract term al-jihha al-mukhtÄṣṣa (âthe relevant authorityâ).
WizÄrat al-Shuʾūn al-QÄnÅ«niyya, QÄnÅ«n al-waqf al-sharÊ¿Ä«, 29.
al-Ê¿AmrÄ« and Serjeant, âAdministrative Organisation,â 152.
Messick, âTransactions in Ibb,â 261.
The city is divided into zones; the central commercial areas have higher rents than other areas.
Personal communication with former waqf minister, Aḥmad al-ShÄmÄ«, Jan. 2010.
WizÄrat al-Shuʾūn al-QÄnÅ«niyya, QÄnÅ«n al-waqf al-sharÊ¿Ä«.
Ibid., 21â22.
Ibid., article 22, QÄnÅ«n al-waqf al-sharÊ¿Ä«, 23. The Ê¿inÄʾ al-áºÄhir only refers to old leases about which the mutawallÄ« did not protest in the past; in new leases there is no Ê¿inÄʾ, since the mutawallÄ« must first approve any repair or maintenance of the asset undertaken by the tenant. The value of this maintenance must be explicitly stated and recorded; the value then takes the form of a loan which can be paid as a reduction in the rent, but only for a limited time and the whole transaction and operation must be clearly defined and documented. In agricultural leases, such a loan cannot lower the rent more than 75 per cent (article 15).
For an English translation of this specific lease contract, see Hovden, âFlowers in Fiqh,â appendix 7.
Such as Imam Aḥmadâs attempt to enforce the rule in Zabid as mentioned above.
For such a standard lease contract, see Hovden, âFlowers in Fiqh,â appendix 7.
The three-year rule is not normally mentioned in the waqf documents I have analysed. The three-year rule is mentioned in the waqf document from 1552 for the Madrasa al-NaáºÄrÄ« as edited by al-AkwaÊ¿, al-MadÄris, 355. For the mention of the three-year rule in waqf documents in Iran, see chapter 11, âOuqÄf,â 230â237. See also Ann Lambton, âAwqaÌf in Persia: 6thâ8th/12thâ14th Centuries,â Islamic Law and Society 4, no. 3 (1997): 298â318. For waqf in Persia in general, see Lambton, Landlord and Peasant in Persia (London: Tauris, 1969), 234â235.