وقف

Following the renowned majority the Imᾱmῑ jurists who commonly define endowment (waqf) as the lien of the object (habs 'ayn) and the limitation of its benefits (tasbῑl al-naf'), Article 55 of the Iranian Civil Code also presents the same definition for the endowment. The word "objective ('ain)" necessarily and literally is interpreted in jurisprudence as the properties among material and tangible objects, which are capable of endowment. In other words, properties such as rights, debts, and benefits are excluded from the endowment, for they are not objective and tangible by senses. Therefore, shares of joint stock companies are excluded from the subject area of the endowment contract. Some believe that the meaning of the word "objective" in combination with "objective rights" does not necessarily mean tangible and material property; because in the current business practice, it is not necessary and mandatory to issue shares on the stock sheet, and it will be possible to imagine shares without the existence of a stock sheet. Moreover, they consider the shares to be the same or somehow to be the same based on the relevant laws and regulations. Seemingly, the analysis of the nature of the shares as a newly-emerged and privileged property that has wealth concludes that the condition of endowment of the shares is that the owner has paid the remainder of nominal amount at the time of subscription; because as long as the said obligation is not fulfilled, the joint stock company cannot endow it according to the rules contained in Articles 35 and 36 of the 1968 legal bill. Therefore, the endowment of collateral shares of managers, shares of fixed-term companies, and shares for which the obligation to pay the remaining amount has not been fulfilled will be void. The questions raised here are, "If the price of the endowment shares of the company increases, will this increase also be included in the endowment?" "Does the endowment of a part of the company's shares by the shareholder cause other shares of the company to be considered endowment as well!?" Using the descriptive-analytical method and based on library sources and relevant laws, this research aims to answer the questions and provide a suitable solution to the issue. In conclusion, the increase in the company's stock price will lead to its being considered as an endowment. Additionally, the endowment of a part of the company's shares does not legally cause the endowment of other shares of the company.

In Islamic jurisprudence and, accordingly, in law, their creation is divided into two general categories of contracts and agreements, the realization of which requires acceptance and the latter does not require acceptance. of course, the jurists disagree on the validity of some constructions, which considering the rationality and signature of the transaction rulings, discovering a clear rational criterion and rule for the need or lack of acceptance can resolve the differences of opinion. Imam Khomeini is one of the contemporary jurists who have raised this issue independently and while presenting a rational rule, they have applied it to two of the controversial creations, endowment and will. In this article, after taking a look at the development of the concept of marriage and marriage in Imami jurisprudence, we examine and evaluate the view of Imam Khomeini in the rule of contract with the title (possession within the scope of the control of others). Also, two other points of view that were used from the statements of Martyr Sadr and Ayatollah Khoei, titled (Relating to the affairs of others) and (Mutual obligation) were examined and the ratio between the three precepts was measured and after presenting the acceptable precepts, the Imam's view on endowment and will have been criticized and validity of both contracts has been proven with different expressions.

Hokr is one of the emerging issues in Islamic jurisprudence, which is reflected in the laws of Islamic countries and is known as one of the rights that are subordinate to ownership. The right of ownership is the concrete right that arises for him by leasing the endowment property and ordering the construction of buildings by the tenant. The right to construct a building in the endowment property is granted to the tenant in exchange for a certain amount other than the annual salary. Although hokrin the laws of Islamic countries originates from Islamic jurisprudence, it sometimes has differences with it acceptance is one of the newly developed issues in Imamiyyah jurisprudence, which was included in the post-revolution laws in Iran's legal literature. Acceptance is the payment of a percentage of the value of the endowed property in its rent for the use of the endowed property and the creation of the right to build nobles in the endowed property. The necessity of discussing the nature of Hokr and acceptance is because acceptance was a kind of adaptation of Hokr, and for this reason, it is necessary to examine the substantive distinction of Hokrand acceptance in Islamic jurisprudence and the laws of Iran and Islamic countries. With descriptive and comparative analytical methods, it was found that Hokr, contrary to the right of acceptance, can be assigned in the form of other contracts in addition to the lease contract, and in the jurisprudence of the Islamic schools, unlike the Imamiyya jurisprudence, it is only reserved for unused land. The term of assigning the property is fixed, and in the case of subrogation, the term is indefinite. These distinctions from the receiver show a different aspect from the hokr, which indicates the independence of the receiving institution from the hokr.

Taking into account the globalization of the economy and the interrelationship between the knowledge of law and economics, today we are witnessing the redefinition of historical economic concepts and standards with new criteria. Thus, in Iranian law, whose legislative system originates from Imamiyyah jurisprudence, attention to comparative studies is of special importance, which requires the dynamic of jurisprudence issues even more than before. In the meantime, endowment of securities as a subject is involved in some disagreements. However, despite the existence of some arguments in Imamiyyah jurisprudence, such as the non-identity of securities, the contradiction of benefiting from them with the survival of the subject, in this research, which is based on library information along with developed comparative reasoning, it has been determined that the Rationally, the non-limitation of the endowment conditions in the Shari'ah, and the reference to the generality of the proofs of authenticity, prove the possibility of this issue. In the meantime, it is also possible to justify the endowment of securities by referring to the economic principles of reliance cost and outcome-oriented and based on works such as the role of endowment in reducing inequality and its importance in productivity growth, from the point of view of economic rights.

The endowment is one of the traditional economic institutions that have been prevalent among different nations for a long time and according to a more correct point of view, it is not considered as the truth of Shari'a law. In spite of this, in the jurisprudential texts of the Imamiyyah, several conditions have been listed for the validity of this legal act, which will naturally limit its scope. The following article tries to criticize the existing structure and make a new plan by referring to library sources and by using the descriptive-analytical method, in the two fields of jurisprudential foundations and then the corresponding laws. The analysis of the data indicates that the rare generalities governing the endowment demand "freedom of the will of the Endower". The result of these arguments is that the structure of the endowment is exactly similar to the structure of contract by compromise (ṣulḥ), which the holy lawmaker considered the will of both sides of the contract, and made the provisions of its legislation " confirmation of the will of the Endower", just as in the case of ṣulḥ, "confirmation of the compromise of the parties" has been legislated. Finally, based on the innovation of the paper, the lawmaker has confirmed the will of the endower within the scope of its customary structure and has not imposed any special restrictions on the endowment except for the general rules of Shari'a such as the permissibility of the benefit or the legitimacy of the direction and the like.

Iranian Civil Code, in article 56, explicitly considers endowment (waqf) as one of the contracts, necessitating the acceptance of the designated beneficiary (mawqufon_ālayh) for the realization of a specific endowment, and the acceptance of the ruler in case of a general endowment. This is despite the emergence of differing viewpoints among Imāmīya jurists, including the following: 1. Endowment is one of the unilateral obligations (īqāʿāt), thus acceptance is not necessary regarding endowments. 2. Endowment is a contract; thus, acceptance is necessary in its realization in addition to the offer (ījāb).  3. Those who distinguish between specific and general endowments hold that in general endowments acceptance is not necessary, so it is considered a unilateral obligation (īqāʿ), however in specific endowments the acceptance of the designated beneficiary is the necessary condition for the validity of endowment.The present research uses the analytical-descriptive method and adopts the library approach. The findings show that endowment is one of the unilateral obligations, thus acceptance is not one of its conditions. Therefore, article 56 of the Civil Code needs to be revised.

In Islamic jurisprudence, special provisions have been established for natural resources, especially forests and pastures. According to Shia jurists, natural resources, including Anfal, belong to the Imam. If it is pasture and forest that has been dedicated. This endowment is valid and valid when humans are involved in the creation of that forest and pasture. But the important issue under discussion is that the inhabitants of the forests of northern Iran and other forest parts of the country for many centuries and based on history and very old objects discovered in places in the northern provinces of Iran and other similar places, have a history of several thousand years of residence. They have been in the heart of the forests and considered themselves the owners of those areas. This sense of ownership in the forest made some believers dedicate forest lands under their control for various purposes. With the establishment of the Nationalization of Forests Law, the challenge of endowment of these lands was raised, therefore the law accepted the endowment lands before the adoption of this law, but did not accept the endowments after that due to the endowment of property by someone else. This research is of applied type and based on jurisprudence and legal sources, it examined the validity of forest land endowments after the approval of the nationalization law of forests by means of content analysis. The result of the research is: If a person rehabilitates a ruined forest, that part belongs to him and there is no problem in donating it.

In the common interpretation of jurists, the distinguishing feature of endowment (waqf) compared to other forms of charity is the dedication of the principal asset along with the allocation of its benefits. Based on this understanding, "permanence" is considered one of the essential characteristics of endowment. On the one hand, this approach necessitates the preservation of capital from financial circulation and wealth reproduction. On the other hand, the necessity of following the endower's will and caution in ensuring the compliance of the endowment's status with it sometimes leads to legal deadlocks. Moreover, with the acceptance of the aforementioned assumption, public acceptance of endowment will be less; because the endowed property usually has a significant economic value. The proposal that can be made to address these dilemmas is to institutionalize "temporary endowment" and promote it. This is an institution that many Islamic countries have occasionally pioneered and succeeded in utilizing, following a less well-known jurisprudential fatwa. In our country, this institution can also be used as one of the best mechanisms for realizing the policies of the Economic Strength. In this paper, the authors try to weaken the foundations of the dominant view by describing and analyzing library resources and relying on the opinions of some great scholars. Then, they strengthen the theoretical basis of "temporary endowment" and finally propose the introduction of this institution into the legal system.

Among the contracts in law and jurisprudence, there are still contracts that, despite their applications, remain unknown and unused because they have not been properly introduced. One example of such contract is the Habs contract whose framework, which also defines it, is dealt with ambiguously and summarily. The ambiguity is easily noticeable in the conflicting opinions of jurisprudents, which baffle the readers and have led to jurists either ignoring it or touching upon it most briefly. The lack of literature on this concept has caused this useful contract not to receive the attention it deserves, and it is even classified as an innominate contract by some jurists, and summarily tapped into by legislators. Therefore in general, we face a challenge in knowing it, its rules and position and applying it. To respond to this challenge and establish a framework for the Habs contract, it is necessary to first explain the correct concept of Habs in jurisprudence and law and identify its position in the Iranian Legal System. Therefore, this paper intends to bridge a gap in law and jurisprudence, compensate for the brevity of law, resolve the ambiguity and obscurity, delineate the concept of Habs, and, finally, identify and stabilize the position of this useful contract in Iranian Law in terms of recognition of rules and effects in statutory laws. The current descriptive–analytical study first distinguishes different types of Habs contracts by categorizing various jurists’ and jurisprudents’ opinions in this area and criticizing them, and then arrives at a proper definition of Habs in common, general and particular senses. Afterward, using the insight gained about Habs and considering the requirements for a contract to be nominated, the position of the Habs contract is established in the Iranian Legal Systems as a nominate contract in the light of relevant rules and regulations.

Endowment has been associated with various ups and downs in different periods, including the Seljuk period. The economic aspects of endowment in the Seljuk period have not been investigated, and in this paper, while explaining the economic functions of the endowment in the Seljuk period, its difference with the economic trust has been investigated.

This paper is descriptive and analytical and library method is used.

Ethical Considerations: 

In this paper, the originality of the text, honesty and trustworthiness are observed.

Endowment expanded during the Seljuk period and had economic functions in this period. The economic functions of Endowment in the Seljuq period include construction measures and the establishment of caravanserais and aqueducts, which were established and managed through the income from Endowment. Endowment can be effective in reducing poverty and creating employment and fairer distribution of economic resources. Regarding the difference between endowment and economic trust, the findings show that endowment and trust are formed in different cultural contexts. In creating an endowment, the primary motive and purpose is the intention of closeness and creating charity, but the institution of trust was created because in the Middle Ages, the rules of common law prevented the inheritance of land, so trust is an escape from the rules of common law. In spite of the similarities, the trust institution has fundamental differences with the endowment in terms of its nature, subject, powers of the trust as a manager, transfer of the property subject to the trust.

The economic functions of endowment should be more focused and used in line with economic growth and development.

The right of goodwill and the right of business and occupation are both of the accrued rights, and while they have similarities, they are different from each other. Goodwill is an amount that the owner takes from the tenant at the beginning of the lease, apart from the leased property, in order to rent and transfer the place to him, but the right to earn or trade or profession is a right that is created as a result of economic prosperity in the place and due to the activity of the tenant. comes. In some cases of endowment of commercial properties, there is a conflict between the two mentioned rights and endowment rights, which has many consequences in practice. If the commercial property is leased with the right of goodwill or the right of occupation is assigned to it, with the passage of time, there will be practically no benefits to spend for the purpose of endowment. On the other hand, the laws have recognized both the right of goodwill and the right of business and profession. Based on this, in case of stopping the lease or selling the endowment property or changing its use or any action that causes the loss of the provisions of the original contract, if the tenant has not violated the provisions of the law and the original contract, there is no right to ignore these acquired rights. However, if the tenant's violation is confirmed, or if the tenant has closed the leased property during the lease period, he will not have the right to trade, because basically, the tenant has no right to qualify for the privileges of commercial premises. Regarding the endowment rights, the laws and consensus of jurists show that there are two solutions in the above conditions: 1- Changing the use and revitalizing the endowment, 2- Ending the endowment.

The way to manage waqf (Arabic: وقف, endowment) is one of the main issues in the endowment contract. The responsibility of the management of the endowed property rests with the administrator (Arabic: متولی) according to the opinion of jurists and also the civil law. The administrator is usually appointed by the founder (Arabic: واقف, Wāqif) during the endowment. Now, the question arises who will be the administrator, if the founder has not appointed the administrator? Article 81 of the amendment of the Civil Code has identified the custodian as the ruler in public endowments, which does not have a specific custodian. According to Clause 1 of Article 1 of the Law on Institutions and Powers of the Organization of Hajj and Endowments and Charitable Activities (Affairs), approved on December 23, 1984, the administration of general endowments that do not have an administrator or have unknown administrators and if the expedient of the endowment and the next generation or resolving the dispute of beneficiaries of an endowment (Arabic: موقوف علیهم) are subjected to the intervention of the guardian of the Islamic jurist in private endowment (endowment for the benefit of certain individuals) will be delegated to this organization from the date of approval of this law. However, the opinions of jurists differ where the founder does not appoint an administrator in the endowment. Some believe that the administration (trusteeship) is with the beneficiaries of an endowment in both types of endowments. A group considers the administration as the ruler in every kind of it. Some believe that the administrator in the general endowment is the ruler and the beneficiaries of an endowment bear the mentioned responsibility in the private endowment. It was concluded, by analytical-descriptive method and using the library method, in this study that the administrator of the endowed property is the ruler in cases where the founder does not specify the administrator in the endowment, and there is no difference between the general endowment and the private endowment in this regard.

As soon as the Foundation is made, the objective right that existed between the endowment and the endowment property disappears and the endowment property becomes the property of the endowment legal entity. Therefore, without doubt, the Foundation cannot make any seizure in the Foundation; for example, it cannot exclude some of the Foundation against them from the number of Foundation against them. The question arises as to whether the Foundation can retain the right to expel some of the Foundation against them at any time, provided that the Foundation is written on condition. The Civil Code has remained silent in response to the present question. Jurists and scholars disagree on the answer to this question. Some have considered this condition to be correct, and some believe that such a condition is invalid, and some have elaborated on the differences between the minor and the major. In the present study, which is based on a descriptive-analytical method, it has been concluded that if the condition for dismissal of some endowments against them is by providing a criterion that after the endowment, some endowments against each other are automatically dismissed, this condition is correct and whenever the provisions of the condition giving authority to the Foundation to expel some of the endowments is against them, such a condition is invalid and ineffective.

Human beings today have a great place for their natural resources and environment. In Islamic jurisprudence, special rules have been set for natural resources such as pastures and forests. One of the important jurisprudential issues about forests and pastures is to study the possibility of endowment of these God-given riches. However, Islamic scholars have not opened an independent chapter on the endowment of these sources. Using bibliographic sources and descriptive, analytical and comparative methods, this study examines the reasons for the possibility of endowment of pastures and forests by individuals, legal entities and Islamic rulers in Imami and Hanafi jurisprudence - as the most popular public religion. Rational classification and comparison of the reasons for each of the aforementioned species provide the basis for the fatwa on the validity of the endowment of pastures and forests by these individuals in absolute or conditional terms and pave the way for the implementation of this type of endowment in society. According to the findings of this study, according to both religions, endowment of pastures and forests is permissible for natural persons if acquired. The endowment of these resources by the Islamic ruler and legal entities - of course with the permission of the ruler - is permissible in Imami jurisprudence, but in Hanafi jurisprudence this endowment by the above-mentioned individuals will not be permissible without acquiring ownership due to lack of primary ownership.

The legitimacy of Waqf (endowment) of bank note has benefits due to the economic transformation that society needs. The legislator in Article 58 of the Civil Code, which has a jurisprudential background, considers the subject of endowment as non-consumable property. Money is consumable property; therefore, the validity and invalidity of its endowment for the purpose of normal use and transfer of ownership is a matter of controversy. Some reasons have been established for the validity of that endowment some of which have been accepted by a range of jurists. The latter group is of the opinion that if that contract is not valid as a Waqf, it is legitimate as an independent contract. The other opinion is also correct according to some other authorities. The nature of paper money, the legitimacy of endowment of banknotes and the nature of that contract are questions that we are seeking to answer. Considering this legal act as a Waqf is, due to the weakness of the evidence, ijtihad against the text, but the said Waqf as a nameless contract, with regard to the acceptance of the principle of freedom of contract in jurisprudence and statutory law, the unity of the criteria of Article 758 of the Civil Code with Article 10 of that law, the principles of correctness, permission, necessity and lack can be correct.

Regarding the religious endowment, a discussion is raised among the jurists and researchers about the position of the intention of closeness to Allah in religious endowment and therefore the result of its essence. The Civil Code, which examines the rulings on religious endowment, has not stated the necessity of stipulating the intention of proximity in religious endowment. There are three views among jurists in jurisprudence; some consider the intention of proximity in religious endowment as a condition of correctness, and some deny the condition of the intention of proximity. The third group also elaborate between general and specific religious endowment. They consider intention as a condition for general endowment but not specific endowment. The present study, using the analytical-descriptive method and relying on the library method as well as the originality of the absolute, the validity of the infidel’s religious endowment, the lack of reason for the necessity of the intention of proximity, it has been concluded that the intention of proximity is not a condition for religious endowment. The silence of Civil Law can also be attributed to the acceptance of this theory.

The purpose of this study is to perform an analytical study of religious endowment (waqf) and to provide a model to institutionalize endowment culture in the universities and higher education institutions. This research has a hybrid strategy. Therefore, the studied population are qualitatively and quantitatively different. The qualitative part of the statistical community includes experts in the field of endowment. The quantitative population studied in this study includes all donors and high level managers of universities and institutions of higher education of Hormozgan province, whose number is 135 according to statistics. For quantitative analysis and to test the hypotheses related to the components of the model and the whole model of the research, T-test is used. For this purpose, SPSS version 22 is used. For the qualitative part, the grounded theory approach and Maxqda10 software are used. The research findings show that this research is a model consisting of six dimensions (education, facilitator, strategies, culture, barriers, and results) and 42 components. It was shown that universities and higher education institutions should pay attention to the variables of education, facilitator, strategies, culture, barriers, and results in order to move towards the institutionalization of endowment.

One of the main issues about waqf is the divisions that are made about it and each of them observes a specific direction of waqf and expresses certain rules and effects about different types of waqf. For example, the waqf has been divided into two types of "general waqf" and "special waqf" based on the intention of the endower and determining or not determining the beneficiaries of waqf.However, a new division of the endowment can also be imagined, which is based on the characteristics of the endowment property, in which the possibility or impossibility of simultaneous use of the beneficiaries is the criterion of classification. Accordingly, endowment is divided into two types of "fixed endowment" and "circulating endowment" that this research - as the first research work in this background - examines it in a descriptive-analytical way. The purpose of this study is to introduce and theoretically analyze this type of endowment based on the reasoning views of Imami jurisprudence and its necessity is to identify a new type of endowment that differs from other types of endowment. In the case of a circulating endowment, the endowment property is given to the beneficiaries of waqf in a sequential manner, and they benefit from the endowment in a rotating manner, and each beneficiary, after the use, gives it to the other person. The results of the research indicate the reasons for the legitimacy of the endowment for this new type and the existence of conditions for its validity.