Does the ownership of property transfer and is the dedication (Waqf) immediately binding merely upon verbal declaration?
General Chapter
Al-Mughni
Book of Endowments (Awqaf) and Donations
Primary text
Ownership transfers and the dedication (Waqf) becomes immediately binding solely upon the verbal declaration, because the dedication is established thereby. This view is supported by the general understanding derived from the text. The evidence for this is derived from a narration concerning Umar, peace be upon him. Furthermore, because the dedication prevents sale, gift, and inheritance, it must be binding immediately, similar to manumission (Ataq). It differs from a gift because a gift is absolute transfer of ownership, whereas Waqf is the permanent dedication of the principal asset and the perpetual dedication of its usufruct, making it more analogous to manumission; thus, associating it with manumission is more appropriate.
Supporting text
There is a different narration from Ahmad, may Allah have mercy upon him, stating that the dedication is not binding until physical possession (Qabd) is taken and the dedicator transfers it from his control. Ahmad stated that the recognized form of Waqf is when the dedicator transfers it from his hand to another and appoints someone to manage it. This view was chosen by Ibn Abi Musa and is the position of Muhammad ibn al-Hasan, based on the reasoning that it is a gratuitous transfer of property that the dedicator has not removed from his own financial control, so it should not become binding merely by declaration, similar to a gift or a bequest.