If a waqf suffers an injury necessitating monetary compensation, and the injury voids the property's monetary value, is the compensation still obligatory?
General Chapter
Al-Mughni
Book of Endowments (Awqaf) and Donations
Primary text
The compensation remains obligatory because the monetary value of the waqf has not been nullified. If the monetary value were nullified, the compensation for the injury would not be voided, just as compensation is due for an injury to a free person. If the injury results in the killing of the endowed entity, its value becomes due, and the beneficiary does not have the right to pardon the perpetrator because the right does not belong exclusively to them. The compensation received must be used to purchase a replacement for the damaged entity to be held as waqf.
Supporting text
Some Shafi'i scholars contend that the beneficiary has an exclusive right to the compensation if we rule that the waqf entity possesses ownership, as the compensation is a substitute for their property. However, the correct view is that since the waqf is not exclusively theirs, its substitute is also not exclusively theirs, analogous to jointly owned or mortgaged property. This is because the rights of the subsequent beneficiaries attach to it, and its invalidation is thus precluded. Since the precise extent of the beneficiary's right is unknown, pardoning any part of it is invalid, similar to when an item under mortgage is damaged; its value is taken and used to purchase a replacement mortgage, and neither party can validly pardon it.