چکیده:
Except in some cases, impermissibility of changing the waqf is a matter of the jurisprudents` consensus. But concerning the reason of its impermissibility, there is no agreement between them. Some believe that its reason is religious ordinance which prohibited it. Some others say that the waqf`s nature is a form conflicting with any change, and all the narrations that imply prohibition, have aspect of approval, not legislation and establishment. The third group says that the cause of impermissibility of transferring the waqf is that after settler endowment, the subject of endowment is removed from its settler`s ownership and no longer, falls into the ownership of anyone and the property is removed from the ownership. Between the mentioned three theories, the second is acceptable and defensible due to which the endowment has no religious nature, and it is a human covenant, which it occurs and is current beyond religion and faith in all the periods and among all the nations of the universe. In addition, it has historical and narrative circumstances of evidence.
خلاصه ماشینی:
Some believe that the reason for its impermissibility is a Sharia ruling of prohibition; another group says that the nature of waqf is such that it is incompatible with any kind of change, and the narrations that indicate prohibition are all confirmatory in nature, not legislative or foundational; the third group believes that the reason for the permissibility of changing waqf is that after the waqf of the endower (waqif), the endowed property (mawquf) leaves his ownership and no longer remains in anyone's ownership and becomes ownerless (fakk al-milk).
This is while if the endowed object is to be subject to change, it must possess ownership so that the owner or someone authorized by him can effect change and transformation (for example, sale) upon it; otherwise, his disposal would be usurping.
According to his view, which states that the endowed object must possess ownership to be subject to buying and selling, how can the aforementioned cases be changed?
Based on the first basis (where the Sharia reason does not consider changing the endowment permissible), the main axis will be the Taklifi ruling: similar to the ruling of the prohibition of selling wine and pork, where the actor is financially liable for what he has taken and has also committed a forbidden act and a sin.
However, it has been said that endowment is absolutely fakk-e milk, and the reason for the impermissibility of its sale is that it is not property so as to be subject to buying and selling.
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