Compensation for bare rights and giving up posts for money

This question in Radd al-Muhtar is a practical one from Ibn Abidin's own time: may the holder of a waqf post, such as imam, preacher, muezzin, carpet-keeper or doorkeeper, give it up to another for money? ¹ He treats it under the side headings "no compensation for bare rights", "on compensation for posts and giving them up" and "on particular and general custom". ¹

He reports from al-Bada'i' that bare rights cannot be transferred as property and may not be settled for money, adding that they are not compensated if destroyed, and reports from al-Sarakhsi's commentary on al-Ziyadat that destroying a bare right brings no liability because compensation for it is void, unless it defeats a confirmed right. ¹ Among the examples in al-Ashbah: if the pre-emptor settles his right of pre-emption for money, the settlement is void; if a husband pays a wife who has been given the option so that she chooses him, it is void; if he pays one of his wives to give up her turn, it is not binding; and on this basis compensation for waqf posts is not permitted. ¹ Exceptions are the right of retaliation, the marriage bond and the right over a slave, for which compensation is allowed, as al-Zayla'i says. ¹

The school's doctrine does not recognise particular custom, but many gave fatwa recognising it, and on that basis fatwa is given that posts may be given up for money, as in al-Ashbah. ¹ He reports from al-Ayni's fatwas that giving up posts has nothing to rest on, but scholars and judges allowed it out of necessity and required the administrator's approval to avoid disputes. ¹ He reports from al-Hamawi that some compared giving up religious posts with a wife's giving her turn to a co-wife, both being mere releases. ¹

Ibn Abidin holds that the permission does not rest on recognising particular custom but on parallels within the school, and that the ban on compensation for a right is not absolute. ² He reports from al-Biri the reasoning that compensation may be taken by way of releasing the right, as with a legatee of a slave's service who settles it, or a settlement of a thousand for five hundred; and that the rights of pre-emption and of the wife's turn exist only to remove harm, so that once the holder accepts giving them up nothing remains to be compensated, unlike a right that belongs to its holder in its own right. ² He reports that some argued for permission from al-Hasan ibn Ali's giving up the caliphate to Mu'awiya for a return, and says this too is plain. ² He reports, from the handwriting of a scholar, that the mufti Abu al-Su'ud gave fatwa allowing compensation for the right of tenure and use and that it cannot be reclaimed. ² He concludes that the question is one of probable judgement, the parallels are alike and there is room for discussion, and that the better course is al-Nahr's: a general release should follow. ²

Ibn Abidin says the same holds for giving up the right of cultivation called mashadd al-maska and for a timar-holder giving up his timar; if the holder gives it up to another and the sultan does not grant it to the recipient but leaves it with the holder or gives it to a third person, the recipient should be able to reclaim the payment from the holder, since he paid only for the right to pass to him; so it was ruled in the Isma'iliyya and Hamidiyya fatwa collections, against those who ruled there is no reclaiming. ²

He reports from al-Ashbah that if particular custom is recognised, fatwa should be that the khulu of shops found in some markets of Cairo is binding. ² The subject has its own entry: khulu.

In the same passage he reports the fatwa of the author of al-Tanwir on selling a "jamakiyya", a man's stipend from the treasury which he needs as cash before it is paid and sells to another for less: it is not valid, being a sale of a debt to someone other than the debtor. ¹