توثيق الأعيان الوقفية في الفقه الإسلامي والقانون الجزائري

Abstract

The documentation of Waqf real-estate, or Waqf properties is among the most important means of protecting it from loss, pushing away the mugging hands, and recovering it even after a certain time; it is also a way to continue enjoying the use of the Waqf according to the will of the Waqf original owner and his conditions. The present study is an attempt to uncover the ways of documenting the Waqf properties, by using different jurisdictional, legal, administrative and organizational means. In fact, the written document which ensures the act founding the Waqf is considered as the most important means of documenting the Waqf real-estate. After research and analysis we have come to discern six (06) kinds of documents which certify the Waqf property. These are: 1) the Testimony, 2) the Customary Contract, 3) the Notary Contract, 4) the Administrative Contract, 5) The jurisdictional Contract, 6) the Legal Contract. However, the common denominator which the Algerian jurisdiction demands so as the Waqf will be officially exhaustive is the Real-estate Advertisement (Ish’har), and as long as this procedure in not done it will not be  possible to argue by it with a counterpart, but we need to make up for it. The present study has managed to simplify and analyze the topic from different aspects, by displaying the legislative gaps and bridging the gap between the Islamic Jurisdiction (Fiqh) and The Algerian Law, the administrative systems being applied, and also, the ways of recovering the nationalized and the stolen, (or illegally occupied) Waqf properties, which makes this academic study an added positive stone  to bridge this gap and to reactivate anew this civilization sector. The aim of this study has been to raise awareness among the persons, institutions and law men who supervise or are responsible of these Waqfs so as to facilitate their mission, and also to push the donors to found new Waqfs on solid and clear legal grounds, which contribute in assuring their conservation, their stability, and their continuity.