CONDITIONS OF ENDOWMENT FOUNDER IN ALI HAYDAR EFENDI

The subject of the foundations dealt with within the own systematic of classical fiqh books, has taken its place among some studies with the idea of making law based on domestic and Islamic law with the effect of the legalization approach towards the end of the 19th century. Inter alia, there were highly valuable studies which were studied in Ottoman Empire and Egypt. Especially “İthâfü’l-Ahlâf fi Ahkâmi’l-Evkâf” written by Ömer Hilmi and “Kânunu’l-Adl ve’l-İnsâf fi’l-Kazâi alâ Müşkilâti’l-Evkâf” written by Kadri Pasha in Egypt, which did not go into effect officially, were benefited in practice, jurisdiction and other areas. After that Ali Haydar Efendi who was one of the Mecelle’s commentator wrote “Tertîbü’s-Sunûf fi Ahkâmi’l-Vukûf” which is more comprehensive than others by especially emphasising Ömer Hilmi’s book in order to complete former book’s deficiency and cater for updating need. Conditions of the foundation were adressed in different places and were discussed in two separate part in this book. In this paper, with the help of law literature about conditions of the foundation, it was adressed two exceptional case on condition that conditions of the “waqf” founder have to conform to the sharia law by comparing with Tertîbü’s-Sunûf fi Ahkâmi’l-Vukûf, Kânunu’l-Adl ve’l-İnsâf fi’l-Kazâi alâ Müşkilâti’l-Evkâf and İthâfü’l-Ahlâf fi Ahkâmi’l-Evkâf. First of those is standing of foundation by quashing to conditions. Second one is circumstances that it is possible that conditions are not conformed in accordance with the affair of the foundation.