فصلنامه وقف میراث جاویدان
پیاپی 105 (بهار 1398)

One of the most important issues in the field of endowment is the validity of the unauthorized endowment because for the creation of the endowment contract the benefactor must be the owner of the endowed property. Officious intermeddeler sometimes out of ignorance, imagines that the property is his own and dedicates it and sometimes he knows that the property is non-property, but nevertheless dedicates it. There are three views among the religious jurists on the above issues: some of them believe that the unauthorized endowment is correct with the permission of the owner, some others believe that the unauthorized endowment is not correct However, the owner will allow and be satisfied with the endowment of meddler and some others, in detail about the accuracy of unauthorized endowment, between the endowment to the public and endowment to the private individuals believe that Endowment to the public is like One – sided dispositions and acceptance is not a condition in it because in One – sided dispositions there are not unauthorized actions but the endowment to the private individuals is one of the contracts so there are unauthorized actions in it. Thus it can be said that civil law, in accordance with the mostly view of the jurisprudents considers valid and correct the unauthorized endowment with the permission of the owner.

One of the most important issues in the field of endowments and pious foundation is its management. Therefore, trusteeship (custodianship or superintendence of the pious foundation) means management of the affairs of the endowed properties and is the most important executive pillar that the Holy legislator has appointed in the institution of endowment. On the one hand, in the system of sovereignty, in some cases, the ruler of the community needs to play a role, and sometimes this role is merely in the position of sovereignty although the endowment has a trustee and sometimes the ruler of the community is replaced trustee who has many instances. On the other hand, the ruler or the Religious guardian jurisprudent cannot directly play both the role of sovereignty or the custodianship of the pious foundation, as a result, in the administrative system of society, this task is specifically given to the organization of endowments and charities affairs and in the cases where the endowed property is devoid of trustees, this organization plays the role of trustee at the representation of the governor  (Religious guardian jurisprudent) and in cases where the endowment has the trustee, the role of the organization is the supervisory and sovereignty role over endowments and the organization only supervise on the actions of the trustee without interfering in the management of the endowment. Of course, the organization will intervene whenever the interest of the endowment or beneficiaries of an endowment is required.

One of the issues in the field of endowment and its management is the subject of administrator of an endowed property and studying his duties. The administrator or trustee refers to a person who is designated for managing of endowment affairs based on the contents of deed of endowment and by recognizing the branches of inquiry or court judgment. Therefore it can be said that the trustee and his manner of function in managing of endowment affairs are according to will of settler of an endowment. Accordingly, administrators of an endowed property should possession to endowment affairs according to the opinion and wish of benefactor. If the benefactor determines the manner of managing of endowment affairs, the administrator should act according to what the benefactor has specified but if he does not determine the method of administrator's possession, he should act according to common and with observance of endowment advisability. In this way, the trustee must try for Maintenance and repair of endowed property and also to lease it as well as earning income and dividing endowment interests among beneficiary of an endowment.

One of the important issues in the field of endowment is the status of the endowed property in case of failure and abandonment and how the endowment status of endowed agricultural land after waste and to fall into desuetude is one of its issues. Answering this question requires investigating the condition of abandonment and demolition of endowed agricultural land in both temporary and non-temporary ways. If the breakdown is temporary it seems the endowment to be wait, but in the case of prolonged devastation of endowed agricultural lands and its conversion to waste lands, there are three assumptions : assuming that there is no information about the endowment or beneficiary of an endowment have disappeared and only one name remains the endowed property land will be removed from the endowment and will be included in the public wealth, However, the idea of  conservation of endowment and spending its benefits on the good way is preferable. But in the assumption that we know the endowment is on the direction but we are unaware of endowment direction, revival and possession of the land should be with the permission of beneficiary of an endowment and trustee or religious judge and his representative. Also, in the assumption that endowment is to the private individuals and its consumption is known, but beneficiary of an endowment are not clear; this land does not go out of endowment but if the beneficiary of an endowment are known, the revival and possession of that land will be the permission of trustee or beneficiary of an endowment.

One of the disputes between the endowed property tenants and Organization of Endowments and Charities affairs is in creating a Key money right of that endowed property to such tenants on the one hand and demonstration of business and trade right On the other hand. Resolving this dispute requires examining the meaning of Key money and its rulings and types in comparison to the concept of business and trade right. Key money at first meant the money that the tenant paid to the lessor at the beginning of the lease, but after the introduction of the concept of business and trade right from the foreign rights it was also used for the concept of late. But the legislator, with the approval of the tenant and lessor relations Act of 1376, explained the Key money in its first concept. Studying of Jurisprudential and legal texts also indicates that Key money has many types such as Key money creatable, transferable and waiver. In a Key money can be created, payment of Key money right by the tenant creates a Key money right for the tenant and that right is transferable to other people as well. In a transferable Key money the tenant has an ownership right on the interests and if he has not been deprived of his right to transfer, he may transfer that right to another person for a sum of money. But in a waiver Key money the tenant with the waiving of his tenancy rights receives a sum as Key money.

The desire for eternity is one of the innate desires of human beings and humans in all ages have followed it with every ritual and belief. One way of achieving to this purpose is dedicating a portion of the property which the divine prophets have also used. With the revelation of the Torah and the officialization of the Judaism by the Prophet Moses (PBUH), the "Endowment" institution, which in Hebrew is referred to as "sacred to God," was emphasized. The Jews believe that by dedicating his property to God, human converts his material and mortal property into permanent and spiritual property. Consequently, this eternal and spiritual capital can be a spiritual support for human in the hereafter and exalt the benefactor to God and deliver from the torment of Hell. Therefore, the endowment in the Mosaic Law (as) as with all heavenly religious laws is certain and final which also say different parts of the Torah and the Jewish scholars have specified to it and also the pious foundation of Jewish benefactors in all around the world confirms it. Accordingly, it can be said that the dedication to the endowed property is the order of all divine religions, including the Judaism and is not one of the specific teachings of the Islamic Sharia and most of its rulings are fully conforming to the rulings of endowment in the religion of Islam.