استبدال الوقف الذي لم تتعطل منافعه بوقف خير منه في الفقه الإسلامي و نظام المرافعات السعودي مع بيان ما جرى عليه العمل في محاكم مكة المكرمة

الملخص EN

This research is looking at the case of substitution of endowment that is no longer feasible with a more appropriate endowment ensuring that the benefit is to the good of the endowment and its beneficiaries in the process of substitution, according to the Islamic jurists, and The Law Of Procedure Before Saudi Courts, issued by the Royal Decree No.21 and dated 20.05.1421h [19 August 2000] and its implementation regulations, and which is being followed by The Holy City of Makkah courts.

Statements of jurists in this issue along with related evidence were verified and their arguments were examined.

Then, the statement "substitution of existing endowments that are no longer feasible with an appropriate endowment plan if the benefit is to the good of the endowment and its beneficiaries.” was removed for further examination.

This is because this statement is very close to intention of the legislator and the purpose of the endowments, which is to benefit beneficiaries.

The Law Of Procedure before Saudi Courts, Articles (32, 250) and its implementation regulations, Articles (32 / 5, 250 / 3) have endorsed the selling of and transferring of endowments that are no longer feasible according to four conditions, which are : 1- Approval is needed from the official judge, where the endowment is available for sale.

2- Occurrence of benefit for the endowment and its beneficiaries, as determined by experts.

3- Immediately transfers its price to a similar property.

4- The high court approves.

The case law of The Holy City of Makkah courts in the period between 17.09.1371h and 26.04.1383h, found that if the intended transfer balances the price of the endowment after being announced three times, and the owner of the substitution has been ratified, then the transaction commences.