Chapter 36: Property Rights
Pre-emption (shuf'a), gifts, sadaqa, hubus, pledges, the 'ariyya, deposits, lost items, and misappropriation
This chapter deals with nine topics.
36.1 Pre-emption in property (shuf'a)
36.1a. The right of pre-emption
Pre-emption is allowed in something which is jointly owned.
[ Shuf'a is derived from shaf' (even), the opposite of odd, because the pre-emptor (shafî') adds the share which he takes to his share and so his share becomes two shares. Ibn al-Hajib defined it as the partner taking his share from his partner by an enforced purchase.
Then he moves to the relationship of the neighbour. Our position that is he has no pre-emption. What is taken by force can be a voluntary sale. It is an allowance which is allowed to avert harm to the partner. Jabir said, "The Messenger of Allah, may Allah bless him and grant him peace, judged that there was pre-emption in all undemarcated property. When there were clear boundaries and roads were clear, then there was no pre-emption." (al-Bukhari & others) There are two rulings based on this hadith: the obligation of pre-emption is for the partner rather than the neighbour because the ruling in the hadith is that there is no pre-emption after demarcation, and so a neighbour cannot pre-empt his neighbour. The second is that the obligation concerns real estate rather than goods.
He indicates by mentioning joint ownership. He means that the right concerns land and buildings and trees attached to it. Al-Fakhani said that the wisdom in affirmation of pre-emption is the removal of harm to the partner and it is particular to real estate because harm occurs most frequently in it. They agree that there is no pre-emption in animals, clothes, utensils and all moveables. A precondition for pre-emption is that it is something in which division is feasible, thus excluding things which do not accept it without being rendered unsound, like a bath-house.]
36.1b When there is no right to pre-emption
There is no pre-emption in what has been divided, nor is there pre-emption in respect of a neighbour, a road, the courtyard of a house whose rooms have been divided, a male palm tree or a well when the palm trees or the land has been divided. There is only pre-emption in land and the buildings and trees on it.
[Pre-emption was prescribed either to avoid harm in the division or harm to a partner. That does not exist in demarcated property which is why there is no pre-emption in it. Three of the Imams agree that the neighbour has no pre-emption while Abu Hanifa disagrees and affirms pre-emption for the neighbour, but in his view the partner takes precedence over the neighbour. There is no pre-emption in a private road shared between partners in a house or a garden. As for public roads, it is not permitted to sell them. As for a yard when the house is divided, there is no pre-emption, but if the estate is not divided and then is sold and one of the partners has his share of the estate and the road, then there is agreement that there is pre-emption in both the estate and the road.
There is no pre-emption in a male palm or a well. If pre-emption had been permitted in that, the partner would take all the male palm trees and the buyer would have none because pre-emption in that in which the partners share is only the male palm. If land is divided and the well remains, there is no pre-emption.
To sum up, pre-emption applies to jointed owned property and the right is cancelled in three ways.
One is when it is abandoned by explicit words, as 'I give up my pre-emption."
The second is what indicates that it is abandoned like seeing the buyer building and planting and still remaining silent. The third is indicated next.]
36.1c. When pre-emption lapses
There is no pre-emption for someone present after a year has passed. If he was absent he still has his right, even if it has been a long time.
[ i.e present in the land where the sale occurs. If he is present for a year and is silent about seeking pre-emption for two months, that cancels his right. The one who was absent and far away still has the right since he was absent before the possibility of pre-emption arose, whether or not he knew about the sale. There is no definition of near or far (because circumstances vary).]
36.1d. Forcing a decision
A buyer must guarantee the one with the right of pre-emption. A possible pre-emptor may be forced to exercise his right or forgo it.
[[The buyer is responsible for any damage to the property.] Al-Fahkani said that if someone is entitled to take it from the pre-emptor, he takes it without giving him anything and the pre-emptor must reimburse the buyer what he paid and the buyer returns the price to the seller. [This is when there has been more than one transaction.]
The buyer can summon the pre-emptor and demand that he abandon his right or pay the price for which he bought it if it has a like or its equivalent if it was something with value [i.e. if was paid for in livestock or goods, for instance]. If he does one of the two, there is no discussion. Otherwise the case is presented to the judge. If he asks for delay so that he can choose or bring the price, he is given a delay of three days.]
36.1e. Pre-emption cannot be transferred
Pre-emption may not be given away or sold. The right is divided between partners according to their shares.
[ It is not permitted for the pre-emptor to give or sell his right of pre-emption. That form of that would be that Zayd who can pre-empt says to 'Amr, who has no right, "I have given you my right to pre-empt with Khalid," or "Buy it from me for such-and-such." Pre-emption is a right granted to a partner for the sake of removing harm from him by entering into a partnership with someone he does not know.
36.2. Gifts (hiba), sadaqa, and hubus (waqf)
36.2a. Gifts and sadaqa
[Gifts and sadaqa only differ in two things. One is that gifts can be taken back while sadaqa is not taken back. When a father gives his son something, he can take it back from him, but that is not the case if he gives him sadaqa.
The second difference is that it is permitted for a gift can revert to the ownership of the giver by a sale, gift, sadaqa or some other method. That is not the case with sadaqa. It is disliked for it to revert to the ownership of the giver by the means we mentioned about the gift.
Its status is that it is recommended as indicated by the Book, Sunna and consensus. In the Book, Allah says, "Allah commands to justice and doing good," (16:90) and "Who, despite their love for it, give away their wealth." (2:176) In the hadith, "If anyone gives in sadaqa as much as a date from honest earnings - and Allah only accepts what is good - Allah will accept it in His right hand and will then increase it in size for the giver, just like one of you might rear a foal, until it is the size of a mountain." Ibn Rushd and others related that consensus on it.]
[Hashiyat al-'Adawi: There are four essential elements (arkân) in gifts. 1. The giver, who must not be someone legally debarred from dealing with financial matters. A gift given by such a person is not valid 2. The recipient, who must be someone who can own something. 3. The gift, which must be something whose ownership can be transferred. 4. The form of the giving.]
36.2b. It is dependent on possession
A gift, sadaqa or hubus is only complete by actual possession of it. If the giver dies before it is collected, then it becomes part of inheritance, unless that gift was made during his final illness. Then it is paid out of the disposable third as long as it is for other than an heir.
[ If the giver dies before the gift is taken, it reverts to the estate and is inherited and the gift is void. If he makes the gift in his final illness, however, it is paid out as a bequest unless it is for a heir because it is not lawful to make a bequest to an heir and so it is void. But if the other heirs allow it, it is carried out.]
36.3 Gifts and sadaqa
36.3a. Gifts to close relatives
A gift to a close relative or poor person is like sadaqa and cannot be taken back.
[ A close relative is one with whom marriage is not permitted and such a gift is for the purposes of maintaining ties of kinship. The prohibition against taking back gifts or sadaqa to a poor person is because they were given away for the reward and seeking the face of Allah.]
36.3b. Gifts to one's son
When someone gives sadaqa to his son, he cannot take it back. He may, however, take back something he gave to a minor child or adult as long as he has not used it to get married or given it as a loan and nothing has happened to the gift.
[ If the gift was not for the sake of ties of kinship or his poverty or out of the desire for the reward of the Next World, but was for himself. There is no difference between a male or female child, rich or poor. Something happening to a gift would be like if he was given iron and has made it made into a tool.]
36.3c. A mother's gifts
A mother may take back a gift as long as the father is alive. When the father is dead, she cannot take it back.
[ Whether the child is a minor or adult as long as the father is alive, even if he was mad at the time of the gift, unless, by the gift, she intended to maintain ties of kinship, or the reward of the Next World or because of his poverty. Then she cannot take it back.]
36d. Gifts to orphans
One may not take back a gift to an orphan. An orphan is someone who has lost his father.
[ If he has no father at the time of the gift, she cannot take it back because he is an orphan and thus it becomes like sadaqa. No matter what the age a person is, if his father is dead, he is called an orphan in the case of humans. In the case of animals, lack of mother makes an orphan, and in the case of birds, both parents.]
36.3e. Retaining possession of the gift
A father is permitted to retain possession what he gives to his minor son when he does not live in that (if it is a house) or wear it if it is garment. He can only do that if the gift is a specific article. He cannot do that if the son is an adult.
[ This is permitted even until he is bankrupt or dies. If the gift is a house and he continues to live in it or most of it or to wear a garment he gave him until there is an impediment, the gift is nullified. If he lives in a small part and rents most of it out, it is not nullified. This is when the gift is described and specified, like a particular house. He cannot say, "I have given you one of the houses." The father cannot keep that gift if the child is adult and sensible. If the son is a fool, he can keep possession of it.]
36.3f. Not taking back sadaqa
A man should not take back his sadaqa or nor can he recover it except by inheritance. There is no harm in drinking the milk of an animal he gave as sadaqa. He does not buy back anything he gave away as sadaqa.
[ He does not take back sadaqa at all once it is received, either by buying it or any other method, and here is no exception to that except by inheritance, and then he owns it because he had no part in returning it and is not suspect. He can drink the milk of something like a cow or goat and there is nothing wrong in that because he has not altered the value of he gift. He does not buy back his sadaqa from the person he gave it to nor from anyone else. This prohibition is one of dislike, which is the School.
36.3g. Gifts with expectation of a recompense
If someone is given a gift for which the giver expects recompense, he should either repay it with something of equal value or return the gift. If he no longer has it, then he must give back its value when he sees that the giver wanted recompense for what he gave him.
[ This is when the man gives something of his property to another so that he will reward him for it. It is a contract of recompense for unknown goods. It is permitted. Al-Baji said, "The gift for a recompense is not an act of nearness, but it is a sort of mutual recompense. The one given either recompenses the value of the gift or returns it if the gift is still available. If it is no longer with him, he repays the price or the gift if he thinks that the giver wanted that according to the circumstances.]
36.3h. Not giving all one's property to one child
It is disliked for someone to give all his property to one of his children. Giving part of his property is allowed. There is nothing wrong in giving all his property to the poor for Allah.
[ This is a dislike of one of avoidance in the well-known position. He should not give most of it to one of them either, but what he does is carried out unless his other children rise and forbid him to do that. They can force its return (when they fear that they will have to support him). The basis is the hadith of the Prophet, may Allah bless him and grant him peace, "Fear Allah and be equitable to your children." A small amount is permitted.
He can give all his property to the poor as long as his children do not forbid it. That is limited to when he is not ill. If he is ill, he can only dispose of a third.]
36.3i. If the gift has not been collected
If someone who is given something does not take possession of it until the donor is ill or bankrupt, he cannot then take it. If the recipient dies, his heirs can take it if the giver is still in good health.
[ An illness here is one in which it is feared that he may die. As well as applying to gifts, this principle also applies to sadaqa and hubus.]
36.4. Hubus (waqf)
[A hubus is granting the usufruct of something, either in perpetuity or for a specific period after which it then reverts to private property.
[The Four imams allow it but disagree about whether it requires the ruling of a judge or is carried out in the same manner as bequests. Malik, ash-Shafi'i and Ahmad say that it is sound without these two methods and is binding, Abu Hanifa says that it requires one of these two.]
It is recommended because it is one of the best things which one can use to draw near to Allah. The basis for its permissibility is that the Messenger of Allah, may Allah bless him and grant him peace, created a hubus as did 'Umar ibn al-Khattab, 'Uthman, 'Ali, Talha and az-Zubayr, may Allah be pleased with them, and other Companions for houses and gardens.
[There are four basic elements (arkân) in the hubus. 1. The founder and his suitability for establish a waqf. 2. The verbal form of founding the waqf, or whatever the custom for that is. 3. The object or place which comprises the waqf. 4. The purpose or beneficiaries of the waqf.]
36.4a. A house in hubus
When someone makes a house a hubus, it is used for the purpose to which he put it if it taken before he dies.
[The precondition is that the endower is entitled to dispose of his property of disposable by being one of the people who can dispose of his property and make gifts. He can make a waqf of a house, an animal and goods. [In the case of food, it has to be something which lasts for a long time, like wheat.] The precondition is that it is owned by the person who endows it, in itself or its use, and no one has a claim connected to it, and it is not something which it is not permitted to sell, like the skin of sacrifices and hunting dogs. It is used for the specific purpose for which it was endowed.
[Hashiyya: A waqf in money is questionable. There is a position that it is permitted because it lasts and can be replaced. The other position is that it is not permitted because its use lies in its consumption and a waqf must consist of something which will continue to exist. Lack of permission here can mean dislike or prohibition.]
If he designates a house as a waqf but does not specify the reason, it is used according to the common usages of the people of that land.
If its use is specified and taken, it is put to that use. If it is not taken before he dies or becomes bankrupt, the waqf is nullified. If it is not specific, like a mosque, it does not require a specific taking possession. When people are allowed to do the prayer, then waqf is valid.]
36.4b. Waqf for a minor son
If it is a hubus in favour of his minor son, he may hold it for him until he comes of age. He should rent it out for him and not live it in himself. If he continues to live in it until he dies, then the hubus is nullified.
[ The end of possession is when the child comes of age provided that he knows that he is sensible. If the father continues to live in it until he dies or becomes bankrupt, then the waqf is nullified. This is when the son is free, not a slave.]
36.4c. When the original beneficiaries die out
If the beneficiaries of the hubus come to an end, the nearest of people to the founder on the day it reverts becomes the beneficiary.
[ This is whether the founder is dead or alive. This is like when the founder has a full brother and a half brother by the father. The full brother dies, leaving a son and then the beneficiaries of the waqf come to an end. It reverts to the half brother rather than the son of the full brother. One considers who is the closest on the day it reverts, not he day it was founded because it may be that the relative who was distant on the day it was endowed will become near when the waqf reverts.]
36.5 Life Grants ('umrâ)
36.5a. Granting use for a person's lifetime
If someone gives a man the use of a house for his lifetime, it reverts to the owner when the person dies. It is the same if he gave the use to the children of the person and they die out. This is not the case with the hubus.
[ If the owner has died, it reverts to his heirs. The reality of 'umra in custom is that people of ShariÔa define it as the gift of the usufruct of a certain property for the lifetime of the donee or for his lifetime and that of his descendants, not the gift of a ruqba (which is the property for his lifetime). It does not have to be specific for the life of the donee. If it is limited to the life of the donee, it is also called 'umra. This differs from the hubus which does not revert to the ownership of the owner when the beneficiaries die. A hubus remains a waqf for the closest relative of the beneficiaries. There is a difference because the waqf is ownership of the property and the 'umra is ownership of the use.
36.5b. Death of donee and granter at the same time
If the one who granted the use dies on the same day, the property goes to his heirs on the day he dies.
[ Ibn 'Umar said that it is possible that it means the day of making the 'umra, and then it is the ownership of the property rather than the usufruct. It can refer to the death of the giver and then it is ownership of property and usufruct.]
36.6 More on hubus
36.6a. Death of a beneficiary
If one of the people of the hubus dies, his share goes to the rest.
[ Male or female or equal in this.]
36.6b. Those in need are preferred
People in need of lodging and revenue are preferred for the hubus.
[ This is when the beneficiary is not specified, like saying that it is for the poor. Then the people of need and dependants are preferred to others for lodging and revenue according to ijtihad because that is the aim of the waqfs. If the beneficiaries are specified, then they are all equal, and the poor is not preferred to the wealthy.
[There is some disagreement in the School about whether the poor are preferred or not.]
If someone is resident, he should not be evicted for someone else unless that is a precondition in the hubus which is carried out.
[ Even if the new person does not have a dwelling nor revenue, and even if the current tenant has become rich after he started to live there because the important thing is the need at the beginning, not one that is constant. There is no security that it will not come back. If other than the most needy came first and lived there and then he is evicted, then they will then be of equal need. So whoever lived there first is more entitled to stay. If, however, it is a term stipulated in the waqf, it is carried out.]
36.6d. A waqf is not sold
The hubus is never sold, even if it falls into ruins. If a horse which is a hubus becomes rabid, it is sold and the price used for another one like it or to help in paying for one. There is disagreement about replacing a ruined building with a building not ruined.
[ When it becomes unusable, even if is not hoped to restore it. It is not permitted to sell its rubble. This is restricted to when the founder has not put a stipulation that it be sold. If he did so, than his stipulations are followed.
[There is a counter position which states that if leaving it will result in harm and there is no hope of restoring it, then it can be sold.]
There is an exception mentioned in the Mukhtasar about the amount which is needed to expand the mosque, i.e. the Jumu'a mosque, not any other mosque. Similar to the Jumu'a mosque are Muslim graveyards and roads because the use of the mosque, road and graveyard is greater than the use of the waqf. It is close to the aim of the founder. There is disagreement about exchanging for a price.
In the case of a horse, rabies is a form of madness which can infect a horse. If it is sold, then the price is used to buy another horse or given as sadaqa for jihad.
There is disagreement replacing a ruined building. Some of them take this literally as exchanging ruined property for unruined and giving it for the unruined. Others say that the ruined property is sold and the price used to purchase what is sound and so what was waqf ceases to be waqf and what was not waqf becomes waqf. ]
36.7 Pledges (rahn)
36.7a. Legal status of pledges
The use of a pledge is permitted and it is only accomplished by possession of the article pledged.
[ Pledges are permitted at home or on a journey. The journey is specified in the words of Allah, "If you are on a journey and cannot find a writer, something can be left as a security" (2:282) since that is when it is more common one cannot find a scribe to provide evidence. The Prophet, may Allah bless him and grant him peace,pledged his armour when he was in Madina. That indicates its permissibility while one is resident.
It would appear from what he says is that a pledge is valid before it is actually taken, and that is true, but it is only by actual possession that the pledgee has a special right to it rather than other creditors. Ibn al-Hajib said that if that is delayed until the bankruptcy or death of the pledger, it is agreed to be nullified.]
36.7b. Witnessing pledges
Testimony about possession is only useful if the witness actually saw possession take place.
[ Ibn 'Umar said that this is when it is a distinct item and is handed over so that there is a transfer. When the pledge is not a distinct item and is not handed over, testimony is useful is they both confirm it (e.g. it might consist of certain palm trees).]
36.7c. Responsibility for the pledge
Responsibility for the pledge is that of the one who takes it if it is something which can be hidden. If it is something which cannot be hidden, he is not liable. The responsiblity for the fruit of palm trees in pledge is that of the pledger. The same is true for the revenue of houses.
[This is when he takes the pledge if it is not lodged with a trustee who takes it from the pledger. He is responsible for something which can be hidden, like jewellery, unless there is evidence that it has been destroyed, Then he is not liable. He is not liable for things like houses and gardens according to the well-known position. This is the case even if the pledgee were to stipulate that he is not liable for what can be concealed or the pledger were to stipulate that the pledgee is responsible for what is not hidden.
[Ibn al-Qasim says that the precondition is void because it is contrary to what is entrailed by the contract. Ashhab says that the precondition is binding.]
Someone who is suspect swears, "It is lost and I was not negligent nor destroy it. I did not misuse and I do not know where it is." The one who is not suspected only swears to lack of neglect in particular because it is not suspected that he has concealed it.
Responsibility for fruits is that of the pledger, whether the fruits exist or not at the time of the pledge and whether they are pollinated or not, unless the pledgee stipulates that it included. The same applies to revenue of houses. That is the responsibility of the pledger in the well-known position unless the pledgee stipulates that he has that.]
36.7d. Children of a slavegirl in pledge
If a slavegirl bears a child while she is acting as a pledge, her child is also a pledge. The possessions of a slave do not go into pledge with him unless that is stipulated.
[ If he stipulates that the child is not part of the pledge, that is not permitted and the pledge is invalid.
In the case of the possessions of a slave, whether they are known or unknown.]
36.7e. Responsibility for the pledge if destroyed
If the pledge is destroyed in the possession of a trustee, it is the responsibility of the pledger.
[ If it can be hidden. It is not the liability of the trustee because there is no liability for the trustee.]
36.8. The 'Ariyya (Loan for temporary use)
The 'ariyya is assigned for a time. The borrower is responsible for what is can be hidden, but not for what cannot be hidden, like a slave or a riding animal, unless he misuses it.
[ Ibn al-Hajib defines it as transfer of ownership of the usufruct of a specific thing without compensation. It is recommended, and even more so in the case of relatives, neighbours and friends. Its basis in the Book is the words of Allah Almighty, "Do good, so that perhaps you may be successful" (22:75) and in hadith, the Prophet, may Allah bless him and grant him peace, borrowed some armour from Safwan* and he asked, "Is it misappropriation, Muhammad?" He said, "Rather it is a guaranteed 'ariyya."
He explains the question of liability in the 'ariyya. The borrower is liable for something which can be hidden unless there is evidence of its destruction. Then, in the well-known position, he is not liable because liability is based on suspicion which is removed by evidence. In the case of things which cannot be hidden, Ibn 'Umar says that he must take an oath, whether he is suspect or not. If the lender stipulates the borrower's liability, that is of no use. It is the same if the borrower stipulates to the lender lack of liability in that for which there is liability. That is of no use and he is liable according to one of the positions of Ibn al-Qasim and Ashhab. They also say that it is effective and one acts by the preconditions because the 'ariyya is a known topic, i.e. there is no liability in the known.
The exception to lack of liability is when the borrower abuses it and then he is liable. There are many types of abuse, including increasing the load and increasing the distance. He is also liable in another case, which is when it is clear that he is lies as when he says that it was destroyed in a certain place and none of his companions heard that it was destroyed.]
[*Safwan ibn Umayya who was still an unbeliever at that time.]
36.9 Deposits (wadî'a)
[Deposit (wadî'a) comes from wada'a, which is "to leave". The Almighty says, "Your Lord has not abandoned you nor does He hate you." (93:3) i.e. not abandoned His custom of being good in revelation to you. In technical usage it is property which is entrusted to someone's keeping and which must be returned whenever the owner asks for it without excuse. He is believed about returning it to the depositor unless there was evidence in that and then he is only free by clear proof of that.]
36.9a. Statements about the deposit
If someone given a deposit says, "I have returned the deposit to you," he is believed unless he received it in the presence of witnesses. If he says, "It has disappeared," he is believed in any case. In the case of an 'ariyya, however, he is not believed about its destruction if it is something which can be concealed.
[ If there were witnesses to his taking it, he is only believed when there are witnesses to its collection as his trust was not enough. Evidence must be intended for ensuring security. Witnessing is only considered when he says someone along the lines of "Bear witness that I have deposited such-and-such with him." It appears from his words, "He is believed" that he does not have to take an oath. They derive from the Mudawwana that he must take an oath.
When he says that the item is destroyed, he is believed whether there was testimony or not. The one under suspicion rather than others swears an oath in the well-known position. It is said that both the one who is suspect and others swear. Ibn 'Umar stated that and at-Tata'i said it. He repeats the point about the 'ariyya to differentiate it from the deposit.]
36.9b. Abuse of a deposit
If someone abuses a deposit, he is liable for it. If it was dinars, which he returns to their original bag and then they are lost, there is disagreement about whether he is liable for them.
[ There are many things that comprise abuse, including putting it with someone else without an excuse, while on a journey or resident. Another is travelling with it without excuse and using it so that it is destroyed. He indicates this here.
If it is dinars or dirhams which were tied or sealed and he lends them or part of them and then returns the same amount to the bag and then they are destroyed, it is said that he is liable because he misused by opening them. It is said that he is not liable. That is the position of Ibn a-Qasim and others. It is well known. It states in at-Tawdih, "He owes it and it only believed with an oath."]
36.9c. Trading with a deposit
It is disliked for someone to trade with something deposited with him. If he does so with money, the profit is his. If the deposit was goods and he sells them, the owner can choose between taking the price or the value on the day he infringed.
[ He has any profit or any loss because he is responsible. It is disliked to do so, even if it is the deposit is money. Al-Aqfashi said that. If the goods no longer exist, the owner has a choice between taking the price for which they were sold or their value on the day he sold them. If they are still present, he can choose between cancelling the sale and taking back his goods, or taking the price for which they were sold.]
36.10. Found property
36.10a. Announcing the article which has been found
If someone finds something, he must announce it for a year in a place where it is hoped that it will be recognised. If, after a year, no one comes forward, he can make it a hubus or give it away as sadaqa. If he does that, he is responsible for it if its owner should then come forward.
[ It is mandatory to announce it immediately. If he delays until it is lost and then its master comes, he is liable for it. At-Tata'i said that. It is mandatory to describe it since the Prophet, may Allah bless him and grant him peace, commanded that. In the Muwatta' it states that a man came to the Messenger of Allah, may Allah bless him and grant him peace, and asked him about an item which is found. He said, "Publicise its purse and its strap. Then publicise it for a a year." Publicising it for a year is applies if the item is large. As for something insignificant to which one pays no attention, which is less than the legal dirham, as Abu'l-Hasan, the commentator of the Mudawwana, said, it is not publicised. What is more insignificant and less than a lot is publicised for some days if someone might look for it. As for what will go bad by delay, like fruit, it is for the finder and he does not announce it.
The announcement is made in a place where that will achieve a result, and it is in the place in which he found it. When he announces it, he does not mention its category, but mentions it in a general manner, saying, "Who has lost something?"
If he then gives it away as sadaqa, it is on his behalf or on behalf of its owner.]
36.10b. Using the article
If the finder makes use of it, he is responsible for it. If it is destroyed before or after the year is up without action on his part, he is not responsible.
[ He is responsible if it is destroyed. If he does not destroy it, he must pay its rent to its owner if it is like something which is rented, like animals. If he did not do anything to abuse it, even permitted action, as when it is fodder, he is not liable because it is a trust with him.]
36.10c. Claiming the article
If the claimant recognises the purse and the strap, he may take it.
[ It would appear that both matters must exist. That is not the case, because one of them is enough because he may have forgotten the other. It also appears that knowing the number of dinars and dirhams is not a precondition, and that is true according to Asbagh. Ibn al-Qasim and Ashhab consider that. Revenue from the item during the period of publicising it belongs to the finder. [Revenue can be milk, butter, cheese and the like.]]
36.10d. Lost animals
A man may not claim a stray camel in the desert, but he can take a sheep and eat it if it is found in uninhabited wasteland.
[Hashiyyat: This is when the camel is safe from wild animals and thieves. Then he can take, although it is also stated that he does not take it in any case.]
[Horses and donkeys are not the same category as lost camels: they are part of lost articles. If he finds them, he takes them. An uninhabited area is like a desert.
He is not liable or eating a sheep in the desert or uninhabited area, but if he brings to an inhabited area alive, he must announce it because then it becomes like a found article.]
36.11 Compensation for consumption of another's property
If someone consumes merchandise, then he owes their value. If the goods are weighed or measured, he owes the equivalent.
[ This is the well-known position. Opposite it is what al-Baji reported from Malik that he has a position which states that all damages are replaced with their equivalent, as is stated by Abu Hanifa and ash-Shafi'i. According to the well-known position, one considers the price and the place of the consumption, whether intentional or accidental. Intentional and accidental are the same in respect to people's property.
If it is weighed, measured or counted things which are not differentiated, like eggs, he owes the equivalent in the place where he consumed it.]
[If the amount is undetermined, he is liable for the value of a heap of it.]
36.12 Misappropriation (ghasb)
[This is the final topic of this chapter. Ghasb in technical terms is to take property by force by encroachment without banditry. Its is forbidden because of what has come about in the ayats of the Qur'an and the hadiths of the Prophet, may Allah bless him and grant him peace. Among the ayats is, "Allah does not love those who go beyond the limits." (2:190) There is the hadith in the two Sahih collections where the Prophet, may Allah bless him and grant him peace, said, "No one unjustly takes a piece of land measuring a hand's width but that Allah will encircle him down to seven earths on the Day of Rising."
One of its rulings is liability as he indicates here.]
36.12a A misappropriater is liable
A misappropriater is liable for what he misappropriated. If he returns it in its original state, he owes nothing. If it has changed while in his possession then the owner can choose between taking it with the defect or making him liable for its price.
[ Al-Qirafi said, "The term misappropriater applies to every human who is Muslim or a dhimmi since the Prophet, may Allah bless him and grant him peace, said 'The hand owes what takes until it returns it,' i.e. obliged to return it if it exists, or its price or equivalent if it is gone."
The well-known position is that liability takes note of the state of the misappropriation. If it is returned unchanged, he owes nothing. He is obliged discipline, repentance and asking forgiveness for the wrong action. If it is changed in a negative way by something divine, the owner can take it as it is with its defect without a fine or be paid the price on the day he took it.]
36.12b. When he has caused the damage
If the loss was due to his misuse, the owner has a choice between taking it and taking it with compensation for the damage. There is a difference of opinion about that.
[ Al-Fakhani said, "Or he is liable for the price on the day he misused it. It is reported from Ashhab and one position of Ibn al-Qasim that he can take the price or take it imperfect with nothing with it. This is the source of the disagreement.]
36.12c. Income from usurped property
The misappropriater has no right to the revenue and must return what he consumed of the revenue or pay for any use he had from what he took. If he has intercourse with a slavegirl he takes, then he is subject to the hadd-punishment and his child is a slave of her owner.
[ It is clear that it is mandatory to return the revenue absolutely, whether land, animals, slaves or other things, and that is the position of Ashhab and Ibn Ziyad from Malik. Al-Fakhani said that the literal text of the book specifies responsibility for the revenue of land rather than slaves and animals, and that is the position of Ibn al-Qasim in the Mudawwana.
If he has intercourse with a slavegirl he has wrongly taken, he is subject to the hadd if fornication is established by evidence or confession because it was unlawful intercourse with no quasi-legal justification. The child belongs to the owner because every child, from fornication or marriage, follows its mother in respect of ownership.]
36.12d. Past revenue
The usurper of property has no right to its profit up until the time he returns it to the owner. Some of the people of Malik prefer that he give it away as sadaqa. There is something about this in the chapter on judgements.
[Al-Fakhani said that when he misappropriates some money and trades with it and it increases in his possession and it is connected to his responsibility, the profit is his as the liability is his, but it is disliked since it comes from property to whose use the owner did not consent. When he returns the capital as it was and is allowed it by the owner, that is permitted for him when the owner is agreeable about it. Imam Ashhab recommended that he give it as sadaqa to expiate what he committed of the wrong action of misappropriation based on what the Prophet, may Allah bless him and grant him peace, said, "Sadaqa extinguishes errors as water extinguishes fire."
There is something about misappropriation in the next chapter on judgements.]
Return to Home Page
Return to Index