Islamic Fiqh > Endowments (waqf) and property > Ghasb: usurpation > Second case: the usurped property left unused during the usurpation
Contents
Updated on 25 September 2026 at 6:57 PM
This part belongs to the full section: All sections of this part.
After the foundations of usurpation (ghasb), this section of the fiqh encyclopedia examines the particular cases: usurped property left unused during the usurpation, the hand that follows the usurper's hand (buyer, lessee, borrower, depositary, donee), liability for breaking a cross, recovering one's right by one's own hand, then the disputes between the usurper and the owner over the value, the loss and the return of the property. The positions of the four schools are reported with their classical references.
The second situation is that of one who usurps a house, a slave, a mount, a car, a garment or other property, deriving no benefit from it: neither dwelling, nor use, nor riding, nor wearing; he neither hired it out (ikara) nor diverted its revenues (ghall). The jurists ask: is the wage of the like (ujrat al-mithl) due from him for the entire period the property remained forcibly in his hands?
The Hanafis, the Malikis according to the prevalent opinion, and Ahmad in one narration, hold that nothing is due from him: he is not liable for the wage of the period during which the property remained usurped with him. These benefits are usufructs that were not extracted from the usurped property, so the usurper does not guarantee them. The root of the question is the benefit of consummation (bud'): one who confines a free woman who cannot marry and takes compensation for that for a period owes no dowry of a woman like her. Likewise, these are usufructs that perished in the usurper's hands without his profiting from them or taking compensation for them, so he does not guarantee them, like the bud' of the slave-girl ("al-Hidayah", 4/20; "Mukhtasar al-Waqayah", 2/142; "al-Inayah", 13/401, 403; "al-Jawhara al-Nayyira", 4/140; "al-Lubab", 1/640; "al-Maunah", 2/191, 192; "al-Taj wal-Iklil", 4/309, 310; "Sharh Mukhtasar Khalil", 6/137; "al-Sharh al-Kabir" with "Hashiyat al-Dasuqi", 5/168; "Tahbir al-Mukhtasar", 4/391; "al-Fawa'ih al-Dawani", 2/176; "al-Insaf", 6/21, 202).
The Shafi'is, the Hanbalis according to the madhhab, and some Malikis such as Mutarrif, Ibn al-Majishun, Ibn Abd al-Hakam, Asbagh and Ibn Habib, teach that the wage of the like is due for the entire period the object remained in his hands, whether he benefited from it or not, provided its hire would have been valid; for usufructs have a market value and become guaranteed by usurpation like the objects themselves.
Imam al-'Imrani (may Allah have mercy on him) explains: whoever usurps another's object, being among those who guarantee in its regard, owes, if a usufruct of such an object can be acquired by hire, such as the dwelling of a house, the cultivation of land or the service of a male or female slave, the corresponding wage for that period, whether he benefited from it or not. If the usufruct cannot be made lawful by hire, like the bud' of the slave-girl, he guarantees nothing of it; for usurpation does not prevent the owner from receiving compensation for her bud', which is the marriage contract, but it prevents him from hiring her out. Such is our school, and Ahmad said the same. As for Abu Hanifah, he said: no wage of usufruct is guaranteed from him in any case. Their proof: everything that can be acquired by a named sum in a valid contract, or by a like in an invalid contract, that is, what is obtained through the exchange contract (mughabana), becomes guaranteed by usurpation like the objects themselves. The phrase "what is obtained through the exchange contract" is a reservation excluding the benefit of pleasure (istimta'). Their detailed statement was reported in the previous first case.
It has also been said that the buyer recovers the price from the usurper, and this is according to the view that the contract is a sale: the sale is then validated without mutual taking of possession; according to the view that a sale requires the exchange of hands, the buyer has nothing to claim from him. The "Nawadir" transmit both views and weaken the second to the point of rejecting it; see the book of entitlement (istihqaq). Al-Lakhmi adds: if the buyer knows that his seller is a usurper and the purchaser wishes to rescind the sale before the return of the usurped property, he may not do so if the owner's absence is near; he may do so if the absence is far, because his waiting while under guarantee until the return would cause him harm. The sale is then like the sale of an unauthorized agent (fuduli) ("Mawahib al-Jalil", 7/264, 265).
There remains the question of the hand established after the usurper's hand: a man usurps property, then another usurps it from him, borrows it, receives it in deposit or rents it. Is the second man's hand like the first usurper's, that is, a hand of guarantee that leaves the owner free to claim from either of the two? Or is the first held liable, with recourse against the second, or the second alone? Several questions follow from this.
First question: the usurper of a usurper. The majority of jurists, Hanafis, Shafi'is and Hanbalis, state that if a man usurps property and then another usurps it from him and it perishes with the latter, the owner has the choice: he holds the first or the second liable. If he holds the first liable, the first has recourse against the second; if he holds the second liable, there is no recourse, for he is a usurper.
The Hanafis give the grounds: the first's liability rests on his act of usurpation, by which he deprived the owner of his hand over the property. The second's liability rests on the fact that he deprived the first usurper of his hand; and that hand is, in one respect, the owner's, since the first preserves the property and can return it to the owner, and the guarantee against both of them rests in his trust: the benefit of his hand therefore reverts to the owner, like the hand of a depositary. Since the cause of the guarantee exists in each of the two for a single claim, the owner is left free to designate the debtor. If he chooses the first, the second becomes liable by way of recourse, for he acquired ownership of the usurped property from the moment of the usurpation: it then appears that the second usurped his property. If he chooses the second, there is no recourse, for he guaranteed by his own act. The same applies if the second consumes the property.
Al-Kasani (may Allah have mercy on him) raises a question: when the owner chooses to hold one of the two liable, is the other discharged from the guarantee by that very choice? The "Jami" records that he is discharged, to the point that if he later wishes to hold him liable, he may not. Ibn Sama'ah (may Allah have mercy on him) reports in his "Nawadir", from Muhammad, that he is not discharged so long as the one designated does not consent or judgment is not passed against him. The import of the "Nawadir" version: upon acceptance or judgment, the usurped property becomes the guarantor's property, having in effect bought it; recourse ceases after this transfer, as if he had bought it from the first. Before acceptance or judgment, no transfer has occurred, and he may take from either of the two as he wishes. The import of the "Jami" version: by choosing to hold the second usurper liable, he shows that he consents to be paid from the first, and that the second is like a depositary; by choosing to hold the first liable, he shows that the second destroyed nothing, since he did not deprive him of his hand; and Allah knows best ("Bada'i al-Sana'i", 7/144, 145; "al-Durr al-Mukhtar", 6/197; "Ghamz Uyun al-Basa'ir", 2/207; "Majma al-Anhar", 4/89; "Majma al-Damanat", 1/291).
Among the Malikis, the ruling is the same: the usurper of a usurper is like the usurper; if the property perishes, the owner holds whichever he wishes liable, and the guarantee settles on the second because he is the direct agent of the loss ("Tahbir al-Mukhtasar", 4/381; "al-Sharh al-Kabir" with "Hashiyat al-Dasuqi", 5/161).
The Shafi'is teach that every hand established upon the usurper's hand is a hand of guarantee: at the time of loss, the owner chooses to claim from the first or the second; if he holds the first liable, the first has recourse against the second; if he holds the second liable, there is no recourse, for he is a usurper. If the owner absolves the first usurper, the second is not absolved; if he absolves the second, the first is absolved, for the guarantee settles on the second. Likewise, one who seizes the usurped property from the usurper in order to return it to its owner, and with whom it perishes, guarantees it according to the sounder opinion; for on that opinion, individuals have no right of seizure, the judge being the deputy of the absent without being a legally appointed trustee; the judge or his deputy are exempt and guarantee nothing. According to the opposite opinion, one who seizes the property in order to return it to the owner and with whom it perishes guarantees nothing ("Rawdat al-Talibin", 3/641, 642; "al-Ashbah wal-Nazair" of al-Subki, p. 342; "al-Mansur", 2/342; "al-Najm al-Wahhaj", 5/175; "Mughni al-Muhtaj", 3/293; "Tuhfat al-Muhtaj", 7/27; "Nihayat al-Muhtaj", 5/177, 178).
The Hanbalis likewise state that the hand following usurpation is a hand of guarantee: if the property perishes with the second usurper, the owner holds whichever he wishes liable, both for its value and for the wage of the period it stayed with the second. If he holds the first liable, the first has recourse against the second; if he holds the second liable, there is no recourse, for the property perished in his hand and the guarantee settles there, like the usurper when the property perishes under his hand ("al-Mughni", 5/158, 159, 169, 170; "al-Kafi", 2/406, 408; "al-Mubdi", 5/178; "al-Insaf", 6/170; "Kashshaf al-Qina", 4/127).
When the usurper sells the usurped object, the buyer is sometimes aware of the usurpation: his status then follows that of the usurper according to most scholars; the owner holds whichever of the two he wishes liable: if he holds the usurper liable, the latter has recourse against the buyer; if he holds the buyer liable, there is no recourse against the usurper, with a detail among them that follows. If the buyer is unaware of the usurpation, the scholars differ.
The Hanafis: if the usurper sells the property to a second man with whom it perishes, the owner has the choice. If he holds the usurper liable, the sale is validated and the price belongs to him. If he holds the buyer liable, the sale is void and no recourse for the guarantee lies against the seller, but the buyer has recourse against him to recover the price. The same applies if the buyer consumes the property ("Bada'i al-Sana'i", 7/144; "Mukhtasar Ikhtilaf al-Ulama", 4/182, 183).
Al-Baghdadi (may Allah have mercy on him) reports the same: if the usurper sells the usurped property, the owner is free to hold either liable, and if he holds the buyer liable, the latter has recourse against the seller for what he guaranteed; this is the content of the authorized version of "al-Hidayah". In "al-Khulasa": if he holds the usurper liable, the sale is validated and the price belongs to him; if he holds the buyer liable, the latter has recourse against the seller for the price, the sale is void, and no recourse lies for what he guaranteed ("Majma al-Damanat", 1/293; "Durr al-Hukam", the commentary of "Majallat al-Ahkam", 2/462).
The Malikis: one who buys from a usurper what he usurped without knowing of the usurpation, then destroys it deliberately, as when he eats the food or wears the garment until he wears it out, guarantees the owner the like of the like and the value fixed by expert appraisal (awwam) on the day he took possession of it.
But if what he bought perished with him through a heavenly cause, that is, without anyone's intervention, nothing is due from him to the owner; likewise nothing is due from him of the revenues (ghalla), otherwise he guarantees to the usurper. As for one who damages by negligence the property bought from a usurper without knowing of the usurpation, whether destroying or defecting it, there are two interpretations in the madhhab: either he guarantees the appraised value and the like of the like in the destruction, as if he had acted deliberately, for in the property of others both are equal, and he becomes a second claimant against the owner; or there is no guarantee in accidental damage, which is like the heavenly cause, and he is not a second claimant. If the buyer knew that his seller was a usurper, his status is that of the usurper: the owner follows whichever of the two he wishes and recovers the revenues and the rest; if he has recourse against the usurper, he has no recourse against the buyer; if he has recourse against the buyer, the latter has recourse against the usurper for its price ("al-Taj wal-Iklil", 4/324, 325; "Sharh Mukhtasar Khalil", 6/146, 147; "al-Sharh al-Kabir" with "Hashiyat al-Dasuqi", 182, 183; "Tahbir al-Mukhtasar", 4/404; "Hashiyat al-Sawi", 8/422, 423).
The Shafi'is: all the hands that follow the usurper's hand are hands of guarantee. Whether the buyer knows of the usurpation or not, the owner holds whichever of the two he wishes liable, for ignorance does not remove the guarantee, only the sin; the owner claims from either of them ("Rawdat al-Talibin", 3/641, 642; "al-Ashbah wal-Nazair", p. 342; "al-Mansur", 2/342; "al-Najm al-Wahhaj", 5/175; "Mughni al-Muhtaj", 3/293; "Tuhfat al-Muhtaj", 7/27; "Nihayat al-Muhtaj", 5/177, 178).
The Hanbalis: the buyer either knows of the usurpation or not, and the reference in this is to him, for the matter is hidden. If he is aware, his status is that of the usurper and the owner holds whichever he wishes liable; if he holds the usurper liable, the latter has recourse against the other, but the other has no recourse against him, for he is the one who caused the destruction, and the guarantee settles on the buyer. Each of the two is a usurper: usurpation is the seizure of another's property by force and without right, and it is found in both of them; each must return it when it is in his hand, his hand being over it without right. The Prophet (peace and blessings be upon him) said:
"The hand that takes is liable for what it took until it returns it."A saying of the Prophet (peace and blessings be upon him), cited by the jurists
The buyer bears all that the usurper bears: diminution and the rest, for he is a usurper. If he is unaware of the usurpation, the owner may likewise claim its return from either of the two: the usurper seized it without right, and the buyer took possession of another's property without right.
There remains the nuance that if the owner holds the buyer liable, the latter has recourse against the usurper ("al-Sharh al-Kabir", 5/418, 419; "Sharh al-Zarkashi", 2/161, 162). Sheikh al-Islam Ibn Taymiyyah (may Allah have mercy on him) was asked about a man who usurped an item and sold it to a man aware of the usurpation; the owner came and took it from the buyer's hands: may the buyer have recourse against the usurper for the price he paid him, or does he have nothing to claim and what he spent is lost? He answered: the buyer does have recourse against the usurper for the price he paid him, whether he knew or not; for the price was taken without right, even with his consent. If two people exchanged, by mutual consent, that whose sale is unlawful, such as wine or a pig, the seller would have to take back the sold object, thereby destroying the wine and the pig, and refund the price to the buyer: how then when he sold another's property? By what right would the price remain in the usurper's hands? He has no right to it; it belongs to the buyer, and Allah knows best ("Majmu al-Fatawa", 30/318, 319).
Ibn Qudamah (may Allah have mercy on him) had noted before this: such is the view of al-Shafi'i and Muhammad ibn al-Hasan in this entire question; it has been reported from Abu Hanifah that the wage belongs to the usurper and not to the owner of the house, and this is void, for the wage is the compensation for the usufructs owned by the owner of the house, which the usurper does not possess, like the compensation for limbs ("al-Mughni", 5/158; "al-Kafi", 2/408).
Al-Kasani: if the usurper rents out the usurped property or pledges it to someone and the property perishes with him, the owner has the choice. If he holds the usurper liable, there is no recourse against the lessee or the pledgee: it appears that the usurper rented out and pledged his own property. One reservation: in pledge, the pledgee's claim is extinguished according to the rule governing the loss of the pledge. If he holds the lessee or the pledgee liable, they have recourse against the usurper for what they guaranteed, and the pledgee also has recourse for his debt. The pledgee's recourse by way of guarantee is beyond doubt, for he was deceived; that of the lessee is explained by the fact that he acquired ownership of the usufruct for a compensation, the wage, so that the uncertainty (gharar) is realized: he resembles the depositary. If the lessee or the pledgee consumes the property, the owner has the choice; if he holds the usurper liable, the latter has recourse against the lessee and the pledgee, who consumed what they believed to be his property; if he holds the lessee or the pledgee liable, there is no recourse, for they guaranteed by their own act ("Bada'i al-Sana'i", 7/145; "Durr al-Hukam", 2/462).
"Durr al-Hukam": when the usurper rents the property to another and the leased object remains an object in the lessee's hand, the owner has the choice: to ratify the lease if its conditions of ratification are met and collect the rent, or to rescind the lease and take back the leased object from the lessee. If the leased object perishes, the owner has the choice: to hold the usurper liable for its value on the day of usurpation, in which case the usurper has recourse against the lessee only if the loss came from the latter's aggression or negligence; or to hold the lessee liable for the value on the day of his taking possession. On this latter option: if the lessee did not know that the lessor was a usurper, he has recourse against him for what he guaranteed; if he knew, he has no recourse ("Durr al-Hukam", 2/527).
The Shafi'is: when the usurper rents out the property, the lessee owes the owner the wage of the like and has no recourse for it against the usurper, for he entered the contract undertaking to guarantee it and to recover the agreed wage ("al-Sharh al-Kabir" of al-Rafi'i, 5/479; "Rawdat al-Talibin", 3/642, 691).
The Hanbalis: the lease is void according to one of the narrations, like the sale, and the owner holds whichever of the two he wishes liable, for the wage of the like. If he holds the lessee liable, the latter has no recourse, for he entered the contract undertaking to guarantee the usufruct; unless the wage of the like exceeds the named sum in the contract: he then has recourse for the excess, the named sum in the contract falling from his charge. If he paid it to the usurper, he recovers it. If the object perishes in the lessee's hand, the owner obliges whichever of the two he wishes to pay its value. If he obliges the lessee, the latter has recourse against the usurper, for he entered with him expecting not to guarantee the object, and received no compensation for what he paid: this, if the usurpation was unknown to him; if he knew of it, he has no recourse, for he entered knowingly and the loss occurred in his hand, the guarantee settling there. If the usurper is held liable for the wage and the value, he has recourse for the wage against the lessee in every case, and for the value only if the lessee knew of the usurpation, otherwise not.
When the usurper entrusts the usurped property in deposit to a third party: if the depositary knew of the usurpation and the property perishes with him, the guarantee falls upon him according to most jurists, for he took possession of another's property without his permission. If he did not know, no guarantee falls upon him according to the Malikis, the Shafi'is and the Hanbalis; among the Hanafis, the owner has the choice to hold either liable, and if he holds the depositary liable, the latter has recourse against the usurper who deceived him. The Hanafis give the grounds: the usurper's liability is manifest; the depositary's comes from his taking possession without the owner's consent. If he holds the usurper liable, there is no recourse in guarantee against anyone: it appears that he deposited his own property. If he holds the depositary liable, he has recourse against the usurper for the deception of the deposit: it is in reality a guarantee of obligation. If the depositary consumes the property, the answer is the reverse of the first case: if he holds the usurper liable, the latter has recourse against the depositary who consumed his property; if he holds the depositary liable, there is no recourse against the usurper, the guarantee having occurred by his own act ("Bada'i al-Sana'i", 7/144, 145; "Multaqa al-Abhur", 475; "Hashiyat Ibn Abidin", 6/180; "Tanqih al-Fatawa al-Hamidiyya", 5/157; "Durr al-Hukam", 2/462).
"Durr al-Hukam": if the usurper deposits the property with someone and it perishes, even without aggression or negligence, the owner has the choice. If he holds the usurper liable, the latter has no recourse against the depositary; for the usurper, owner by virtue of the guarantee at the time of usurpation, deposited it as his own property; the property remains an entrusted deposit so long as it does not perish by an act of the depositary, such as aggression or negligence: in that case, the usurper also has recourse against him. If he holds the depositary liable, the latter has recourse against the usurper if he did not know of the usurpation; if he knew, some jurists permit the recourse and others forbid it. The right to hold the usurper liable rests on article 891, and holding the depositary liable follows from his taking the property without the consent of its owner, that is, the person usurped ("Durr al-Hukam", 2/235).
The Malikis: no deposit entails a guarantee for the depositary unless he transgresses; for the depositary's hand is like his chest ("al-Dhakhira", 8/273).
The Shafi'is: every hand established upon the usurper's hand is a hand of guarantee. When the usurper deposits the property with someone who knows of the usurpation, that person is like the usurper of a usurper: the owner chooses to claim from the usurper or the depositary; if the property perishes in the depositary's hand, the guarantee settles upon him: if he pays, there is no recourse against the first; if the first pays, he has recourse against him. If the depositary did not know of the usurpation, the guarantee settles on the usurper according to the madhhab, for he entered knowing that his hand stood in place of the usurper's; if the owner obliges the usurper to pay, there is no recourse against the depositary, without disagreement; if he holds the depositary liable, the latter has recourse against the usurper according to the sound opinion of the madhhab. There is an opinion in which the guarantee settles on the depositary, and an opinion in which the depositary is not claimed at all ("al-Hawi al-Kabir", 7/125; "Rawdat al-Talibin", 3/641, 642; "al-Ashbah wal-Nazair", p. 342; "al-Mansur", 2/342; "al-Najm al-Wahhaj", 5/175; "Mughni al-Muhtaj", 3/293; "Tuhfat al-Muhtaj", 7/27; "Nihayat al-Muhtaj", 5/177, 178).
The Hanbalis: if the usurper deposits the property or delegates a man to sell it, handing it over to him, and it perishes in his hand, the owner holds whichever of the two he wishes liable: the usurper, because he barred the owner from his property and established an ordinary hand over him; the depositary and the agent, because they established their hands over the property of a protected person without right. If the usurper is obliged to pay while both were unaware of the usurpation, the guarantee settles upon him with no recourse; if both are obliged, they have recourse against the usurper for the value and the wage, for they entered undertaking not to guarantee any of that, having received no compensation for what they guaranteed. If the usurpation was known to them, the guarantee settles, the loss having occurred under their hands without deception: if they pay anything, there is no recourse; if the usurper pays, he has recourse against them. If the usurper injures the property and then deposits it or returns it to the owner, and the loss comes from the injury, the guarantee settles on the usurper in every case: he is the one who caused the loss, as if he had destroyed it in his own hand ("al-Mughni", 5/158; "al-Kafi", 2/406, 407; "Kashshaf al-Qina", 4/127).
The majority of jurists state that if the usurper lends the usurped property and it perishes with the borrower, the owner chooses between holding the usurper and the borrower liable. The guarantee settles on the borrower according to the Shafi'is and the Hanbalis; among the Hanafis, whichever of the two guarantees has no recourse against the other. The Hanafis give the grounds: the usurper's liability is beyond doubt, for he lent his own property and the property perished with the borrower; the borrower's comes from the fact that he acquired ownership of the usufruct, so that the uncertainty is not realized ("Bada'i al-Sana'i", 7/145; "Durr al-Hukam", 2/462).
"Durr al-Hukam": when the usurper lends the property and delivers it, the object being in the borrower's hands, the owner has the choice: to ratify the loan, whereupon the usurper leaves the circuit; or not to ratify it and take the property back from the borrower, while holding the usurper liable for the value of the usurped property on the day of usurpation, by virtue of article 1635, which counts him among those who consume it by lending it and delivering it. If the owner holds the borrower liable, the latter has no recourse against the usurper, for that person's taking of possession was for himself ("Radd al-Muhtar"); likewise, if he holds the usurper liable, the latter has no recourse against the borrower, see the commentary of article 658. But if the loss comes from an aggression, such as destruction by the borrower, the guarantee settles upon him: if the owner held the usurper liable, he also has recourse against the borrower ("Durr al-Hukam", 2/528).
Among the Malikis, al-Qarafi (may Allah have mercy on him) reports from Sahnun: when the lender is a usurper, the owner cannot hold him liable for the diminution alone, but may hold him liable for the whole, with nothing against the borrower. If the usurper is destitute, the garment is sold for its value and the borrower is pursued for less than the full value, that is, what wearing diminished; unless the usurper owned property at the time the borrower wore the garment and then lost it: the borrower then guarantees nothing, following the usurper in the value. The creditor may, if the usurper is absent, take the garment or what wearing diminished from the borrower ("al-Dhakhira", 8/272, 273).
The Shafi'is and the Hanbalis: if the lent usurped property perishes with the borrower, the owner chooses between holding the usurper and the borrower liable, and the guarantee settles on the borrower, for his hand is a hand of guarantee.
The Shafi'is explain: the borrower's hand is a hand of guarantee whether he knew of the usurpation or not; if he knew, he is sinful and the guarantee is added to it; if he did not know, the guarantee settles without sin upon him, for ignorance does not remove the guarantee but only the sin. The owner claims from either of the two: the borrower entered into the guarantee, and the usurper did not deceive him since the loan is guaranteed; if he holds the usurper liable, the latter has recourse against the borrower who is a guarantor; if he holds the borrower liable, there is no recourse against the usurper, the borrower having entered into the guarantee ("al-Hawi al-Kabir", 7/125; "Rawdat al-Talibin", 3/641, 642; "al-Ashbah wal-Nazair", p. 342; "al-Mansur", 2/342; "al-Najm al-Wahhaj", 5/175; "Mughni al-Muhtaj", 3/293; "Tuhfat al-Muhtaj", 7/27; "Nihayat al-Muhtaj", 5/177, 178).
The Hanbalis: if the lent usurped object perishes with the borrower, the owner holds whichever he wishes liable, both for the wage and for the value. If he obliges the borrower who knew of the usurpation, the latter has no recourse; if he obliges the usurper, the latter has recourse against the borrower. If the borrower did not know of the usurpation and is obliged to pay, he has no recourse for the value of the object, for he took it on the footing that it would be guaranteed; as for the wage he paid, there are two views: the first, he has recourse, for he entered expecting the usufructs to be his without being a guarantor; the second, he has no recourse, for he benefited from the property and thereby received compensation for what he paid. The same applies to what perishes of the parts through use. If the object was worth more on the day of taking possession than on the day of loss, he guarantees the greater and should have recourse for the difference, for he entered expecting to guarantee nothing, having received no price for it. If the borrower returns the property to the usurper, the owner may also hold him liable, for he deprived the owner of his property by handing it over to one not entitled to it; the guarantee settles on the usurper if the loss occurs in his hands. The same ruling applies to the depositary and the like ("al-Mughni", 5/159, 169; "al-Kafi", 2/406, 408; "Kashshaf al-Qina", 4/127).
If the usurper gives the usurped property as a gift and it perishes with the donee, the owner holds whichever of the two he wishes liable, by the agreement of the four schools; they differ only as to upon whom the guarantee settles, and as to whether the donee's knowledge of the usurpation makes any difference.
The Hanafis: if the property is delivered intact to the donee, the owner has the choice: to ratify the gift and the delivery, to rescind the gift and take the property back from the donee, or to hold the usurper liable for its substitute, the delivery to another counting as consumption. If the property perishes in the donee's hand, the owner holds the usurper or the donee liable; if he holds the donee liable, he has no recourse for the substitute against the usurper, for that person's taking of possession was for himself. The same ruling applies to charity. Al-Tahawi reports from the Hanafi scholars: if someone usurps a garment to give it away and the donee tears it, the owner holds the usurper or the donee liable, with no recourse of one against the other ("Mukhtasar Ikhtilaf al-Ulama", 4/180; "Majma al-Damanat", 1/293; "Hashiyat Ibn Abidin", 6/197, 198; "al-Fatawa al-Hindiyya", 5/147; "Durr al-Hukam", 2/527).
The Malikis: the heir of the usurper and the one to whom the usurper made a gift, if they knew of the usurpation, have the status of the usurper regarding the fine of the appraised value and the like of the like; the creditor has recourse for the revenues against whichever of the two he wishes, and he has recourse against the heir and the donee for the revenues, for upon learning the truth they were asked to return it: not having done so, the status of aggression attaches to them by that cause.
If the donee did not know of the usurpation, one begins with the usurper for the fine, if he is alive and solvent, or with his estate if he is deceased and solvent: he is obliged to pay the appraised value if the item is gone, or the like of the like. The owner has recourse against the solvent usurper for the revenues the donee drew from the usurped property, and the usurper has no recourse for any of that against the donee. The recourse against the usurper for his donee's revenues takes place if the item still exists, or if it is gone and the creditor chose the revenues: value and revenues are not combined. If the usurper is insolvent, the creditor has recourse for the revenues against the donee, who is the one who consumed them; the donee has no recourse for any of that against the usurper, who would say: "I made you a gift of property", the right having been extinguished. If both are destitute, the first of the two who is solvent is pursued, and whoever pays has no recourse against the other. The recourse against the donee bears only on what he drew from the property, if the item exists or is gone and the creditor chose the revenues; if he chooses the value, he takes only that, without any revenues, the combination being forbidden ("al-Taj wal-Iklil", 4/325, 327; "Sharh Mukhtasar Khalil", 6/147, 148; "al-Sharh al-Kabir" with "Hashiyat al-Dasuqi", 183, 184; "Tahbir al-Mukhtasar", 4/405; "Hashiyat al-Sawi", 8/426, 428).
Al-Qarafi (may Allah have mercy on him) explains: if the usurper makes you a gift of food that you eat, or of a garment that you wear until it wears out, the creditor has recourse against the solvent usurper, who is the aggressor given free rein; if he is destitute or incapable, it falls upon you, for you are the one who benefited from his property; and you have no recourse for anything against the donor, who neither benefited himself nor made you benefit. Likewise if the usurper lends it to you and wearing diminishes it, you have no recourse against the lender.
Ibn Yunus reports from Ashhab: if the usurper makes you a gift and you wear the property out or eat it, whichever of you two is pursued, the cause of the guarantee being found in you both. Ibn al-Qasim says: if the donor is not a usurper, only the benefiting donee is pursued. The opposite rule appears in the book of entitlement (istihqaq) concerning one who granted another the lease of land and whose brother then appears as a right-holder: no distinction is made there between the aggressor and others. The basis in the "Mudawwana" is to begin the recourse with the donor; if he is insolvent, against the donee; unless the donor knew of the usurpation: he then has the status of the usurper in all respects, and recourse is had against whichever of the two one wishes. Ashhab's opinion is closest to qiyas: the donee cannot be better off than the buyer. Beginning with the usurper is explained by the fact that the wrongdoer is most worthy of bearing the burden. The difference between the donee and the buyer is that the buyer, once made to pay, has recourse for the price, whereas the donee has no recourse ("al-Dhakhira", 8/273).
The Shafi'is: when the usurper gives the usurped property away, the guarantee settles on the donee according to the most manifest opinion, for even if his hand is not a hand of guarantee, he took it to acquire ownership; the opposite opinion settles it on the usurper, the hand of mere holding not being a hand of guarantee ("Rawdat al-Talibin", 3/641; "al-Hawi al-Kabir", 7/205; "al-Najm al-Wahhaj", 5/176; "Mughni al-Muhtaj", 3/294).
The Hanbalis: if the gift is made to someone aware of the usurpation, the guarantee settles on the donee; whatever he pays of the value of the object or of its parts gives rise to no recourse, the loss having occurred in his hands without deception; the same applies to the wage of the period it stayed with him and to the compensation for diminution, if any. If he did not know of the usurpation, the owner holds whichever he wishes liable: if he holds the donee liable, the latter has recourse against the usurper for the value and the parts, having been deceived, for he entered expecting to receive the object intact, and must therefore recover what he paid of its value; if he holds the usurper liable, there are two views on his recourse against the donee. Ibn Hubayrah (may Allah have mercy on him) reports that Malik, al-Shafi'i and Ahmad said: the owner holds whichever of the two he wishes liable, except that if he holds the donee liable, the latter has recourse against the usurper; and Abu Hanifah said: whichever of the two he holds liable has no recourse against the other ("al-Mughni", 5/159; "al-Kafi", 2/407, 408; "al-Ifsah", 2/18).
The Hanafis: if the usurper takes food that the owner eats, whether he recognizes it or not, or if the usurper makes him eat it without his knowing, or a garment that he makes him wear without his knowing, the usurper is discharged: restitution was made by the eating and the wearing; if he were to guarantee, the substitute and the substituted thing would coincide, which is invalid.
Al-Haddadi adds that according to the view of Abu Yusuf and Muhammad, one who usurps wheat, grinds it and feeds it to its owner is not discharged: he became its owner by grinding it, so that he fed his own property, an act of gratuitous disposal. The great "Bazdawi" adds: one who usurps food and feeds it to the owner without his knowing is discharged according to us, for restitution was made in reality: the object of his property reached him, and his ignorance does not invalidate his taking of possession. His ignorance, that is, his ignorance that it was his property, does not invalidate the legal ruling. Consider one who buys a slave to whom the seller says: "free this slave of mine", pointing to the merchandise: the buyer frees him without knowing that he is his slave; the manumission is valid, counted as taking possession, and the price binds him, for he freed his own property; his ignorance that it was his property does not prevent the validity of what follows from it. Such is our question ("al-Jawhara al-Nayyira", 4/140, 141).
The Malikis: one who usurps food and offers it to its owner as hospitality, who eats it: the usurper is discharged, whether the owner knew it was his or not; the owner destroyed the property himself, and the direct agent takes precedence over the indirect cause when the cause is weak. Even if the usurper compels its owner to eat it, the usurper is discharged. Likewise if the owner enters the usurper's house and eats it without his permission: the usurper is discharged.
The question remains, however, subject to the condition that the food matches the owner's standing; otherwise the usurper guarantees it to its owner, after deducting what the owner benefited from. Thus, if the food is worth ten dinars while enough of the food suited to its owner amounts to half a dinar, the usurper owes him nine and a half. When the owner eats without the usurper's permission, the rule is further subject to this being before the property's disappearance; if he eats it after the property disappeared from the usurper and its value became due from him, he has recourse against the usurper for its value, for he ate what became the usurper's property; and its owner has recourse against the usurper for its value: the two values may differ ("Sharh Mukhtasar Khalil", 6/141; "al-Sharh al-Kabir" with "Hashiyat al-Dasuqi", 5/175; "Tahbir al-Mukhtasar", 4/397).
The Shafi'is: al-Nawawi (may Allah have mercy on him) teaches that when the holder of usurped property destroys it himself, the guarantee settles upon him. If the usurper imposes it upon him by usurping food, offering it as hospitality which he then eats, the burden is on the eater if he is aware; if he is unaware, it is likewise upon him according to the most manifest and prevalent opinion of the recent period. On this opinion, if he guarantees, there is no recourse against the usurper; if the usurper guarantees, he has recourse against the eater; according to the other opinion, the reverse. This, when the usurper offers it and the eater remains silent. If he says: "it is my property", and the eater guarantees, there are two views on his recourse against the usurper; if the usurper guarantees, the madhhab is that he never has recourse, for he has confessed to being wronged and has no recourse against any but his own wrongdoer. Al-Muzani said that he has recourse, but his companions held his opinion to be mistaken ("Rawdat al-Talibin", 3/641, 642; "al-Ashbah wal-Nazair" of al-Subki, p. 342).
The Hanbalis: when the usurper feeds the food to another, the owner holds whichever of the two he wishes liable: the usurper barred the owner from his property, and the eater destroyed another's property without his permission, taking it from the hand of a guarantor without the owner's permission. If the eater knew of the usurpation, the guarantee settles upon him, having knowingly destroyed another's property without permission and without deception; if the usurper is held liable, the latter has recourse against him; if the eater is held liable, there is no recourse.
If the eater did not know of the usurpation: if the usurper said to him: "eat it, it is my food", the guarantee settles on the eater, the usurper having acknowledged that the guarantee remained upon him and that the eater owed nothing. If he did not say that, there are two narrations: the first, the guarantee settles on the eater, as Abu Hanifah and al-Shafi'i said in the recent period, for he guaranteed what he destroyed with no recourse against anyone; the second, it settles on the usurper, who deceived the eater by feeding him on the footing that he guaranteed nothing: this is the apparent meaning of al-Khiraqi's words. Whichever of the two the guarantee settles upon and who pays has no recourse; if its owner obliges him to pay, he has recourse against him.
When the usurper feeds the food to its very owner: if the latter eats it knowing that it is his food, the usurper is discharged; if he does not know and the usurper says to him: "eat it, it is my food", the guarantee settles on the usurper. If the owner has proof of it and the usurper says nothing of the sort but offers it saying "eat", or "I have given it to you as a gift", or remains silent, the apparent view of Ahmad is that the usurper is not discharged. Ahmad indeed said, in al-Athram's narration, about a man who had a claim against another and delivered what was due to him by way of charity or gift without his knowing: "How is this? He takes it to be a gift"; he is told: "say to him: this belongs to you with me"; which indicates that the usurper is not discharged by his owner eating his food, according to the preferred view: there, the hand and the authority return to him; here, by the earlier delivery made to him, neither the hand nor the authority return to him, since he cannot dispose of the property as he wishes, neither taking it, nor selling it, nor giving it in charity. The usurper is therefore not discharged, as if he had made it the fodder of his beasts. It is inferred that he would be discharged if he fed the food to others than its owner, the guarantee settling on the eater according to one of the two narrations: he is discharged here according to the sounder view.
Ibn Qudamah adds: if he gives it or presents it as a gift to its owner, the sound opinion is that he is discharged: the delivery is valid and complete, the usurper's hand removed. Ahmad's words in al-Athram's narration concern the case where he gives the property in compensation for his right in the form of a gift: the owner accepts it on that footing and not as compensation, so that no counter-exchange is established; our question concerns the case where he returns to him the object of his property and restores to him the hand he had removed. If he sells it to him and delivers it to him, he is discharged from the guarantee, for he took it by purchase, and purchase entails the guarantee. If he lends him money, he is discharged for that reason; if he lends him the object, he is likewise discharged, for the loan entails the guarantee. If he deposits it with him, rents it to him, pledges it, or leaves it with him to have it shortened or taught, he is not discharged from the guarantee, unless he knows the situation, for his authority has not returned to him: he took possession only as an entrusted deposit. Some of our companions say that he is discharged, his hand and authority having returned to him; this is one of the two views of al-Shafi'i's companions, and the first is preferable: were he to permit him to eat it and he ate it, he would not be discharged, so here all the more ("al-Mughni", 5/158, 159, 169, 170; "al-Kafi", 2/406, 408; "al-Mubdi", 5/178; "al-Insaf", 6/170; "Kashshaf al-Qina", 4/127).