Islamic Fiqh > Endowments (waqf) and property > Ghasb: usurpation > Increments of the usurped item: connected increments
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Updated on 25 September 2026 at 6:57 PM
This part belongs to the full section: All sections of this part.
The usurped item may increase with the usurper in two ways: a connected increase (muttasil), like fattening or the learning of a craft, or a separate increase (munfasil), like fruit and offspring.
First: the guarantee of the connected increase. If it increases by a connected increase, like fattening, the learning of a craft or the like, the owner takes it and the usurper has nothing, not even a wage for what he did, for the owner did not authorize him.
The jurists differ, however, if this increase then disappears, the animal growing thin or returning to its pre-fattening state: does he guarantee this lost increase? The Shafi'is and the Hanbalis: the connected increments of the usurped item are guaranteed on the usurper like the usurpation itself; for the property of the victim that came into his hand by usurpation, he guarantees its destruction like the original; it is an increase of the usurped item that the usurper guarantees, as if he were required to return it and refused. The continuation of the usurpation is equivalent to its beginning, the usurper being in every state required to return the item; if he does not return it, he is like the initiator of the usurpation. On this basis, he returns the original and the arsh of what decreased with him.
Example: he usurps a mount worth one hundred, it fattens with him up to one thousand, then grows thin, returning to one hundred: he must return it and pay nine hundred for the loss of the fattening. If he usurped it worth one hundred, then the price rose to one thousand, then fell back to one hundred: nothing is imposed on him; but if it perishes or dies, the highest value is due, with the Shafi'is, as has come (Al-Bayan, 7/31, 33; al-Rafi'i's Al-Sharh al-Kabir, 5/404; Rawdat al-Talibin, 3/657; Al-Mughni, 5/151; Al-Mubdi', 5/168; Al-Inasaf, 6/160; Kashshaf al-Qina', 4/114).
The Hanafis and the Malikis: the connected increments of the usurped item, like fattening, beauty and the learning of a craft, are not guaranteed on the usurper: they are a trust in his hand; if they disappear without transgression or negligence, no guarantee, unless he is required to return them and refuses.
The Hanafis: the increments of usurpation and its connected benefits, like fattening and beauty, are a trust in the usurper's hand; if they disappear, no guarantee, unless he transgresses upon the increase by destroying it, eating it or selling it, or if its owner demands it and he withholds it: he then guarantees. The proof that they are not guaranteed: usurpation is only the establishment of the hand over another's property in a way that would remove the owner's hand, as mentioned; now the owner's hand was not established on this increase for the usurper to remove.
If he consumes the item after the increase, by selling it and delivering it to the buyer who sees it perish with him, the victim has the choice: hold the usurper liable for its value on the day of usurpation, the sale then being valid and the price going to the usurper; or hold the buyer liable for its value on the day of taking possession, the sale then being voided, and he may claim the price from the usurper; he may not hold the usurper liable at the moment of delivery, according to Abu Hanifa.
It is the same if he usurps a ewe, fattens it and then slaughters it: he guarantees its value on the day of usurpation. If he usurps a slave girl worth one thousand, who gains in fattening and beauty with him up to two thousand, then he kills her accidentally or another kills her accidentally, the owner chooses: hold the usurper liable for one thousand, its value on the day of usurpation, immediately from his property; or hold the killer's aqila (solidarity group) liable for two thousand, its value on the day of death, over three years (Bada'i' al-Sana'i', 7/143; Al-Hidaya, 4/19; Al-Jawhara al-Nayyira, 4/137-138; Al-Lubab, 1/639; Al-Bahr al-Ra'iq, 8/137; Majma' al-Damanat, 1/312; Al-Ikhtiyar, 3/80; Hashiyat Ibn Abidin, 6/204).
The Malikis: the connected increments of the usurped item, like fattening, the learning of a craft or increased marketability, are not guaranteed on the usurper; for he guarantees on the day of usurpation, and what befalls the parts or the price by decrease or increase does not concern him: it is an accident upon a guaranteed item. The return of the usurped item to its owner in the state of usurpation requires acceptance, hence the lapse of the guarantee; the original being what did not increase with him, with consideration of market rises (Al-Ishraf 'ala Nukat Masail al-Khilaf, 3/123-124, no. 979; Al-Ma'una, 2/190).
The jurists differ on the status of the separate increments of the usurped item, like offspring, fruit and eggs: are they a trust in the usurper's hand or guaranteed like the original? The disagreement is the same as for the connected increments.
The Hanafis and the Malikis: they are a trust in the usurper's hand, not guaranteed except by transgression, negligence, or withholding when the owner demands them.
The Hanafis: the separate increments of usurpation, like the offspring of the usurped animal and the fruit of the usurped orchard, are a trust in the usurper's hand; if they disappear, no guarantee, unless he transgresses by destroying them, eating them or selling them, or if their owner demands them and he withholds them: he guarantees. The proof: usurpation is only the establishment of the hand over another's property in a way that would remove the owner's hand; now the owner's hand was not established on this increase.
Even if it were admitted, he does not remove it: withholding is absent by default; still, if he withholds the offspring after it has been demanded, he guarantees it; likewise if he transgresses: destroying it, slaughtering and eating it, or selling and delivering it, as mentioned (Bada'i' al-Sana'i', 7/143; Mukhtasar Ikhtilaf al-'Ulama', 4/174; Al-Hidaya, 4/19; Al-'Inaya, 13/389; Al-Jawhara al-Nayyira, 4/137-138; Al-Lubab, 1/639; Al-Bahr al-Ra'iq, 8/137; Majma' al-Damanat, 1/312; Al-Ikhtiyar, 3/80; Hashiyat Ibn Abidin, 6/204).
The Malikis: the offspring of the usurped animal born after the usurpation is not guaranteed on the usurper; the usurpation did not seize the newborn offspring, which resembles the offspring of the deposited property and the loaned property; it is an occurring growth, like fattening. Likewise the fetus is not guaranteed: it is a growth of the animal's body in the state of usurpation, not guaranteed on the usurper, like fattening (Al-Ishraf 'ala Nukat Masail al-Khilaf, 3/125, no. 981).
The Shafi'is and the Hanbalis: the separate increase, like offspring, fruit and eggs, is guaranteed like the original, whether it perishes by his transgression, his negligence or otherwise; whether he demanded it and was prevented, or did not demand it: guaranteed in every case.
The Shafi'is: the separate increments of the usurped item, like offspring, fruit and eggs, or connected, like fattening and the learning of a craft, are guaranteed on the usurper like the original, whether the owner demands the return or not; for the offspring of the usurped animal is in the usurper's hand like the mother, as shown by the fact that if he claimed ownership of it, his word would be accepted on account of his hand: he must therefore guarantee it by his hand like its mother.
And because the guarantee of usurpation is stronger than that of unlawful hunting, and the offspring of game is guaranteed, the offspring of usurpation is all the more guaranteed. Two analogies protect the qiyas from invalidity: first, whatever the mother is guaranteed for by transgression, the offspring is guaranteed for, like the hunting of the muhrim; second, whatever the offspring of game is guaranteed for, the offspring of the usurped animal is guaranteed for, like withholding.
And because it is joined to the usurped item, it may be guaranteed like the fattening; because what is guaranteed by offence is guaranteed by usurpation, like the separate one; and because what may be guaranteed by usurpation outside its container may be guaranteed inside it, like dirhams in a purse and jewelry in a case (Al-Hawi al-Kabir, 7/150; Al-Bayan, 7/31, 33; al-Rafi'i's Al-Sharh al-Kabir, 5/404; Rawdat al-Talibin, 3/657).
The Hanbalis: the increments of usurpation in the usurper's hand are guaranteed like the usurpation: fattening, the learning of a craft and others; as well as the fruit of the tree and the offspring of the animal: as soon as any part of it perishes in his hand, he guarantees it, whether it perished alone or with the original; for the property of the victim that came into his hand by usurpation, he guarantees its destruction like the original (Al-Mughni, 5/151; Al-Mubdi', 5/168; Al-Inasaf, 6/160; Kashshaf al-Qina', 4/114).
The jurists differ on the usurped item that changes by an act to the point that its name and major benefits disappear: one who usurps a ewe and cooks or roasts it, wheat that he grinds into flour, iron that he forges into a sword, or wheat that he sows. Does the owner's ownership lapse, the usurper becoming owner while guaranteeing? Or does the item remain the owner's, the usurper guaranteeing with the arsh of the decrease? Or does the owner choose between taking it without claiming anything and fining the usurper with its increased value?
The Hanafis: if the usurped item changes by the usurper's act to the point that its name and the bulk of its benefits disappear, like slaughtering a ewe and roasting or cooking it, grinding wheat, forging iron into a sword, shaping brass into vessels, the victim's ownership lapses, the usurper becomes owner and guarantees. An appraised craft has occurred, which voided the owner's right in one respect, the name having changed and the bulk of the purposes having vanished, while the usurper's right in the craft is established in every respect and prevails over the original, lost in one respect. And it is not made a cause of ownership from the aspect of the forbidden, but from that of the creation of a craft.
The sound view: the usurper becomes owner only upon payment of the guarantee, upon the judgment of guarantee or upon the litigants' agreement on the guarantee; if one of these three exists, ownership is established, otherwise not. Once one of the three is established and ownership fixed, it is not lawful for the usurper to take hold of it, unless its owner makes it lawful for him, and he may not derive benefit from it before paying the replacement. From Asim ibn Kulayb, from his father, a man of the Ansar related to him:
We went out with the Messenger of Allah (peace and blessings of Allah be upon him) for a funeral. On the way back, we met a woman of Quraysh who was inviting (the Prophet). She said: Messenger of Allah, so-and-so invites you and your companions to a meal. So we went with him and sat in the places of the servants of their fathers, before them. The food was brought; the Messenger of Allah put out his hand and the people put out their hands; the people understood, while he was chewing his morsel without swallowing it; they withdrew their hands and became heedless, then remembered and seized our hands. The man kept striking the morsel with his hand so that it would fall; then they held our hands, watching what the Messenger of Allah would do: he spat it out and threw it away, and said: I find the meat of a sheep taken without the permission of its people. The woman rose and said: Messenger of Allah, I intended to gather you for a meal; I sent to al-Baqi' but found no sheep for sale; Amir ibn Abi Waqqas had bought a sheep yesterday at al-Baqi'; I sent to him to seek for me a sheep at al-Baqi' and none was found; I was told that you had bought one: send it to me. The messenger did not find him but found his family, who handed it to my messenger. The Messenger of Allah said: Feed it to the captives.Narrated by Ahmad (22562), and by al-Tahawi in Sharh Mushkil al-Athar (7/455-456) with a sound chain
In this hadith, the Messenger of Allah commands feeding the sheep to the captives, who may be given such property as charity, and does not command detaining it for the benefit of the one who slaughtered it while it was his property: a sign that ownership was lifted from it and passed to the one who performed upon it the slaughtering and the cooking. And because permitting benefit before the payment of the replacement opens the door of usurpation: it is forbidden to derive benefit before satisfying the owner by paying the replacement or obtaining his release, so as to cut off the matter of corruption.
It is said: benefit becomes lawful to him as soon as the judge rules the guarantee; then, when he pays the replacement, benefit becomes lawful to him, the owner's right being fulfilled by the replacement, which has become an exchange by consent. Likewise if the owner grants him release, his right having lapsed; likewise if the ruler makes him guarantee it, or if the owner makes him guarantee it on account of his consent, for the ruler judges only upon demand.
If the item changes by itself, like grapes becoming raisins or fresh dates becoming dates, the owner has the choice: take it, or leave it and hold the usurper liable. Likewise if the name has not disappeared, like the slaughtered sheep: one says a living sheep and a slaughtered sheep. Likewise if its major benefits subsist: whoever usurps silver or gold and mints it into dirhams or dinars, the owner's ownership does not lapse, according to Imam Abu Hanifa: the owner takes the metal and the usurper has nothing. Abu Yusuf and Muhammad: the usurper becomes owner of it and owes their like (Al-Hidaya, 4/15; Sharh Mushkil al-Athar, 7/456; Tabyin al-Haqa'iq, 5/226; Al-'Inaya, 13/358-359; Al-Ikhtiyar, 3/77; Al-Jawhara al-Nayyira, 4/127, 129; Al-Lubab, 1/634-635; Al-Bahr al-Ra'iq, 8/130; Majma' al-Damanat, 1/322).
The Shafi'is and the Hanbalis, in the madhhab: whoever usurps wheat and grinds it, a ewe that he slaughters and roasts, iron of which he makes knives and vessels, wood that he carves into a door or a chest, or a cloth that he cuts and sews, does not become owner: the owner's ownership does not lapse, the owner takes the item and the arsh of its decrease, and the usurper has nothing for its increase. From Umara ibn Haritha al-Damri, from Amr ibn Yathribi al-Damri:
I attended the sermon of the Prophet (peace and blessings of Allah be upon him) at Mina. Among what he said in his sermon: It is not lawful for anyone to take from his brother's property except what his soul accepts. Upon hearing that, (the man) said: Messenger of Allah, what if I met my cousin's flock, took a sheep from it and slaughtered it: do I owe anything for that? He said: If you meet it, a ewe carrying a blade and a fire-striker in the desert of al-Jamish, do not touch it. It is said: it is a land between Mecca and al-Jar, a land without inhabitant.Narrated by Ahmad in his Musnad (15527), by al-Bayhaqi in Al-Kubra (11305) and by al-Daraqutni (2921)
Al-Jamish is a desert between Mecca and the Hijaz, sparsely inhabited; he means: if you meet it in that deadly place, it carrying a knife, which is the blade, and a fire-striker, which is the flint, do not meddle with it (Al-Hawi al-Kabir, 7/194).
And because the item of the victim's property subsists, its return is required, as if he had slaughtered the sheep without roasting it; and because if he had done so with his own property, ownership would not have lapsed: if he does it with another's property, it does not lapse either, as if he had slaughtered the sheep or minted the naqra into dirhams; and because ownership does not lapse without a human act, it does not lapse through the human act mentioned.
Ibn Qudama (may Allah have mercy on him): this being established, the usurper has nothing for his work, whether the item increased or not; this is al-Shafi'i's madhhab. Abu al-Khattab reports that the usurper shares the increase with the owner, for it occurred through his benefits, and his benefits are treated like items, like one who usurps a cloth and dyes it. The first madhhab is retained, mentioned by Abu Bakr and al-Qadi: the usurper having worked upon another's property without permission, he deserves no wage, like one who cooks oil increasing its value, builds a wall for another, sows a man's wheat in his field and other works of the usurper.
As for the dyeing of the cloth: the dye is a property in kind whose ownership does not lapse by pouring it into another's property, and this is an argument against them; for if his ownership does not lapse by pouring his dye into another's property, making it like a quality, all the more does another's ownership not lapse through his work upon it. If he argues that whoever sows in another's field is reimbursed his expenses, we reply: the sowing is the usurper's property, for it is his property; his expenses increase its value; when the owner of the field takes it, he credits him for what he spent upon his property. In our case, his work upon the usurped property was done without permission: it is therefore voided, according to our statement that the value of the sowing is owed only in one of the two narrations (Al-Mughni, 5/153).
Among the Shafi'is, one view allows the victim to leave the flour to the usurper and claim the like of the wheat, closer to his right than the flour. The sound view is the first: the victim's ownership does not lapse, the usurper must return the item diminished and what decreased of its value; the item of his property subsists, he therefore cannot claim otherwise, like the slaughtered sheep (Al-Bayan, 7/22-23).
The Malikis: whoever usurps from someone a naqra, the melted lump of gold or silver, and melts it again or shapes it into jewelry or dirhams, judgment is given to its owner for its like in quality and weight, not the item itself, because craftwork has entered it; the rule being that if a craftwork reaches a fungible, it is judged by value and joins the appraised items. Likewise copper struck into fulus (copper coinage): the like of the copper is imposed, any melting here causing the loss of the like.
Likewise whoever usurps a known quantity and quality of clay and makes bricks of it: he is fined for its owner the like if it is known, otherwise its value; the approximate fungible is guaranteed by value, clay being measured by the basket and the like. Likewise whoever usurps wheat and grinds it: the like is fined for its owner, said Ibn al-Qasim; Ashhab: the owner chooses between the like and the ground wheat without fine, the choice of a group, both views being Malik's.
Likewise whoever usurps grains and sows them: the like is imposed for its owner. Whoever usurps an egg and hatches it under his hen, from which a hen emerges: he owes a like egg, and the hen belongs to the usurper; unless the usurper usurped a laying hen that lays and hatches its eggs: then the hen and the chicks belong to the holder of the right, as if it had given birth.
But if he hatched its eggs under another's hen, or another's eggs under it, no chick belongs to the holder of the right: he has only his hen and the wage of the like for what it hatched of others' eggs.
Al-Mawwaq (may Allah have mercy on him) reports from the Mudawwana: Malik said: if the usurper makes a door from wood, usurps earth to make tiles from it, usurps wheat, sows it and harvests much grain from it, usurps sawiq which he softens with fat, or usurps silver which he shapes into jewelry or mints into dirhams, in all these cases he owes the like of what he usurped in quality, weight and measure, or the value for what is neither measured nor weighed; likewise in theft.
Al-Maziri: Ibn al-Qasim said: whoever usurps wheat and grinds it guarantees its like, and the owner of the wheat cannot take the flour, unlike Ashhab. They agree: if he grinds the wheat into sawiq and softens it, the owner of the wheat cannot take it (Al-Taj wa-l-Iklil, 4/306; Sharh Mukhtasar Khalil, 6/134-135; Al-Sharh al-Kabir with the Hashiya of al-Dasuqi, 5/165; Tahrir al-Mukhtasar, 4/385-387; al-Sawi's Hashiya on al-Sharh al-Saghir, 8/217-218).
The jurists differ on the usurper who usurps currencies or goods, trades with them and makes a profit: is the profit entirely his, as the guarantee is upon him? The owner's, as the growth of his property? Do they share it? Must it be given as charity? Does it go to the bayt al-mal (public treasury)? Or is it the usurper's without being lawful for him?
This disagreement applies to the deposit and to every property a man handles without right from its owner: does the profit belong to him or not? This is after their agreement that he guarantees the usurped property in any case; the disagreement bears on the profit obtained.
First view: the profit of trading after the sale belongs to the usurper; for he guarantees the usurped property until he delivers it to its owner, and the condition of the lawfulness of profit is the guarantee, which is fulfilled. The Prophet (peace and blessings of Allah be upon him) forbade the profit of what one does not guarantee, and this profit is guaranteed; and because, when he returns the property, the profit becomes lawful to him, with no obligation to give it as charity. This is the madhhab of the Malikis, of Abu Yusuf among the Hanafis and of Ahmad in one narration; it is the view of Shurayh the judge, al-Hasan al-Basri, al-Sha'bi, Yahya al-Ansari, Rabi'a, al-Thawri and al-Layth.
Ibn Battal (may Allah have mercy on him): the soundest of these views is the one that holds the profit for the usurper and the transgressor; his proof: the item has passed into his liability, it is like his own property; people have no purpose in the very items of dinars and dirhams, but in their handling. If he had usurped it from a man and then wished to give him others like it, present in his hand, that would be permissible on the basis of Malik's original view; if he may give him others, the profit belongs to him; and the hadith of the chapter proves it: do you not see the hired worker to whom it is said of his wage: "all that you see of camels, cattle, sheep and slaves is your wage", and who replies: "are you mocking me?"
(This hadith is narrated by Imam al-Bukhari in his Sahih, under the chapter heading: chapter of the one who hires a worker who renounces his wage and the employer works upon it and gains, or the one who works upon another's property and takes the surplus.) This indicates that the Sunna among them was that the profit belongs to the transgressor who works, with no right for the owner of the capital; the Prophet informed of it, confirmed it and did not abrogate it.
It is reported from Umar ibn al-Khattab what indicates that the profit belongs to him by the guarantee. Malik reports in the Muwatta:
Abu Musa lent Abdallah and Ubaydallah, the sons of Umar, money from the bayt al-mal. They bought goods with it, carried them to Medina and made a profit. Umar said: Hand over the capital and its profit. Ubaydallah said: That does not befit you: had the capital perished or decreased, we would have guaranteed it. A man said: what if you made it a mudaraba, O Commander of the Believers. He said: yes. And he took from them half of the profit.Reported by Malik in the Muwatta, cited by Ibn Battal in Sharh Sahih al-Bukhari (6/397-398)
Umar (may Allah be pleased with him) did not disapprove of his son's statement: had the capital perished or decreased, we would have guaranteed it; the profit therefore became lawful to him; and none of the Companions present disapproved of it (cf. Mukhtasar Ikhtilaf al-'Ulama', 3/176; Bada'i' al-Sana'i', 6/14 and 7/154; Al-Hidaya, 4/13; Al-'Inaya, 13/355; Sharh Fath al-Qadir, 6/475; Majma' al-Anhar, 4/83; Mawahib al-Jalil, 7/229-230; Al-Dhakhira, 9/178; Al-Taj wa-l-Iklil, 4/262-263; Sharh Mukhtasar Khalil, 6/111; Al-Sharh al-Kabir with the Hashiya of al-Dasuqi, 5/123-124; Bidayat al-Mujtahid, 2/234; Tahrir al-Mukhtasar, 4/346; al-Sawi's Hashiya on al-Sharh al-Saghir, 8/154; Al-Ishraf, 6/336-337; Majmu' al-Fatawa, 30/130; Mukhtasar al-Fatawa al-Misriyya, 379).
Second view: the profit belongs to the usurper, but is not lawful for him: he must give it as charity if he bought with the currencies themselves, and return the usurped capital to its owner. The view of Abu Hanifa, Muhammad ibn al-Hasan, Zufar and Ahmad in one narration; the profit here being foul through its foul cause, its way is charity (Mukhtasar Ikhtilaf al-'Ulama', 3/176; Bada'i' al-Sana'i', 6/14 and 7/154; Al-Hidaya, 4/13; Al-'Inaya, 13/355; Al-Jawhara al-Nayyira, 4/144; Majma' al-Anhar, 4/83; Ibn Battal's Sharh Sahih al-Bukhari, 6/396-397; Bidayat al-Mujtahid, 2/234; Al-Ishraf, 6/336-337; Majmu' al-Fatawa, 30/130; Mukhtasar al-Fatawa al-Misriyya, 379; Al-Mubdi', 5/187; Al-Inasaf, 6/208).
Third view: the profit belongs to the owner, not to the usurper, on the sound view among the Hanbalis; it is the view of Ibn Umar, Abu Qilaba and Ishaq.
The Hanbalis: if the usurper trades with the usurped property itself, currencies that he exchanges, or goods that he sells and with the price of which he trades, or buys upon his liability then pays with the usurped dirhams, and a profit results, the profit and the purchased goods belong to the owner; reported by the group. For faced with the necessity of assigning the profit to the usurper or to the victim, assigning it to the owner is preferable: it is in exchange for his property lost through withholding, and nothing is assigned to the usurper, as a discouragement of usurpation (Mukhtasar Ikhtilaf al-'Ulama', 3/176; Ibn Battal's Sharh Sahih al-Bukhari, 6/397; Bidayat al-Mujtahid, 2/234; Al-Ishraf, 6/336-337; Majmu' al-Fatawa, 30/130; Mukhtasar al-Fatawa al-Misriyya, 379; Al-Mubdi', 5/187; Al-Inasaf, 6/208; Kashshaf al-Qina', 4/138).
Al-Bahuti (may Allah have mercy on him): whether the purchase is held valid or void, the question is very difficult according to the rules of the madhhab, the usurper's transactions not being valid: how would the owner own the profit and the goods? But Ahmad's texts agree that the profit belongs to the owner; the companions explained it through ways all weak: Ibn Aqil based it on the validity of the usurper's transaction suspended upon ratification, followed in Al-Mughni; he based it in Al-Talkhis on its validity not suspended upon ratification, the harm of usurpation extending with time to the point of making its consideration burdensome, and he restricted that to what took long.
Al-Qadi held, in some of his books, that the usurper bought upon his liability then paid with the usurped dirhams, Ahmad having stated this in the narration of al-Marwazi: the absolute is referred to the qualified. Ibn Rajab, in Fawa'id al-Qawa'id, referred it to the fact that the currencies are not specified, as if he had bought upon his liability. In Al-Mubdi', to the case where it is impossible to return the usurped item to its owner and the price to the buyer (Kashshaf al-Qina', 4/138; cf. Al-Mubdi', 5/187; Al-Inasaf, 6/208; Sharh Muntaha al-Iradat, 4/166; Matalib Uli al-Nuha, 4/62).
Ibn Qudama (may Allah have mercy on him): if he usurps prices and trades with them, or goods that he sells and with the price of which he trades, our companions say: the profit belongs to the owner and the purchased goods belong to him. Al-Sharif Abu Ja'far and Abu al-Khattab: if the purchase is made with the property itself, the profit belongs to the owner. Al-Sharif reports from Ahmad that he gives it as charity.
If he buys upon his liability then pays the prices, Abu al-Khattab: it is possible that the profit belongs to the usurper, the view of Abu Hanifa and of al-Shafi'i in one of his two views; he bought for himself upon his liability: the purchase is his, the profit is his, and he owes the replacement of the usurped item; this is the analogy of al-Khiraqi's view. It is also possible that the profit belongs to the victim, as the growth of his property: it belongs to him as if one had bought for him with the property itself; this is the apparent meaning of the madhhab. If a loss occurs, it is upon the usurper, as a decrease that occurred in the usurped item; if he hands the property over to a mudarib, the rule of the profit is as mentioned.
The owner has nothing of the worker's wage, for he did not authorize him to work upon his property. As for the usurper: if the mudarib knew of the usurpation, no wage, for he transgresses by his work and no one deceived him; if he did not know, the usurper owes him a like wage, having employed him for a compensation that did not materialize: his wage is required, as in the invalid contract (Al-Mughni, 5/159-160; Al-Kafi, 2/393).
Fourth view: the profit belongs to the bayt al-mal; it is a narration from Imam Ahmad (Majmu' al-Fatawa, 30/130; Mukhtasar al-Fatawa al-Misriyya, 379).
Fifth view, that of the Shafi'is: if the usurper trades with the usurped item or with another's property in his hand, a deposit, a pledge, a purchased item or a loan for use, without the owner's permission, and he sells or buys with the item itself, the transaction is void and he does not own the counter-value; if he takes possession of it and it perishes, the like or the value is due. The profit obtained, if it can be returned to the owner of each contract, is returned; otherwise it is lost property.
If he concludes a salam or buys upon his liability then delivers the usurped item, the contract is valid and the delivery invalid; his liability is not released from the price, and the usurper owns what he took and its profits (Rawdat al-Talibin, 3/685; Mughni al-Muhtaj, 3/312; Nihayat al-Muhtaj, 5/209; al-Ramli's Hashiya on Asna al-Matalib, 2/357; al-Ruyani's Bahr al-Madhhab, 7/105).
Al-Imrani (may Allah have mercy on him): if he usurps from a man dirhams or dinars and trades upon his liability, pays the dirhams and the dinars and makes a profit, two views. The first, stated in the old work: the profit belongs to the victim, as the growth of his property, like the fruit of the tree; for if we made it the usurper's property, that would lead the usurper to profit from the victim's property without his permission; it was therefore made the victim's property, without his permission, to cut off the matter.
The second, stated in the new work: it is the usurper's property, for it is not generated from the victim's property: it is the growth of the usurper's property, like one who usurps a land from a man and sows a crop in it (Al-Bayan, 7/39-40).
Sixth view: the profit belongs to both, the owner and the usurper, who share it as in mudaraba; it is a narration from Imam Ahmad, and the choice of Shaykh al-Islam Ibn Taymiyya, who declares it the soundest of views.
Shaykh al-Islam Ibn Taymiyya (may Allah have mercy on him), after reporting the story of Umar (may Allah be pleased with him) with his two sons, says: Umar acted accordingly, and this is the best of the views disputed by the jurists in trading with a deposit and other property of others; for there are four views in the madhhab of Ahmad and others: does the profit go to the bayt al-mal by principle, or to the worker because ownership came to him through purchasing items upon the liability, or do the two give it as charity because it is foul, or do they share it as in mudaraba? This fourth is what Umar did (Majmu' al-Fatawa, 30/130; Mukhtasar al-Fatawa al-Misriyya, 379).
Shaykh al-Islam Ibn Taymiyya was also asked about usurped property in camels and other animals that had grown with the usurper, who then repented: how does he rid himself of this property, and is it unlawful or not?