Islamic Fiqh > Endowments (waqf) and property > Luqata: the lost item found > Second characteristic: keeping the animal for its owner and spending on it from one's own money
Contents
Updated on 25 September 2026 at 6:57 PM
This part belongs to the full section: All sections of this part.
This third and final part of the chapter on the luqata (lost-and-found property) completes the discussion of the characteristics of the endangered animal, then covers picking up other animals (camels, cattle, horses, mules, donkeys, birds), spending on the found animal, inanimate objects, the mount left in a place of ruin, and trading in the luqata. The positions of the Hanafi, Maliki, Shafi'i and Hanbali schools are set against each other, with classical references and hadith authentication.
Completion of the first characteristic: finding it inside a building or in a settled town.
"...charity, so that he may eat it" (reported by al-Bukhari (2299) and Muslim (1071)). The Prophet (peace and blessings be upon him) thereby only indicated that eating this animal is permitted although it is another's property, provided it is not charity; for such an animal is treated as a thing of no value, and the same applies to the sheep found in the wilderness, which has no value ("Sharh Sahih al-Bukhari", 6/550-551).
The jurists differ over the animal found inside a building or in a village: does the finder have the right to eat it or not?
The Malikis, the Shafi'is (in the sounder opinion) and Ibn al-Mundhir hold that if he finds it in a settled town he has no right to eat it, because it can be sold there, unlike the wilderness, where he may find no buyer, and moving it to a town is laborious.
The Hanbalis, and the Shafi'is in the opinion opposed to the sounder one, hold that there is no difference in allowing its consumption between finding it in the wilderness and finding it in a settled town: since eating it is permitted in the wilderness, it is likewise permitted in a town, like other foods. The Prophet (peace and blessings be upon him) said: "It is yours", without drawing a distinction. Its consumption is moreover justified by what we mentioned, namely being free of the need to feed it, and this freedom is even stronger in a settled town ("al-Mughni", 6/29).
Second characteristic: that the finder keep the animal for its owner, spend on it from his own money, and acquire ownership only after the announcement period, like any other luqata.
Still, if he wishes to spend on it counting on reimbursement of the expense from the owner's property, and has witnesses attest to that, may he recover his expense? The Hanbalis hold two transmissions.
Ibn Qudama said: the first: he is reimbursed. It is stated explicitly in the transmission of al-Marwadhi concerning the bird of manna that hatched among a people: he ruled that the chicks belonged to the owner of the bird. Likewise he recovers the fodder if he did not spend voluntarily. Umar ibn Abd al-Aziz ruled, in the case of a man who found a luqata, spent on it, and its owner then appeared, that the owner must pay him what he had spent; for he had spent on the luqata to preserve it, so it remained the owner's property, like the cost of preserving dates and grapes.
The second transmission: he recovers nothing, and that is the view of al-Sha'bi and al-Shafi'i. Al-Sha'bi disapproved of the ruling of Umar ibn Abd al-Aziz, because he had spent on another's property without his permission and could not recover it, just like one who would build another's house. As for grapes and dates, the owner parts with them: sometimes their drying and the expense incurred for it are more beneficial for the owner; for the expense does not recur, whereas spending on an animal recurs and may swallow up its value, so that selling it or eating it would be more beneficial. That is why the one who spends on the animal does not count on what he spent ("al-Mughni", 6/29).
Ibn al-Qayyim (may Allah have mercy on him) said in "Zad al-Ma'ad": "The sheep, if its owner does not appear, belongs to the one who picked it up. Some of our companions drew on this to hold that, for the sheep and the like of what may be picked up, the finder is given the choice between eating it at once while bearing its value, selling it and keeping its price, or leaving it and spending on it from his money. Does he recover that expense? Two views, for the Prophet (peace and blessings be upon him) made it his, unless its owner appears; and since he was given the choice among these three options, if its owner appears he hands it over to him, or hands over its value. The early ones among the companions of Ahmad held otherwise. Abu al-Husayn said: he may not dispose of it before the year has elapsed, in one transmission. He said: and if we say he takes what cannot manage on its own, such as the sheep, then he may not dispose of it, whether by eating or otherwise, in one transmission; Ibn Aqil said the same. Ahmad is stated explicitly, in the transmission of Abu Talib, concerning the sheep: it is announced for a year; if its owner comes, it is returned to him."
He continues: "The two Sharifs said the same: he does not own the sheep before the year elapses, in one transmission. Abu Bakr said: as for the stray of the flock, if he takes it he announces it for a year, and that is obligatory; when the year has passed without the owner being known, it is his. The first view is sounder in law and closer to the interest of the finder and the owner alike: announcing it for a year may force the owner to pay several times its value if we hold that the expense is reimbursed; if we hold there is no reimbursement, the finder bears that loss; and if we say he leaves it without picking it up, it will be for the wolf and it perishes, and the Law does not command the loss of property."
He continues: "It was objected that the preference given to this choice contradicts the texts of Ahmad, the statements of his companions, and the proof as well. As for contradicting Ahmad's texts, that was addressed above in the transmission of Abu Talib; Ahmad stated explicitly, in the same transmission, concerning a man in distress who finds a slaughtered sheep and a dead sheep: he eats of the dead one and not of the slaughtered one; the dead one was made lawful, while the slaughtered one has an owner who slaughtered it intending to announce it and who seeks its owner; if keeping the slaughtered one as it is is required, then keeping the live sheep is a fortiori. As for contradicting the companions' statements, that was covered above. As for contradicting the proof, it lies in the hadith of Abdallah ibn Amr:"
"O Messenger of Allah, what do you see concerning the stray of the flock?" He said: "It is yours, or your brother's, or the wolf's. Detain your brother's stray for him"; in one version: "Give your brother's stray back to him".Reported by Abdallah ibn Amr
He continues: "That forbids selling and slaughtering. It was answered: Ahmad's texts contain nothing beyond the announcement; whoever holds that he is given the choice between eating it, selling it and keeping it does not hold that the announcement lapses; rather he announces it all the same, and he announced its color and identifying marks, and if its owner appears he gives him the value. Ahmad's statement 'he announces it' is thus broader than announcing it while it is still alive, or announcing it while its amount is guaranteed in his liability, serving the interest of the owner and the finder alike; especially if he picked it up on a journey, for requiring its announcement for a year entails hardship and constraint with which the Law is not pleased, and leaving it unannounced exposes it to loss and perishing, which contradicts the command to take it and the information that, were he not to take it, it would be for the wolf. It is therefore inevitable: either selling it and keeping its price, or eating it while guaranteeing its value or its equivalent."
He concludes: "As for contradicting Ahmad's companions: the one who chose to allow the option is one of the greatest imams of the companions and the one compared with them, namely Abu Muhammad al-Maqdisi, may Allah sanctify his soul; he excelled in this choice most excellently. As for contradicting the proof: where in the legal proof is the prohibition of disposing of the sheep picked up in the wilderness or on a journey, by selling, eating, requiring its announcement for a year, and spending on it, with or without reimbursement? This is something no law could ever prescribe, let alone something a proof could establish. His statement (peace and blessings be upon him) 'Detain your brother's stray for him' is explicit in meaning that he must not keep it for himself to the other's exclusion, nor extinguish his right; so if selling it and keeping its price is better for him than announcing it for a year, spending on it, and making the owner pay several times its value, then detaining it and returning it to him is precisely through the option in which he has the advantage, and the hadith entails that by its manifest sense and strength. That is evident, and success is with Allah." ("Zad al-Ma'ad", 3/659-661)
The Shafi'is: if he wishes, he announces it and spends on it during the announcement period, then he becomes its owner after the announcement like any other luqata; if he wishes to recover his expense, he asks the ruler's permission; if he cannot find him, he has witnesses attest to it ("Rawdat al-Talibin", 4/212; "Mughni al-Muhtaj", 3/510; "al-Diba'j", 2/556).
The Hanafis: if he spends on it without the ruler's permission, he is acting gratuitously, for his authority does not cover the owner's liability; if he spends on the ruler's order, that expense becomes a debt upon the owner, for the judge has authority over the absent person's property to look after his interest, and this oversight may consist in the spending ("al-Hidaya", 2/176; "al-Ikhtiyar", 3/39; "al-Jawhara al-Nayyira", 4/193-194; "al-Lubab", 1/664).
Third characteristic: selling it, keeping its price, then acquiring the price. The Hanbalis and the Shafi'is, in the opinion opposed to the sounder one, add that he may attend to it himself, without the Imam's permission being required; for if eating it is permitted to him without permission, selling it is even more fitting.
The Shafi'is, in the sounder opinion: if he cannot find a ruler, he sells it on his own authority; if he finds one, the ruler's permission is indispensable.
Must he announce it in these situations? According to the Shafi'is and the Hanbalis, as Ibn Qudama chose: "Our companions did not prescribe an announcement for it in these situations, and that is Malik's view", on the strength of the hadith of Zayd ibn Khalid.
"Take it, it is nothing but yours, or your brother's, or the wolf's".Reported by al-Bukhari and Muslim
The Prophet (peace and blessings be upon him) did not command announcing it, unlike what he commanded for the luqata of gold and silver. The answer: it is a luqata exposed to peril, so announcing it is obligatory, like abundant food; he did not mention its announcement because he had already laid down the announcement for other luqatas, and that sufficed. And the permissibility of disposing of it before the year does not imply the abolition of the announcement, like abundant food ("al-Mughni", 6/30; "Kashshaf al-Qina'", 4/262).
The Shafi'is: if he sells it, he keeps its price, and the announcement concerns the luqata that was sold; the announcement is made in a place fit for announcing, then he acquires the price.
The choice among these characteristics is not a matter of mere inclination: he must do what is most beneficial, by analogy with what can be dried. This is when the animal comes from the wilderness; if it comes from a settled town, he has only the last two options, namely keeping it or selling it, not eating it, in the sounder opinion, as has passed ("Rawdat al-Talibin", 4/212; "Mughni al-Muhtaj", 3/510; "al-Diba'j", 2/556).
Outline of the Hanafi view on spending on the animal: the Hanafis say that picking up the sheep, the cow and the camel is permitted. If the finder spends on the animal without the ruler's permission, he is acting gratuitously, for his authority does not cover the owner's liability; if he spends on the ruler's order, it is a debt upon the owner, for the judge has authority over the absent person's property to look after his interest, and this oversight may consist in the spending.
When the matter is referred to him, the ruler examines it: if the animal has some use, he rents it out and spends on it from the rent, for that keeps the property under watch without imposing a debt. If it has no use and it is feared the spending will swallow up its value, he orders it sold and has the price kept, preserving the substance when keeping the form is impossible. If spending is best, the ruler permits it and makes the expense a debt upon its owner, for he has appointed a keeper, and the interest lies on both sides. They said: he only orders spending for two or three days, as he sees fit, in hope that its owner will appear; if he does not appear, he orders it sold, for continuing expenses are ruinous, and there is no interest in prolonged spending.
When the owner appears, the finder may refuse him until the expense is brought, for he revived his property with his spending, so that it is as if he derived the ownership from him, which resembles a sale; still closer is the case of the one who catches up a runaway, who may detain him to recover his fee, as mentioned. Then the debt of the expense does not lapse if the animal perishes in the finder's hands before the detention, and it lapses if it perishes afterwards, for the detention makes it like a pledge ("al-Hidaya", 2/176; "al-'Inaya", 8/209-210; "al-Ikhtiyar", 3/39; "al-Jawhara al-Nayyira", 4/193-194; "al-Lubab", 1/664).
Second type: picking up camels. The jurists differ over its ruling: is picking them up permitted without restriction, for keeping and for acquisition, as the Hanafis hold? Or permitted for keeping but not for acquisition, as the Shafi'is and the Hanbalis say, if the keeper is the Imam, and likewise for individuals in the correct opinion among the Shafi'is? Or forbidden without restriction, neither keeping nor acquisition, as the Malikis hold?
The Hanafis hold that picking up the camel is permitted for acquisition. The majority of jurists, the Malikis, Shafi'is and Hanbalis, in general terms (with details to come), hold that picking up camels is not permitted, and likewise every animal able to repel others by its strength, on the strength of the authentic hadith of the two Sahihs reported from Zayd ibn Khalid al-Juhani (may Allah be pleased with him): a man came to the Messenger of Allah (peace and blessings be upon him) and asked him about the luqata.
"Note the markings of its fleece and its horns, then announce it for a year; if its owner comes (return it), otherwise it is your affair". He said: "What of the stray of the flock?" He said: "It is yours, or your brother's, or the wolf's". He said: "What of the stray of the camels?" He said: "What have you to do with it? It has its water and its pasture: it comes down to the water and eats the foliage until its owner finds it".Reported by al-Bukhari (2297) and Muslim (1722)
The Prophet (peace and blessings be upon him) forbade interfering with it and commanded leaving it alone, which indicates that taking it is forbidden. The wisdom of this prohibition is that leaving the camels where they strayed is closer to the chance of their owner finding them than searching for them in people's encampments; and included in the meaning of camels is every animal able by its strength to repel the small beasts of prey ("Fath al-Bari", 5/70).
The detail of each school:
The Hanafis: picking up the camel is permitted like picking up the sheep, on the strength of what Imam Malik reported from Yahya ibn Sa'id, from Sulayman ibn Yasar, that Thabit ibn Dahhak al-Ansari informed him:
"He found a camel at al-Harra and hobbled it, then mentioned it to Umar ibn al-Khattab, and Umar ordered him to announce it three times. Thabit said to him: 'It has distracted me from my property.' Umar said to him: 'Leave it where you found it'".Reported by Malik in "al-Muwatta" (1447)
Umar ibn al-Khattab thus applied the ruling of the luqata to the stray animal. It is likewise reported from Abdallah ibn Omar in the same sense, as al-Tahawi reported from Hammam, from Nafi' and Ibn Sirin:
"A man asked Abdallah ibn Omar and said: 'I have come upon a she-camel.' He said: 'Announce it.' He said: 'I announced it, but no one came forward.' He said: 'Hand it over to the governor'".Reported by al-Tahawi in "Sharh Ma'ani al-Athar" (4/138)
The Hanafis also argue that it is a luqata whose loss is conceivable, so taking it and announcing it is recommended to preserve people's wealth, as with the sheep; and because if no fear of beasts of prey is entertained for it, there is no security against a treacherous hand, so taking it is recommended to preserve it. Its strength, which sometimes causes its loss, is also the cause of its protection against beasts of prey: the two offset each other, so it was annexed to the sheep.
Taking it in a time of fear of loss is the revival of a Muslim's wealth and becomes recommended; in the absence of fear, it is establishing an enclosure, and becomes permitted, as mentioned.
As for the hadith, it is not probative, because the intended meaning is that its owner is near it. Do you not see that he (peace and blessings be upon him) said: "until its owner finds it"? And that is only said when it is near, or when hope of finding it is established.
The proof of this is that when he was asked about the stray of the flock, he said: "Take it, it is yours, or your brother's, or the wolf's", inviting him to take it and calling attention to the intended meaning, namely fear of loss, which exists for camels too; the text concerning the flock is all the more fitting to apply, in substance, to camels and other beasts. But the Prophet (peace and blessings be upon him) distinguished between them in the wording of the reply, because of the wolf's attack on the flock if its owner does not find it, whether far or near; and likewise camels, for they usually defend themselves.
Or it is understood that in the Prophet's time (peace and blessings be upon him) the fear was of being devoured, not of people taking them; today corruption and treachery have spread, and religion and trustworthiness have grown scarce, so taking them is preferable; if he spends on the camel, its ruling will come in the following question ("Bada'i' al-Sana'i'", 6/200; "Mukhtasar Ikhtilaf al-Ulama'", 4/346-347; "al-Hidaya", 2/176; "al-'Inaya", 8/209-210; "al-Ikhtiyar", 3/39; "al-Jawhara al-Nayyira", 4/193-194; "al-Lubab", 1/664).
The Malikis, in the relied-upon view of their school: picking up camels is forbidden absolutely, whether they are found in a safe place or not, in a settled area or in the wilderness, whether their loss through hunger, thirst or beasts of prey is feared or not; such is the sound, relied-upon view, on the strength of the apparent sense of the Prophet's words (peace and blessings be upon him): "What have you to do with it? It has its water and its pasture: it comes down to the water and eats the foliage until its owner finds it" (reported by al-Bukhari (2297) and Muslim (1722)).
It is also said: if a treacherous hand is feared for it, it is taken and announced, or sold and its price set aside for its owner; that is the view of al-Kharshi, al-Dardir and others. It is also said: if beasts of prey are feared for it, it takes the ruling of the flock, and the finder may eat it. It is also said: rather it is taken in order to be announced, for driving it entails no hardship. The relied-upon view is the first.
If he oversteps and contravenes the obligation to leave them, taking the camels to settled areas in transgression, they are announced for a year, then, after a year's announcement, they are left at the place from which they were taken. Al-Sawi said: "I have learned that this applies in a time of justice and uprightness, not in a time like ours" ("Hashiyat al-Sawi", 9/272; see also "al-Taj wa-l-Iklil", 5/41; "Sharh Mukhtasar Khalil", 7/127; "al-Sharh al-Kabir" with "Hashiyat al-Dasuqi", 5/531; "Tahbir al-Mukhtasar", 5/41).
The Imam Abu al-Walid Ibn Rushd (may Allah have mercy on him) said in "al-Maqdimat al-Mumahhadat", after mentioning the prohibition of picking up camels: "It is said this applies at all times, which is the apparent meaning of Malik's words in 'al-Mudawwana' and 'al-'Utbiyya'; it is also said to be specific to a time of justice and the people's uprightness. As for a time when the people have become corrupt, the ruling is that the camels are taken and announced; if the owner is not known, they are sold and the price is kept; if he despairs of him, they are given as charity, as Uthman (may Allah be pleased with him) did when corruption entered among the people in his time; it is also reported from Malik in this sense" ("al-Maqdimat al-Mumahhadat", 2/418).
Al-Dasuqi said: "Ibn Abd al-Salam said: the essence of Malik's school is the absolute prohibition of picking them up, but it is not hidden that the general interest today requires what Uthman did, as one would say, in the question of holding the treasury agents (khufara') liable, such and such; that is why our master chose what the commentator said" ("Hashiyat al-Dasuqi", 5/531).
The Shafi'is and the Hanbalis stated explicitly that picking up the camel for acquisition is not permitted, but that it is permitted for keeping, for the Imam and for individuals in the correct opinion among the Shafi'is.
The Shafi'is: a domesticated animal that defends itself, such as the large camel, if found in the wilderness, it falls to the judge to pick it up to keep it for its owner, not to acquire it, for he has authority over the property of absentees. Umar (may Allah be pleased with him) had a reserved pasture (hima) in which he kept stray animals; likewise for individuals other than the judge, in the sound opinion stated explicitly in "al-Umm", lest a treacherous hand take it. The opposite view: no, for individuals have no authority over another's property.
The locus of disagreement is when the owner is not known; if he announces it and takes it to return it to him, the animal is in his hands a deposit, certainly, until it reaches him.
Picking up camels, and likewise every self-defending animal, in a time of security, from the wilderness, for acquisition, is forbidden, on the strength of the Prophet's prohibition (peace and blessings be upon him) concerning the stray of the camels, in the hadith of Zayd ibn Khalid: "What have you to do with it? It has its water and its pasture: it comes down to the water and eats the foliage until its owner finds it" (reported by al-Bukhari (2297) and Muslim (1722)).
If he takes it for acquisition, he is certainly liable for his transgression, and he is not freed of that liability by returning it to its place and withdrawing his hand from it, as with a stolen thing, unless he returns it to the ruler: then he is freed, in the correct opinion. In a time of plunder and corruption, however, taking it and picking it up for acquisition is permitted without restriction, in the wilderness and elsewhere.
This is when the camel is found free, without loads; if it is found bearing loads, and the loads cannot be taken without taking it, the apparent view is that in this case he takes it for acquisition, following the loads; for the heavy loads on it prevent it from reaching water and foliage, and from fleeing beasts of prey.
If he finds it in a village, a town, or a place close to that, the sounder opinion is the permissibility of picking it up for acquisition; for in settled areas it is lost through the extension of the treacherous hand toward it, unlike the wilderness, where people's paths do not reach; because it finds no one to provide for it there; and because the context of the hadith requires the wilderness, as shown by "Leave it to come down to the water and graze on the foliage". The opposite view: prohibition, as in the wilderness, on account of the hadith's generality.
What escapes together with the camel is another's property, like a trained dog that has been bought: picking it up is then lawful, and he has the exclusive right and the use of it after announcing it for a year.
All of this concerns the large camel; as for the small camel that does not defend itself, picking it up for acquisition is permitted ("Rawdat al-Talibin", 4/211; "al-Najm al-Wahhaj", 6/17, 19; "Mughni al-Muhtaj", 509; "al-Diba'j", 2/554-555; "Tuhfat al-Muhtaj", 7/614, 618; "Nihayat al-Muhtaj", 5/494, 496).
The Hanbalis: picking up the camel is not permitted, nor interfering with it, nor with whatever possesses a strength that defends itself, on the strength of the Messenger of Allah's words (peace and blessings be upon him) when he was asked about it: "What have you to do with it? It has its water and its pasture: it comes down to the water and eats the foliage until its owner finds it". The camel was barred from being taken because it has its pasture and its stored water, that is, the water it holds in its belly; and, given its great bulk, the wolf and the like cannot overpower it, so that it is generally safe from perishing.
A group of Banu Amir came to the Prophet (peace and blessings be upon him) and said: "O Messenger of Allah, we find on the road stray camels that wander about". The Prophet (peace and blessings be upon him) said: "A Muslim's stray property is a burning coal of the fire".Sahih hadith, reported by Ahmad (16357), Ibn Majah (2507) and Ibn Hibban in his "Sahih" (4888)
It is nevertheless permitted for the Imam to take the camel in order to keep it for its owner, not as a luqata; for he is charged with safeguarding the absentee's property, and taking it on that account serves the owner's interest, its preservation. The Imam is not required to announce it, for Umar (may Allah be pleased with him) did not announce stray animals.
Ibn Qudama (may Allah have mercy on him) said: "It belongs to the Imam or his deputy to take the stray animal for the purpose of keeping it for its owner, for Umar (may Allah be pleased with him) set aside a place called al-Naqi' for the horses of the fighters and the strays. And because the Imam is charged with safeguarding the absentee's property, and taking these is preserving them from perishing. He is not required to announce them, for Umar (may Allah be pleased with him) did not announce strays; and because if he announced them, whoever had a stray would come to the place of the strays; if he recognizes his, he brings the proof and takes it, and a mere description does not suffice to claim it, for it is visible among the people: someone outside its owner's household may know its marks, so the description is not proof of ownership; all the more since the stray was visible among the people while it was in its owner's hands, and he is not distinguished by knowing its marks; so that is not a proof, and the proof can be established, given that it is known to the people and that its close associates and neighbors know it belonged to him."
He adds: "If someone other than the Imam or his deputy takes it to keep it for its owner, that is not permitted to him and he becomes liable for it, for he has no authority over its owner, and that is the apparent view of al-Shafi'i's school. His companions have a view that he may take it to keep it, by analogy with the Imam; but that is not valid: the Prophet (peace and blessings be upon him) forbade taking it without distinguishing the one intending its keeping from the one intending its pickup; and the analogy with the Imam is not valid, for he has authority and this one does not. And if he finds it in a place where he fears for it, such as finding it in a land infested with lions that would most likely devour it if left there, or a horse from the land of war whose people one fears for it, or a place whose inhabitants lawfully seize Muslims' wealth, such as Wadi al-Taym, or a wilderness without water or pasture, then permitting its taking for keeping, without liability for the taker, is preferable; for he rescues it from perishing, like freeing it from drowning or fire. Once it is in his hand, he hands it over to the Imam's deputy and is freed of liability; he does not come to own it through the announcement, for the Law has not prescribed that for it."
Chapter: what the Imam has of stray animals: he has their straying attested and brands them as strays; if he has a reserved pasture where they can graze, he leaves them there if he sees fit; if he sees benefit in selling them and keeping the price, or if he has no reserved pasture, he sells them after identifying them and recording their marks, and keeps the price for their owner; for that preserves them better, since leaving them leads to their swallowing up the whole price ("al-Mughni", 6/31-33; "Sharh al-Zarkashi", 2/222; "Sharh Muntaha al-Iradat", 4/290; "al-Ifsah", 2/63).
1. Picking up cattle: the jurists differ: is picking them up permitted like the sheep, as the Hanafis hold? Or forbidden like the camel, as the Shafi'is and the Hanbalis hold? Or is the situation in which they are feared for distinguished from that in which they are not, as the Malikis hold?
The Hanafis: picking up cattle is permitted like picking up the sheep; for it is a luqata whose loss is conceivable, so taking it and announcing it is recommended to preserve people's wealth, as with the sheep; and because if no fear of beasts of prey is entertained for it, there is no security against a treacherous hand, so taking it is recommended to preserve it. Its strength, which sometimes causes its loss, is also the cause of its protection against beasts of prey: the two offset each other, so it was annexed to the sheep. Taking it in a time of fear of loss is the revival of a Muslim's wealth and becomes recommended; in the absence of fear, it is establishing an enclosure, and becomes permitted, as mentioned.
If the finder spends on it without the ruler's permission, he is acting gratuitously, for his authority does not cover the owner's liability; if he spends on the ruler's order, it is a debt upon the owner, for the judge has authority over the absent person's property to look after his interest, and this oversight may consist in the spending. When the matter is referred to him, the ruler examines it: if the animal has some use, he rents it out and spends on it from the rent, for that keeps the property under watch without imposing a debt. If it has no use and it is feared the spending will swallow up its value, he orders it sold and has the price kept, preserving the substance when keeping the form is impossible.
If spending is best, the ruler permits it and makes the expense a debt upon its owner, for he has appointed a keeper, and the interest lies on both sides. They said: he only orders spending for two or three days, as he sees fit, in hope that its owner will appear; if he does not appear, he orders it sold, for continuing expenses are ruinous, and there is no interest in prolonged spending. When the owner appears, the finder may refuse him until the expense is brought, for he revived his property with his spending, so that it is as if he derived the ownership from him, which resembles a sale; still closer is the case of the one who catches up a runaway, who may detain him to recover his fee, as mentioned. Then the debt of the expense does not lapse if the animal perishes in the finder's hands before the detention, and it lapses if it perishes afterwards, for the detention makes it like a pledge ("Bada'i' al-Sana'i'", 6/200; "Mukhtasar Ikhtilaf al-Ulama'", 4/346-347; "al-Hidaya", 2/176; "al-'Inaya", 8/209-210; "al-Ikhtiyar", 3/39; "al-Jawhara al-Nayyira", 4/193-194; "al-Lubab", 1/664).
The Shafi'is and the Hanbalis: picking up cattle is not permitted, and its ruling is that of picking up camels, on the strength of what is reported from Mundhir ibn Jarir: "I was with my father Jarir at al-Bawazij, in the Sawad; the cattle were grazing freely and he saw a cow he did not recognize; he said: 'What is this cow?' It was said: 'A cow that joined the herd.' He ordered it driven away until it disappeared, then said: 'I heard the Messenger of Allah (peace and blessings be upon him) say:'"
"None but a stray shelters a stray".The story is weak, its part attributed to the Prophet is sahih: reported by Abu Dawud (2720), Ibn Majah (2503) and Ahmad in "al-Musnad" (19230)
Jarir (may Allah be pleased with him) thus drove the cow away without taking it; because it repels the small beasts of prey and suffices, in the sacrificial animal and the offering, in place of seven (sheep), so that it resembles the camels; and because the principle is the prohibition of picking up, for it is another's property: the principle is thus the prohibition of taking it like any stray animal; taking is permitted only to preserve the property for its owner, and once it is safe, taking it is no longer permitted.
The Shafi'is: if he takes it for acquisition, he is certainly liable for his transgression, and he is not freed of the liability by returning it to its place and withdrawing his hand from it, as with a stolen thing, unless he returns it to the ruler: then he is freed, in the correct opinion. In a time of plunder and corruption, taking it and picking it up for acquisition is permitted without restriction, in the wilderness and elsewhere.
This is when the cow is found in the wilderness; if he finds it in a village, a town, or a place close to that, the sounder opinion is the permissibility of picking it up for acquisition; for in settled areas it is lost through the extension of the treacherous hand toward it, unlike the wilderness, where people's paths do not reach. The opposite view: prohibition, as in the wilderness, on account of the hadith's generality ("Rawdat al-Talibin", 4/211; "al-Najm al-Wahhaj", 6/17, 19; "Mughni al-Muhtaj", 509; "al-Diba'j", 2/554-555; "Tuhfat al-Muhtaj", 7/614, 618; "Nihayat al-Muhtaj", 5/494, 496).
The Hanbalis: it is permitted for the Imam to take it to keep it for its owner, not as a luqata; for he is charged with safeguarding the absentee's property, and taking it on that account serves its owner's interest, its preservation. The Imam is not required to announce it, for Umar (may Allah be pleased with him) did not announce strays ("al-Mughni", 6/31; "al-Kafi", 2/358; "Sharh al-Zarkashi", 2/222; "Sharh Muntaha al-Iradat", 4/290; "al-Ifsah", 2/63; "Matalib Uli al-Nuha", 4/220).
As for the Malikis, they made a distinction: a cow found in a place where beasts of prey, hunger or thirst are feared for it takes the ruling of the wilderness sheep: the finder may eat it, without liability, like the sheep; likewise if people are feared for it in the wilderness and driving it to settled areas is hard: he may eat it without liability. If driving it to settled areas is easy, he does not eat it but announces it; if he eats it, he guarantees its value to its owner once he knows him.
Otherwise: if the cow is in a safe place in the wilderness or elsewhere, it is left alone and not interfered with; it is left in its place until its owner comes, like the camels; if he takes it, it is announced as if it were in a settled area; if he eats it, he is liable.
Ibn al-Qasim said: "The stray of cattle, if it is in a place where beasts of prey and wolves are feared for it, takes the ruling of the flock; if beasts of prey and wolves are not feared for it, it takes that of the camels" ("al-Taj wa-l-Iklil", 5/41; "Sharh Mukhtasar Khalil", 7/127; "al-Sharh al-Kabir" with "Hashiyat al-Dasuqi", 5/531; "Tahbir al-Mukhtasar", 5/41; "Hashiyat al-Sawi", 9/272; "al-Fawakih al-Dawani", 2/273).