Islamic Fiqh > Endowments (waqf) and property > Luqata: the lost item found > Picking up horses and mules
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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.
2. Picking up horses and mules: the jurists differ: is picking them up permitted like the sheep, or forbidden like the camel?
The Shafi'is and the Hanbalis: their ruling is that of the camel and the cow, and picking them up is not permitted, according to the detail laid down by them in the preceding question ("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; "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).
The Hanafis: picking them up is permitted like picking up the sheep; for it is a luqata whose loss is conceivable, so taking them and announcing them is recommended to preserve people's wealth, as with the sheep; and because if no fear of beasts of prey is entertained for them, there is no security against a treacherous hand, so taking them is recommended to preserve them. Taking them 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. The finder's spending follows the detail laid down by them for camels and cattle ("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: horses and mules, if nothing is feared for them, take the status of camels and picking them up is not permitted; if they are feared for, he takes them ("al-Fawakih al-Dawani", 2/273; "al-Ifsah" of Ibn Hubayra, 2/63).
3. Picking up domestic donkeys: the jurists differ: is picking them up permitted or forbidden?
The Shafi'is and the Hanbalis, in the school: picking them up is not permitted, like the camel, the mules and the horses, according to the detail laid down by them; for they have large bodies, which make them resemble the mules and the horses, and they belong to the beasts of burden, which make them resemble the mules ("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; "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).
The Hanafis and Ibn Qudama among the Hanbalis: picking them up is permitted, like the sheep, according to the detail laid down by the Hanafis ("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).
Ibn Qudama (may Allah have mercy on him) said: "The preferable course is to annex them to the sheep; for the Prophet (peace and blessings be upon him) justified the camels' case by their having their pasture and their stored water, that is, the great patience with which they endure thirst, owing to the abundance of water they hold in their bellies, and their strength to reach water. And he permitted the stray of the flock on the ground that it is exposed to the wolf's taking it, by his words: 'It is yours, or your brother's, or the wolf's'. The donkeys are equal to the sheep in the reason for the ruling, for they do not repel the wolf, and differ from the camels in their reason, for they have no patience in thirst: hence they are given as a proverb for scant patience, and it is said: 'Nothing remains of his days but a donkey's thirst'."
He adds: "Annexing a thing to what it equals in the reason for the ruling and differs from in form is preferable to annexing it to what it resembles in form and differs from in the reason. As for the non-animal: whatever preserves itself, such as millstones, large pieces of wood and copper cauldrons, takes the status of the camels in the prohibition of taking it, indeed more fittingly; for camels are in general exposed to perishing, whether by the lion or by hunger, thirst or something else, unlike these; and because these scarcely ever stray from their owner or leave their place, unlike the animal: if taking the animal is forbidden, taking these is forbidden a fortiori" ("al-Mughni", 6/32).
The Malikis: donkeys, if nothing is feared for them, take the status of camels and picking them up is not permitted; if they are feared for, he takes them ("al-Fawakih al-Dawani", 2/273; "al-Ifsah" of Ibn Hubayra, 2/63).
4. Picking up birds: the jurists differ: is picking up the bird permitted like the sheep, or forbidden like the camel, because it defends itself by its flight?
The Hanafis: picking up birds and other animals is permitted; for it is property whose loss is conceivable, so taking it is recommended in order to return it to its owner, preserving people's wealth ("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 birds is not permitted, like picking up the camel, according to the full detail laid down by them concerning the camel ("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; "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).
The Malikis: picking up birds is permitted when a treacherous hand is feared ("al-Fawakih al-Dawani", 2/273).
The vizier Ibn Hubayra (may Allah have mercy on him) said: "They differed: is picking up camels, horses, mules, cattle, donkeys and birds permitted? Al-Shafi'i and Ahmad said: picking them up is not permitted; but al-Shafi'i distinguished their young from their adults and said: picking up the young is permitted". The vizier (may Allah have mercy on him) said: "The apparent meaning is that the Messenger of Allah's words (peace and blessings be upon him) concern only their adults, those that stray".
Abu Hanifa said: it is permitted. Malik said: as for camels, they are not to be interfered with in any way; as for cattle, if beasts of prey are feared for them, they are taken; otherwise they take the status of camels; likewise horses, mules and donkeys; as for birds, we have found nothing on it.
The vizier said: "As for birds, my view is that the dove belongs to them, and whatever frequents its nests". As for the Hanafis, picking up all other animals is permitted in their view; for it is property whose loss is conceivable, so taking it is recommended in order to return it to its owner, preserving people's wealth ("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 jurists agree that a finder who spends, gratuitously, on a luqata needing expense has no recourse against its owner. They differ, however, if he spends without acting gratuitously: does he recover the expense, or is the ruler's permission or the summoning of witnesses required?
The Malikis: the finder who spends on the luqata an expense of his own initiative (whether all of it or part of it, as when he rents it out and the rent falls short of its expense and the finder makes up the remainder), and its owner then comes: the latter may not take it for free, but is given the choice between two things. The first: to take the luqata while paying the finder the equivalent of his expense, for he discharged an obligation for him, whether he spent with the ruler's permission or without. The second: to leave the luqata with the one who picked it up for the expense he incurred on it, for the expense is in the luqata itself, not in its owner's liability.
If he then wishes to take it while paying the equivalent of the expense, that is not open to him, as Ashhab said, for he made it the finder's property with his own consent; and likewise the reverse: if the finder pays him the expense, then wishes to hand it back to him and recover the expense, that is not open to him either.
If a debt appears against its owner, the finder with his expense is given priority over the other creditors, like a pledge, until he recovers his expense ("al-Taj wa-l-Iklil", 5/42; "Sharh Mukhtasar Khalil", 7/128; "al-Sharh al-Kabir" with "Hashiyat al-Dasuqi", 5/532; "Tahbir al-Mukhtasar", 5/42; "Hashiyat al-Sawi", 9/274-275).
Ibn Abd al-Barr (may Allah have mercy on him) said: "Malik said, as reported by Ibn al-Qasim from him: if the finder spends on beasts of burden, camels and the like, he may seek reimbursement from their owner for the expense, whether he spent by the ruler's order or without. He said: he may detain by the expense what he spent on, and he has the greater right to it, like a pledge. He said: he seeks from the luqata's owner the hire of transporting it" ("al-Tamhid", 3/128; "Tafsir al-Qurtubi", 9/137).
It is stated in "al-Mudawwana al-Kubra": "I said: if its owner comes and he has spent on these beasts, is the expense owed by him? Malik said: yes, its owner owes what this one spent on it, and he does not take it back until he gives him what he spent on it. Malik said, concerning camels whose owner acknowledged his after he had let them go and had spent on them: he is entitled to what he spent if the owner wants to take them back; if he wants to let them go, he owes nothing. I said: likewise cattle and sheep, if he picks them up in the open plains or elsewhere and spends on them, and their owner acknowledges them: is he entitled to the expense, according to Malik? Malik said in 'al-Mata'': a man picks it up and carries it to a place to announce it, and its owner recognizes it. Malik said: it belongs to its owner, and he pays him the hire of carrying it; likewise the sheep and the cattle: if a man picks them up and spends on them, and their owner comes, the latter pays what the finder spent, unless its owner prefers to let it go. I said: consider what this finder spent on these things he picked up without the ruler's order: is that owed by their owner, according to Malik, if he wants to take them? He said: yes: if its owner wants to take it, he may not take it until he pays this one what he spent on it, by the ruler's order or without the ruler's order" ("al-Mudawwana al-Kubra", 15/176).
The majority of jurists, the Hanafis, Shafi'is and Hanbalis: if he spends on the luqata, he has no right to reimbursement, unless he asked the ruler's permission. The Hanafis: if he spends 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 its 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; 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. If spending is best, the ruler permits it and makes the expense a debt upon its owner, for he has appointed a keeper. They said: he only orders spending for two or three days, in hope that its owner will appear; if he does not appear, he orders it sold. When the owner appears, the finder may refuse him until the expense is brought, and 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; "Majma' al-Damanat", 1/446).
The Shafi'is: if he spends on the luqata during the announcement period and wishes to be reimbursed, 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).
Ibn Abd al-Barr (may Allah have mercy on him) said: "Al-Shafi'i said, as reported by al-Rabi' in (the book of) al-Buwayti: whoever takes stray animals and spends on them is acting gratuitously; if he wishes to seek reimbursement from their owner, let him go to the ruler, who will set the expense for him and charge another with collecting that expense from him and spending it on them; the ruler may not permit him to spend on them for more than a day or two, and beyond that he orders them sold. Al-Muzani reported from him: when the ruler orders the expense, it is a debt, and what he claims on his own is not admitted from him if he acted deliberately. Al-Muzani said: his word is not admitted and he is not trustworthy" ("al-Tamhid", 3/128).
Among the Hanbalis: if he wishes to spend on the luqata counting on reimbursement of the expense from its owner's property, and has witnesses attest to it, does he recover the expense? Two transmissions. Ibn Qudama said: the first: he is reimbursed, 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; he also recovers the fodder if he was not acting voluntarily; Umar ibn Abd al-Aziz ruled that one who finds a luqata, spends on it, and its owner comes, must be reimbursed for what he spent, for he spent on the luqata to preserve it, so it remained its owner's property, like the cost of dates and grapes. The second transmission: he recovers nothing, the view of al-Sha'bi and al-Shafi'i; al-Sha'bi disapproved of Umar ibn Abd al-Aziz's ruling, for he had spent on another's property without his permission and was not reimbursed, like one who would build his house; and the owner parts with the grapes and dates, for sometimes their drying and the spending on it are more beneficial to its owner: the expense does not recur, whereas spending on the animal recurs and may swallow up its value, so that selling it or eating it would be more beneficial; that is why the spender does not count on what he spent ("al-Mughni", 6/29).
The Imam Ibn Rushd (may Allah have mercy on him) said: "They differed: is the finder reimbursed for what he spent on the luqata by its owner, or not? The majority said: the finder of the luqata acts gratuitously in keeping it, and recovers nothing of that from the luqata's owner. The Kufans said: he does not recover what he spent, unless the expense was made with the ruler's permission. This question belongs to the rulings of picking up" ("Bidayat al-Mujtahid", 2/232).
Second section: the jamad (inanimate object). The jurists agree that picking up the non-animal is permitted, that is, the jamad such as coins, clothes, food and the like; their ruling, already set out in detail, is that announcing them for a year is obligatory, then he takes ownership of them after the year; and if the owner comes, he hands them over to him, according to most jurists; all of this has been explained in detail.
Picking up what spoils quickly, such as food: the jurists stated explicitly that the finder of what spoils quickly, food or the like, announces it in the very place where he found it; if he fears it will spoil, he eats it or sells it and keeps its price.
The Hanafis: if the luqata is something that does not keep, such as foods prepared for eating, meat, milk, fresh fruit and the like, he announces it until he fears its spoiling, then gives it as charity for fear of its spoiling; in that there is benefit for its owner, in this world and the next. He may also benefit from it if he is poor. If its owner comes after the charity, he has the choice: if he wishes, he lets the charity stand and has its reward; if he wishes, he makes the finder liable; if he wishes, he makes the poor man liable if it perishes in his hand, and while it exists, he takes it back.
The judge Abu Ja'far said: "If he gives it as charity with the judge's permission, he may not make it a liability". Whichever of the two, the finder or the poor man, made it a liability, neither of them seeks anything from its owner, as mentioned by Qadi Khan and others ("Majma' al-Damanat", 465-466; "al-Hidaya", 3/91-93; "al-Ikhtiyar", 3/38; "Tabyin al-Haqa'iq", 3/304; "al-Lubab", 1/663).
As for the Malikis, it is reported in "al-Mudawwana" (concerning the luqata of food): "I said: what if I pick up food that does not keep in people's hands? Malik said: giving it as charity seems better to me. I said: what if it is something of little value? He said: the worthless thing like the valuable one: giving it as charity seems better to Malik. I said: if he eats it and its owner comes, or gives it as charity, does he make it good? He said: he does not make it good, like Malik's statement about the sheep found in the wastelands of the earth, except if he finds it outside the wastelands. I said: did Malik set a term for announcing food whose spoiling was feared? He said: Malik did not set a term" ("al-Mudawwana al-Kubra", 15/175).
The Shafi'is and the Hanbalis: he is given the choice between two options if its spoiling is swift and it cannot be dried; otherwise he dries it.
The Shafi'is: if he picks up what spoils quickly, such as meat porridge and grapes that cannot be dried into raisins, fresh dates that cannot ripen into dried dates, likewise fresh vegetables and grilled food, the taker is given the choice between two options. If he wishes, he sells it on his own authority if he cannot find a ruler, and with his permission if he finds one, and announces the sale after making it, to acquire its price after the announcement; he does not announce the price. If he wishes, he takes it at once, eats it and bears its value, whether he found it in the wilderness or in settled areas; for it is exposed to perishing, so he is given the choice in it, like the sheep. Selling is preferable by consensus.
It is said: if he finds it in settled areas, selling is obligatory, for it is easy there, and eating is therefore not permitted in this case: selling becomes required. If he eats it, announcing it in settled areas becomes obligatory afterwards; if it is in the wilderness, apparently it is not obligatory.
If what spoils quickly can be kept by a suitable treatment, such as fresh dates that can be dried or milk that turns into curd, then, if the advantage lies in selling it, it is sold in its entirety with the ruler's permission if he finds him, otherwise on his own authority; or if the advantage lies in drying it, the finder, for its owner or for another, dries it; for it is another's property and its interest is pursued like the orphan's guardian; otherwise part of it is sold to the amount equivalent to the drying costs, to dry the rest, seeking the greater benefit ("al-Najm al-Wahhaj", 6/24; "Mughni al-Muhtaj", 3/511-512; "al-Diba'j", 2/557).
The Hanbalis: what one fears will spoil if it remains, such as a cooked dish, a melon, fruit, vegetables and the like: the finder must do what is most beneficial: eating it while bearing its value, or selling it, even without a ruler's permission, and keeping its price; for in each of the two he preserves the property's value for its owner, like the animal. Keeping it is not permitted, for it spoils: if the finder leaves what he fears will spoil without eating or selling it until it perishes, he is liable for it, for he was negligent in its keeping: he is therefore like a deposit.
If they are equal in his estimation, he is given the choice: whatever he does is permitted.
What has been mentioned, selling and eating, has been made conditional by a group upon announcing it for as long as its spoiling is feared; then he may choose between eating it and selling it. When he wants to sell it or eat it, he preserves its identifying marks, then announces it publicly, as will be mentioned. If the price perishes before he takes ownership of it, without negligence, or decreases, or the thing perishes or decreases without negligence, no liability rests on him; if it perishes or decreases through his negligence, or the luqata perishes through his negligence, he is liable for it; likewise if it perishes or decreases after he takes ownership of it.
If it can be dried, like fresh dates, the finder does what seems to him most beneficial for its owner: eating it while bearing its value, selling it while keeping the price, or drying it; for it is a deposit in his hand, and doing the most beneficial thing with a deposit is obligatory. The costs of drying, if needed, are covered by selling part of the luqata to dry the rest, for that is part of its interest; if he spends from his own property, he is reimbursed in the sounder opinion, as stated in "al-Mubdi'"; if selling it is impossible and it cannot be dried, eating it becomes obligatory ("al-Sharh al-Kabir", 6/340-341; "al-Mubdi'", 5/280; "al-Insaf", 6/409, 411; "Kashshaf al-Qina'", 4/262-263; "Sharh Muntaha al-Iradat", 4/295; "Manar al-Sabil", 2/304).
The ruling on one who leaves a mount in a place of ruin: the jurists differ over one who leaves a mount in a place of ruin, then a man takes it, feeds it, waters it and restores it: does it become his property thereby?
The Hanbalis: one who leaves a mount in a place of ruin or in a wilderness because of its inability to walk, or whose owner cannot provide its fodder, finding nothing to feed it, and leaves it, then a man takes it, feeds it, waters it and restores it: it becomes his property, on the strength of what Abu Dawud and others reported from al-Sha'bi that the Messenger of Allah (peace and blessings be upon him) said:
"Whoever finds a mount whose people can no longer feed it and have let it wander, and he takes it and brings it back to life, it is his". Ubaydullah, the transmitter of the hadith from al-Sha'bi, said: "I asked: from whom? He said: from more than one Companion of the Prophet (peace and blessings be upon him)". And in one version: "Whoever leaves a mount in a place of ruin, and a man brings it back to life, it belongs to the one who brought it back to life".Hasan hadith, reported by Abu Dawud (3524, 3525) and al-Bayhaqi in "al-Kubra" (11893, 11894)
Because declaring it his revives it and saves it from perishing, preserves property from loss, and upholds the sanctity of the animal; and the view that it does not become property entails the loss of all that with no interest in return; and because it was abandoned and cast off through inability to keep it: the taker becomes its owner, like what falls from the ear of grain and everything people cast off with distaste ("al-Mughni", 6/33; "al-Kafi", 2/362; "al-Furu'", 4/426; "al-Mubdi'", 5/276; "Kashshaf al-Qina'", 4/256; "Sharh Muntaha al-Iradat", 4/289; "Matalib Uli al-Nuha", 4/218; "Manar al-Sabil", 2/297).
The Malikis: one who leaves a mount in a wilderness or an abandoned place, then a man takes it: he returns it to its owner; if he has spent anything on it, he takes that from him. Is he entitled to a fee? Two versions: according to Ibn al-Qasim from Malik, he has no fee from him, but he has the expense; according to Ibn Wahb from Malik, he takes it, and his fee and what he spent on it are paid to him.
Wahb reported from Malik, concerning one who leaves a mount grown too weak in an abandoned place, neither eating nor drinking: whoever takes it and brings it back to life takes it, and his fee and what he spent on it are paid to him.
The Hanafis and the Shafi'is: one who leaves a mount and lets it wander in a wilderness or an abandoned place, or whose owner left it because he could not buy fodder, then a man passes by, takes it, brings it back to life and spends on it until it returns to its state: it remains its owner's property, and the spender has no recourse against him for what he spent; for the jurists do not differ that, if one despairs of his slave's life and abandons him, then finds him with another, he is more entitled to take him back; and it is the same for other animals ("Mukhtasar Ikhtilaf al-Ulama'", 3/445; "Hashiyat Ibn Abidin", 2/573; "al-Hawi al-Kabir", 8/27; "al-Najm al-Wahhaj", 6/22; "al-Fatawa al-Fiqhiyya al-Kubra", 3/373-374).
The Imam Muhammad ibn al-Hasan al-Shaybani (may Allah have mercy on him) said: "It is mentioned from al-Sha'bi that the Messenger of Allah (peace and blessings be upon him) said: 'Whoever leaves a mount in a place of ruin, it belongs to the one who brings it back to life'. On the apparent sense of this hadith, some scholars said: if a fighter leaves his mount in a rout and another Muslim takes it and brings it out, he is more entitled to keep it; for the first abandoned it with distaste, and he owned it only because he kept it in his hand; when that ceased, it fell to whoever took it: it belongs to the one who took it and revived it. We do not adopt that, for it is the letting loose (tasyib) of the age of ignorance, which the Law repudiated: Allah, the Most High, said:"
"Allah has not instituted the bahira, nor the sa'iba..."
Surah al-Ma'idah (The Table Spread), 103
He continues: "Letting animals loose is not like manumitting slaves: by manumission, the quality of ownership is altered and ownership vanishes; by letting loose, the quality of ownership of animals is not removed: remaining owned, it belongs to its owner, and the sanctity of the property prevails through the sanctity of the owner, so that no one becomes its owner by taking. It is reported from al-Sha'bi that he said: its owner takes it, and nothing of the expense is owed to the one who revived it if he spent from his own property. It thus becomes clear that the first hadith is erroneous: al-Sha'bi is the one who reported it, and he would not give a ruling contrary to what he reported from the Prophet (peace and blessings be upon him); moreover, an isolated hadith like this is not acted upon, for it contradicts the principles: it is preferable to return to the formulation whose acceptance is agreed upon, namely his words (peace and blessings be upon him): 'It is not lawful for a Muslim's property except with his willing consent', and his words (peace be upon him): 'Whoever finds the source of his property is more entitled to it', which proves the soundness of what we say. Umar ibn Abd al-Aziz (may Allah have mercy on him) used to say: its owner takes it, and he repays the spender what he spent of his property. Al-Sha'bi said: nothing of the expense is owed if he spent without his permission. We take al-Sha'bi's view, for he spends gratuitously on another's property without his permission, seeking to bind a debt upon him in his own favor; and no one holds this authority over another. As for Umar ibn Abd al-Aziz, he used to say: the indication of the owner's permission to spend is known in outward appearance; for had he been able to bring it out, he would have spent on it from his own property; when he is unable, he calls upon whoever has the strength, content that it be spent on from his property, and the indication of permission is like explicit permission. But we say: this help and consent may be on his part as gratuitous spending, or as reimbursement of what is spent; and the probable is no proof for binding a debt upon his liability: it is like the depositary who spends on the deposit, in the owner's absence, without the judge's order: he does not seek reimbursement from its owner for that; and it is the same here. Success is with Allah." ("Sharh Kitab al-Siyar al-Kabir", 1/212-213)
Ibn Abidin (may Allah have mercy on him) said, citing "al-Tatarkhaniyya": "One who leaves a mount of no value from emaciation, without having declared it abandoned at the time of leaving it, then a man takes it and restores it: analogy would make it the taker's, like discarded pomegranate peels; and by istihsan it belongs to its owner. Muhammad said: for were we to allow this in the animal, we would allow it for a slave girl thrown to the ground, sick and worthless: a man would take her and spend on her, then own her without purchase, gift, inheritance or charity, or manumit her without ever owning her; and that is an ugly affair. End (summary)." It follows that the non-animal, like the peels, is discarded with implicit permission, without declaration, and the taker becomes its owner, unlike the animal, which only becomes owned by an explicit declaration of abandonment ("Hashiyat Ibn Abidin", 2/573).
The Imam al-Mawardi (may Allah have mercy on him) said: "If a man leaves his mount or his camel exhausted in the wilderness, unable to continue the journey, its owner unable to carry it or stay with it, then a man passes by and revives it by staying with it and caring for it until it returns to its state of travel and work, the jurists have differed over its ruling. It is reported from al-Layth ibn Sa'd and al-Hasan ibn Salih that it belongs to the taker and reviver, to the exclusion of the one who left it, unless the one who left it left it to return to it: then the one who left it is more entitled."
Ahmad ibn Hanbal and Ishaq ibn Rahawayh said: the taker and reviver is more entitled than the one who left it, in every case, whether he left it to return or not. Malik said: it remains the property of the one who left it, to the exclusion of the taker, but the latter has recourse for what he spent. Al-Shafi'i's school (may Allah have mercy on him): it remains the property of the one who left it, and the finder has no recourse for his expense, on the strength of his words (peace and blessings be upon him): "It is not lawful for a Muslim's property except with his willing consent"; and because if he treated a slave on the verge of death from illness, indeed if he rescued property from drowning or fire, he would not become its owner: and so it is with the beast.
It is reported from al-Hasan al-Basri that whoever brings out property swallowed by the sea becomes its owner at its owner's expense; but that is an isolated view, repelled by the hadith and the consensus. Rather, if he finds in the sea a piece of amber in the place where its finding is permitted, it is a luqata for the one who finds it on land, for we know that the hand's control preceded him; unless it is on the shore after the water has receded from it: then it belongs to the finder, for the water may have cast it there as it receded. Likewise, if he catches a fish from the sea and finds in its belly a piece of amber, it belongs to the fisherman if it is a sea in which amber may be found; as for rivers and what is not of the seas, amber there is a luqata; likewise the ruby and the coral, unless worked or pierced, in which case they are a luqata. As for the pearl, it is only found in the sea within its shell: if he finds it within, it is a property for the finder; if he finds it outside its shell, it is a luqata ("al-Hawi al-Kabir", 8/27; see "al-Najm al-Wahhaj", 6/22; "al-Fatawa al-Fiqhiyya al-Kubra", 3/374).
The principle of the luqata, as has passed, is that it is a deposit in the finder's hand: he may not dispose of it during the year, by the jurists' agreement, like the deposit; for if he disposes of it, he exposes it to danger and loss. It is therefore not permitted for one who finds a luqata of property to trade with it during the year of announcement, nor before it enters his ownership after the announcement.
It is stated in "al-Mudawwana al-Kubra": "Trading in the luqata and the loan". I said: a free man who finds a luqata, or a mukatab, or a slave trader: may he trade with it during the year in which he announces it, according to Malik? Malik said, concerning the deposit: one does not trade with it; I therefore hold the luqata like the deposit during the year in which he announces it: one does not trade with it, nor after the year either; for Malik said: "When the year has passed, I do not permit him to eat it" ("al-Mudawwana al-Kubra", 15/175).
It follows that if he trades with the luqata during the year of announcement, it enters his liability: if any loss or perishing results, even without transgression on his part, he guarantees it; for by using it the transgression has occurred, so he guarantees it.
Here ends the Book of the luqit (the finder of lost property).