Islamic Fiqh > Endowments (waqf) and property > Luqata: the lost item found > The owner appearing and the elapsed year
Contents
Updated on 25 September 2026 at 6:57 PM
This continuation of the chapter on the luqata (lost and found property) covers the fifth question: who handles the public announcement and what fee is due for it. It then covers what happens to the luqata when its owner comes forward, during the year of announcement or after it, with evidence or with a mere description, alone or with another. Next come the case of two finders, the luqata of the Haram and of the pilgrim, the persons whose picking it up is valid or not, and finally the stray animal, the sheep, with the comparison of the four schools.
To that end, he repeats the announcement according to custom: our companions said that he announces it first every day, then every week, then more than that (Sharh Sahih Muslim, 12/22). The place of the announcement, as Ibn Qudama (may Allah have mercy on him) said, is the markets and the doors of the mosques and the great mosques at the time when people gather there, such as after the prayers in the mosques, and likewise the places where people assemble. The purpose is to spread the news and expose the item so that its owner notices it; therefore one must seek out the places where people gather.
One does not look for it inside the mosque, for the mosque was not built for that. Abu Hurayra reported that the Prophet (peace and blessings be upon him) said:
Whoever hears a man announcing a lost item in the mosque should say to him: may Allah not return it to you, for the mosques were not built for that.Reported by Muslim (568)
Umar commanded the finder of a luqata to announce it at the door of the mosque (al-Mughni, 6/5; al-Kafi, 2/353).
The fifth question: who takes charge of announcing the luqata, and what is the fee for the announcement? The majority of jurists affirmed that a person is not obliged to carry out the announcement himself: he may delegate the announcement to another. They also agreed that if the finder volunteers to announce it, he has no recourse against the owner. They disagreed when the luqata requires an expense for its announcement and he did not volunteer: is the fee borne by the owner of the luqata or by the finder? Or is it on him if he took it intending to own it, and on the owner if he took it to keep it safe?
The Malikis said: if the finder is a man of honourable standing, he may announce it himself or through someone whose trustworthiness he guarantees; if he falls short of that in trustworthiness, he hires someone to announce it, paid from the luqata itself. If he hands it over to someone he trusts and it perishes, there is no liability on him.
But if someone of his own level takes care of the announcement himself, he does not hand it over to an announcer nor hire the announcer from it: he hires the announcer from his own property, for by picking it up he is like one who has bound himself to announce it. If he hires someone and it perishes through that, he guarantees it: this is what Khalil established, followed by Ibn al-Hajib, who followed Ibn Shas.
The literal wording of al-Lakhmi's report from Ibn Shaban indicates that the finder may hand it over to one who announces it for a fee taken from it, even though he may attend to announcing it himself when he is not obliged to do so. Al-Mawaq said: al-Lakhmi stated that he has the choice between four options: to announce it himself, to hand it to the ruler if he is just and not too occupied to announce it, to hand it to a trustworthy man who stands in his place in this regard, or to hire someone to announce it. Ibn Shaban allowed hiring the announcer from it when he is not bound to announce it himself and someone of his level would not take on such a task.
Ibn Yunus said: Ibn al-Qasim stated that if the finder hands the luqata to another to announce it and it perishes, nothing is due from the finder; this is also the view of Ibn Nafi' from Malik. Ibn Kanana said: the same applies if he hands it to him to dispose of it as he wishes. Ibn Yunus added that this differs from the deposit, whose owner accepts only his depository's keeping, so that it is not handed to another except for an excuse (al-Taj wa-l-Iklil, 5/37; Sharh Mukhtasar Khalil, 7/125; al-Sharh al-kabir with Hashiyat al-Dasuqi, 5/527-528; al-Sharh al-saghir, 9/259; Tahbir al-Mukhtasar, 5/37).
Al-'Imrani the Shafi'i (may Allah have mercy on him) said: as for the one who handles the announcement, the finder announces it himself; if a man volunteers to announce it, that is permitted; if he finds no volunteer, he must hire, from his own property, someone to announce it, for this is a cause of acquisition, the acquisition belongs to him, and the fee is therefore on him. If he hands it to the judge so that the judge announces it on his behalf, or to a trustee by order of the judge, that is permitted; if he hands it to a trustee to announce it on his behalf without the judge's order, two views exist, related by al-Mas'udi.
The first: that is not allowed for him, for it is a trust in his hand, and he may not remove it without the permission of the owner and the judge, absent necessity, like the ordinary deposit. The second: it is allowed for him, for the Lawgiver made him the custodian of this luqata, so that it becomes like the father's disposal of his son's property (al-Bayan, 7/529-530).
The Shafi'is said: the finder takes the luqata either to keep it for its owner indefinitely, or to take ownership of it. If he took it to keep it, the expense of the announcement is not on him: the judge orders it charged to the public treasury, or refers the matter to the judge to pay its fee from the treasury, or borrows on the owner, or orders the finder to advance it with recourse, as in the case of camels that run away, or has part of it sold; for the purpose of taking it is to safeguard the owner's interest. All of this according to the view that the announcement is obligatory when he took it to keep it.
According to the other view, that the announcement is not obligatory on him when he took it to keep it, the finder is a volunteer if he announces it, and the judge may order him to spend from his own property with recourse against the owner, or have part of it sold if he sees fit, as with strayed camels. If he took it to own it and the acquisition took place, the expense of the announcement is definitively on the finder.
If its owner appears, is the expense on the finder because of his intention to own it, or on the owner because the benefit returns to him? Two views exist; the stronger is the first: it is on the finder. If he first intended safekeeping and then ownership, the two views remain (Rawdat al-Talibin, 4/217; Asna al-Matalib, 2/492; al-Najm al-Wahhaj, 6/33; Mughni al-Muhtaj, 3/515-516; al-Dibaj, 2/562).
Imam Ibn Qudama (may Allah have mercy on him) said: the finder may carry out the announcement himself, and he may delegate it; if he finds a volunteer, well and good; otherwise, if a fee is needed, it is on the finder. This is the view of al-Shafi'i and the people of reasoned opinion. Abu al-Khattab held that if he intended safekeeping for its owner without ownership, the fee goes back to the owner, for it is part of the expense of delivering it to its owner, like the fee for storing, pasturing and drying it. Ibn 'Aqil said the same for what is not acquired by the announcement.
We (the Hanbalis) hold that this fee is obligatory upon the announcer, so that he bears it as if he had intended ownership: had he done it himself, he would have had no fee to claim from the owner, and likewise if he hires someone for it, the owner owes nothing; and because it is a cause of his acquiring it, it is on the finder as if he had intended to own it.
Malik said: if he gives something of it to the one who announced it, no debt weighs on him, just as if he gave something to the one who dried it; we have already mentioned the evidence (al-Mughni, 6/5). Ibn Muflih (may Allah have mercy on him) said: the announcer's fee is on the finder by explicit text, for he is the cause, so the fee falls on him, as if he had hired someone to cut what is permissible; if he does it himself, he gets nothing.
Abu al-Khattab said: what is not acquired by the announcement and whose safekeeping for its owner is intended, its fee goes back to the owner, for it is part of the delivery, like the fee of the storekeeper and the shepherd. In "al-Mughni" and "al-Sharh", what is not acquired by the announcement is attributed to Ibn 'Aqil, and what is intended for safekeeping to Abu al-Khattab; according to al-Halwani and his son it is like the expense of drying; it is said: like it if he did not take ownership; and "al-Funun" mentions the literal wording as the apparent statement of our companions (al-Mubdi', 5/282).
The Malikis in the madhhab and the Shafi'is in one view held that the announcer mentions neither its kind, nor its amount, nor its description, but describes it by a general trait that blends its name with others. He says: "Whoever has lost property or a thing"; he states its distinguishing mark and takes it; or he says: "I found something, or a luqata". For if he mentioned its kind, the mind of some sharp ones would be led to its amount, to what it is kept in, or to what it is tied with; it is better not to mention its type, such as gold or silver coin, nor its description, such as riyals, dinars or pounds (al-Taj wa-l-Iklil, 5/37-38; Sharh Mukhtasar Khalil, 7/125; al-Sharh al-kabir with Hashiyat al-Dasuqi, 5/528; al-Sharh al-saghir, 9/290; Tahbir al-Mukhtasar, 5/38).
The owner of the luqata comes either during the year of announcement or after it. If he comes during the year and describes it, only two situations are possible. The first situation: he comes with evidence and describes its distinguishing marks and its container. The jurists agreed that if the owner comes during the year, describes the luqata and establishes evidence for it, returning it becomes obligatory, according to the hadith of Zayd ibn Khalid al-Juhani (may Allah be pleased with him): the Messenger of Allah (peace and blessings be upon him) was asked about the luqata and said:
Announce it for a year; if it is not claimed, describe its distinguishing marks and its container, then eat it; if its owner comes, hand it back to him.Reported by Muslim (1722)
A narration states: "If its owner comes and describes its distinguishing marks, its amount and its container, give it to him; otherwise it is yours" (Muslim, 1722). The second situation: he comes with a distinguishing mark and describes it by its features, without evidence. The jurists disagreed about the man who comes with a mark but without evidence: is returning the luqata to him obligatory or not? And is returning it on the basis of the mark without evidence permitted or not?
The Malikis and the Hanbalis held that evidence is not required: the distinguishing mark suffices, and the luqata must be given to the one who comes with its mark. Imam Ibn Abd al-Barr (may Allah have mercy on him) related their disagreement over returning the luqata to the one who comes with the mark without evidence. Malik said: it is acquired by the mark. Ibn al-Qasim said: the finder is compelled judicially to hand it over; if a rightful claimant later comes and acquires it by evidence, the finder guarantees nothing. Malik said: likewise thieves with whom goods are found, claimed by people without proof: the ruler is to be blamed for that; if no one else comes, he hands the goods to them; the same applies to the runaway slave. This is also the view of al-Layth ibn Sa'd and al-Hasan ibn Hayy: it is given to the one who comes with the distinguishing mark.
The proof of those who hold this view is the saying of the Prophet (peace and blessings be upon him): "Describe its distinguishing marks, its container and its amount; if its owner comes and describes it, hand it over to him." This is an explicit text at the point of dispute, requiring that whatever contradicts it be set aside (al-Tammhid, 3/120). Qadi Abd al-Wahhab (may Allah have mercy on him) said: if the claimant of the luqata gives the distinguishing mark of its marks and container, it is handed to him without evidence. Abu Hanifa and al-Shafi'i said: it is not handed over except with evidence.
Their proof is his saying (peace and blessings be upon him) to the one who asked him about the luqata: "Describe its distinguishing marks and its container, then announce it for a year; if its owner comes and describes its distinguishing marks and its container, hand it over to him", and it is narrated: "If its claimant comes, hand it over to him". Evidences in the principles are graded according to the circumstances in which they are produced and what necessity demands: what necessity permits is not permitted otherwise. Here necessity calls for it, for evidence cannot cover what is exposed to loss, nor the description of people's property in every state; were people burdened with evidence, they would abandon benefiting from their properties (al-Ishraf, 3/266-267, no. 1109).
The Hanbalis said: if its owner comes and describes to him the mentioned features, it is handed to him without evidence, even after the year, whether or not his truthfulness predominates. The proof is the hadith of Ubayy ibn Ka'b, in which the Prophet (peace and blessings be upon him) said:
Take note of its amount, its container and its distinguishing marks; if someone comes and tells you of its amount, its container and its distinguishing marks, give it to him, otherwise enjoy it.Reported by Ahmad, Muslim and al-Tirmidhi
In the hadith of Zayd: "If its claimant comes one day of this world, hand it over to him", and in a narration: "If its owner comes and describes its distinguishing marks, its amount and its container, give it to him; otherwise it is yours" (Muslim, 1722).
This means: if he mentions its features, for that is what is mentioned at the beginning of the hadith, and evidence is not mentioned anywhere in the hadith. Were it a condition of restitution, it could not be neglected, nor would restitution be commanded without it. Moreover, establishing evidence over a luqata is difficult: it fell only through heedlessness and oversight, so that suspending its restitution would prevent it from ever reaching its owner. That would defeat the purpose of picking it up and lead to the loss of people's property, and this is not the way the effect of evidence is set aside, as in spending on the orphan.
As for the Prophet's saying (peace and blessings be upon him): "Proof is upon the claimant", it concerns the case where there is a denier, according to his saying in the same report: "And the oath is upon the one who denies"; but there is no denier here. Moreover, evidence varies, and the Prophet (peace and blessings be upon him) made the claimant's evidence for the luqata its description: once he describes it, he has established his proof. Comparing the luqata to the usurped property is incorrect: in usurpation the dispute is over the very fact of usurpation, the default being non-existence, and the denier's word opposes the claim, so evidence is needed. Here it is established that this property is a luqata with an owner other than the one who holds it, with no claimant but the describer, whose truthfulness prevailed: he therefore deserves to have it handed to him (al-Mughni, 6/12-13; Sharh al-Zarkashi, 2/218).
The Hanafis said: if a man comes and claims the luqata, it is not handed to him until he establishes evidence, for he is a claimant and is not believed without evidence; and because possession is a sought right, like ownership, which is not acquired except with a title, namely evidence, by analogy with ownership. However, it is allowed for him to be handed it when he hits upon the mark, according to his saying (peace and blessings be upon him): "If its owner comes and describes its distinguishing marks and its amount, hand it over to him"; this is an authorization, acting on the famous view and on the hadith: "Proof is upon the claimant".
If he gives its mark, the finder may hand it over, but he is not compelled to do so in judgment; and he may take a guarantor (kafil) from him if he hands it over, as a precaution, with no dispute, for he takes the guarantor for himself. If he attests him (by oath), it is said: he is not compelled to hand it over, like the agent appointed to receive a deposit whom he has attested. It is said: he is compelled, for the owner here is not apparent, whereas the depositor is the apparent owner. The mark consists in naming its weight in dirhams, its amount, its features and its container.
Al-Kasani (may Allah have mercy on him) said: if its owner comes and establishes evidence that it is his property, he takes it, according to the saying of the Prophet (peace and blessings be upon him): "Whoever finds his own property has the greater right to it". If he does not establish evidence but mentions the mark, describing its features, container, weight and amount, the restitution is not obligatory to him, for he is a claimant and is not believed without evidence; however the finder may hand it over to him, and if he wishes he may take a guarantor from him. Returning it by the mark is something the Shari'a sanctioned in general, as with the foundling (laqit); but there he is compelled and here he is not: there, the mere claim suffices for compulsion, all the more with the mark; here the mere claim carries no weight by consensus, so compulsion with the mark may occur or not; the restitution is permitted and he may take a guarantor, since another may come claiming it and establishing evidence (Bada'i' al-Sana'i', 6/202; al-Jawhara al-Nayyira, 4/196; al-'Inaya, 8/214).
The Shafi'is said: if a man claims the luqata without describing it by its features and without evidence establishing ownership, such as a witness or an oath, and the finder does not know that it is his, handing it to him is not permitted, according to the hadith: "Were people given what they claim...". If he establishes evidence for it, or the finder knows it is his, the restitution becomes obligatory, and the obligation rests on the finder; no judge compels him by the description alone. If the sole claimant describes it in a way that encompasses all its features and the finder believes him, he may hand it over with certainty, acting on his conviction; al-Shafi'i even declared it recommended, but it is not obligatory in the madhhab, for he is a claimant who needs evidence like anyone else, and is suspected of having heard its description from one resembling its owner.
According to one view, the restitution is obligatory, for establishing evidence may be difficult. As for description by a group, Qadi Abu al-Tayyib said: we all agreed that it is not handed over to them. If his truthfulness is not presumed, the restitution is not obligatory by consensus and is not permitted on the famous view; and if the owner says to him: "You know it is mine", he may swear that he does not know that. If the finder hands the luqata to the describer by mere description, without a judge compelling him, and another later establishes evidence that it is his property and that it did not leave him knowingly, it is transferred from the first to the latter, for evidence is a proof requiring restitution and takes precedence over bare description.
If the luqata perishes with the describer, the holder of the evidence is entitled to the finder's guarantee, for he handed over what was not his to hand over; but if a judge compelled him to hand it over, no liability rests on him.
The reason is that he committed no shortcoming; the finder may moreover demand the guarantee of the one to whom the luqata was handed, for the latter took what was not his to take, and the responsibility for its perishing in his hand rests on him (Rawdat al-Talibin, 4/221; al-Najm al-Wahhaj, 6/41-42; Mughni al-Muhtaj, 3/520; al-Dibaj, 2/564; Tuhfat al-Muhtaj, 7/643). Ibn Hubayra (may Allah have mercy on him) said: they disputed the case of one who contests the luqata and reports its amount, its distinguishing marks and its container: is it handed to him without evidence? Malik and Ahmad said: it is handed to him without evidence. Al-Shafi'i and Abu Hanifa said: the restitution is not obligatory without evidence, but it is permitted to hand it over without evidence if his truthfulness predominates (al-Ifsah, 2/65-66).
If two people describe the luqata, the jurists disputed: is it divided between them or submitted to drawing lots? Ibn al-Hajib (may Allah have mercy on him) said: if two men describe it by what would allow a single man to take it, they ally themselves and it is divided between them; if one refuses to swear, it belongs to the one who swore. If it was handed over by description and evidence, and then a second describes it or establishes evidence, nothing is due from the finder. Ibn al-Majishun said: if he produces no testimony of the describer's seizure, the finder guarantees it (Jami' al-Ummahat, 1/459).
Abu al-Walid Ibn Rushd of Cordoba (may Allah have mercy on him) said: Ashhab was asked about two men claiming the luqata held by a man who found it, one describing the distinguishing marks and the container, the other the number of dinars and their weight. He said: it belongs to the one who described the distinguishing marks and the container; and likewise if he described only the distinguishing marks, it is his too, after the waiting period (istibra'). If a man claims it alone and describes the distinguishing marks, he observes the waiting period: if no one comes, it is given to the one who described the distinguishing marks. The hadith "Describe the distinguishing marks and the container" means that if its claimant comes, it is like the case of the two commingled properties when the bucket, the shepherd and the trough are one and the same: when he brings together the shepherd, or the trough, or the bucket, the two become commingled; likewise when this one describes a part without describing the other.
If a man says that it is in a red rag and a white thread, and the rag is found as he said but the thread is black, he likewise observes the waiting period, and the matter is then decided afterwards. That man contradicted himself by claiming knowledge of the container and the marks when it turned out otherwise, and he is not to be believed. He is believed only if he was right about one part and claimed ignorance of another: he then waits, and if someone comes with something stronger than what he brought, that one prevails; otherwise it is given to him. If he describes the marks and the container and claims they are dinars, but the marks and container are found as he said and dirhams are found inside, it is not given to him: he only claimed gold dinars, which are lost to him; he did not claim dirhams. Likewise if he says: a red rag, a white thread and Hashimi dinars, and the rag and thread are found as he said but the dinars are of another mint ('utq), he is entitled to nothing.
Muhammad ibn Rushd said: if two men claim the luqata, one describing the distinguishing marks and the container, the other the number of the dinars and their weight, it belongs to the one who described the distinguishing marks and the container, that is, together with his oath; there is disagreement on this. There is no disagreement when the man comes alone: it is said that it is handed to him by the description without an oath, which is the apparent import of Ibn al-Qasim's view in the Mudawwana. The reason is that the description, in a luqata with no claimant, stands like decisive evidence for what is his, with respect to the one who can hand it over. It is said: it is handed to him only with an oath. If two men describe it, they are made to swear: if one swears and the other refuses, it belongs to the one of them who swore; if both swear or both refuse, it is divided between them. His statement that it is divided if they both refuse retracts his statement that it is handed to him, if he comes alone, only with an oath. Asbagh approved, in one of his two views, the division after their oaths when one describes the distinguishing marks and the container and the other the number of the dinars and dirhams, as if they both agreed on the description of the marks and the container.
The preferable course is for the claimant of the luqata to describe the distinguishing marks and the container, together with what they include of the number of the dinars and dirhams and their description. If he describes one part and is ignorant of another, or errs in it, there is disagreement and detail: his ignorance of the number does not harm him if he described the distinguishing marks and the container; nor does his error by excess, for he may have been deceived about some of it. The disagreement concerns his error by default when he described the distinguishing marks and the container: two views. If he errs in the description of the dinars, I know of no disagreement that he is entitled to nothing.
As for the distinguishing marks and the container, if he describes one and is ignorant of the other or errs in it, three views exist. The first: he is entitled to nothing without knowing both. The second: he observes the waiting period: if no one comes with something stronger than what he brought, it is handed to him. The third: if he claims ignorance, he observes the waiting period, and if he errs, he is entitled to nothing: this is the most just of the views, and Allah knows best. If he is ignorant of both the marks and the container while knowing the number of the dinars, their description and their weight, that falls outside Asbagh's view, based on istihsan, of dividing between the two claimants; and it would likewise be his if he came alone, describing the number of the dinars and dirhams, their description and their weight, while ignorant of both the marks and the container. And success is granted by Allah (al-Bayan wa-l-Tahsil, 15/376-379).
Imam Ibn Qudama (may Allah have mercy on him) said: if two men describe it, lots are drawn between them: the one on whom the lot falls swears that it is his and it is handed to him; likewise if they establish two pieces of evidence: lots are drawn, then the one on whom the lot falls swears and it is handed to him; the Qadi mentioned this. Abu al-Khattab said: it is divided between them, for they equalized in the ground of restitution and therefore equalize in it, as if it were in their two hands. What we say is stronger and closer to our principles when they dispute property held by a third party; for they dispute an item in another's hand and equalized in the evidence or its absence, so that it belongs to the one on whom the lot falls, as if they claimed a deposit in a man's hand and he said: it belongs to one of you, I do not know which one; that differs from the case where it is in their two hands, for each one's hand bears on his half: his view prevails there.
If a man describes it and another establishes evidence that it is his, it belongs to the holder of the evidence, for it is stronger than the description. If the describer had taken it, it is wrested from him and returned to the holder of the evidence, since we established that it is his; if it perished, its owner receives the guarantee of the describer or of the one who handed it over, as he wishes. This is what Abu Hanifa and al-Shafi'i said; it follows that nothing is required of the finder: this is the view of Ibn al-Qasim, Malik's companion, and of Abu Ubayd, for he did what he was ordered to do, being trustworthy, neither negligent nor failing; he therefore guarantees nothing, as if he had handed it over by the ruler's order; and because the restitution was obligatory on him, it took place without his choice, so he does not guarantee it, as if he had taken it by force.
We (the Hanbalis) hold: if he hands over another's property to one not entitled to it, by his own choice, he guarantees it, as if he handed the deposit to someone other than its owner believing him to be the owner. But if he hands it over by a ruler's judgment, the owner cannot pursue the one who handed it over, for it was taken from him under constraint: he guarantees nothing, as if he had usurped it. When the describer guarantees, he does not revert against anyone, for the aggression is his and the loss occurred at his place. If the one who handed it over guarantees, he reverts against the describer, for he was the cause of his being fined; unless the finder acknowledged before the describer that he is its owner: he then does not revert against him, for he admitted that he is its owner and rightful claimant, and that the holder of the evidence wronged him by fining him; one reverts only against the one who wronged him.
If the luqata perished with the finder who guaranteed it, he reverts against the describer for what he paid out, and its owner has no claim of guarantee against the describer, for what was received is the finder's property, not that of the luqata's owner; the opposite applies if he handed over the item itself.
As for the case of a man who described it and took it, and then another came who described it and claimed it: the latter obtains nothing, for the former acquired it by his description, with no contest; his hold was established over it and nothing requires wresting it from him: it must therefore remain like the rest of his property (al-Mughni, 6/13-14; al-Kafi, 2/354; al-Mubdi', 5/288; al-Insaf, 6/422-423).
The jurists of the four schools agreed that if the owner comes after the year and describes the luqata, returning it is obligatory if it still exists, and its value if he consumed it. They drew this from the hadith of Zayd ibn Khalid al-Juhani, companion of the Messenger of Allah (peace and blessings be upon him), who said: the Messenger of Allah was asked about a luqata of gold or silver, and he said:
Describe its container and its distinguishing marks, then announce it for a year; if it is not recognized, spend it; let it remain a deposit with you; if its claimant comes one day of this world, hand it over to him...Reported by Muslim (1722)
Imam al-Nawawi (may Allah have mercy on him) said: his saying "then announce it for a year; if its owner does not come, it remains a deposit with you" (and in the second narration: "then announce it for a year; if it is not recognized, spend it, and let it remain a deposit with you; if its claimant comes one day of this world, hand it over to him") means that it remains a trust (amana) with you after the year as long as you have not taken ownership of it: if it perishes without negligence on your part, no liability rests on you.
This does not mean that he is prevented from owning it: he may own it as we mentioned from the explicit, surviving hadiths, such as his saying: "then he spent by it and he spent it". He alluded to this in the second narration: "if it is not recognized, spend it and let it remain a deposit with you", meaning that the owner's right does not cease: as soon as he comes, hand it over to him if it survives, otherwise its substitute. This is the meaning of his saying: "If its owner comes one day of this world, hand it over to him": the owner's right does not cease absolutely. The Qadi and others related the consensus of the Muslims that if the owner comes after the appropriation, the appropriator guarantees it, except Dawud, who dropped the liability; and Allah knows best (Sharh Sahih Muslim, 12/24-25).
Imam Ibn Abd al-Barr (may Allah have mercy on him) said: his saying (peace and blessings be upon him) in the hadith of 'Iyad ibn Himar: "If its owner comes, he has the greater right to it; otherwise it is Allah's property, which He gives to whom He wills", means that the finder's hand is released and he disposes of it after the year; but he guarantees it if the owner comes, an obligation by the consensus of the Muslims, for he has consumed another's property. They all agreed that whoever consumes another's property and spends it without his permission is charged and guarantees it, and that whoever destroys something of another's property guarantees it however he consumed it, with no disagreement (al-Tammhid, 3/119-120).
Imam Ibn Batal (may Allah have mercy on him) said: the imams of fatwa agreed that if the finder announces the luqata for a year, benefits from it and spends it after the year, then its owner comes, he returns its value to him and guarantees it. His saying "see to it" does not permit him to take it nor drop its guarantee, for it is established from him (peace be upon him): "If its owner comes after the year, hand it over to him", since it remains a deposit with its finder.
A man to whom knowledge was attributed broke this consensus: Dawud ibn Ali, who said that if the owner comes after the year, the finder does not guarantee it, since the Prophet (peace be upon him) would have generalized ownership by his saying "see to it", so that no liability rests on him. There is no precedent for this except following one's whims and daring to oppose the community, which must not suffer distorted interpretation; may Allah protect us from following whims and innovating in His religion what He has not permitted (Sharh Sahih al-Bukhari, 6/552).
He said further: a chapter on the fact that if the owner of the luqata comes after a year, it is returned to him, for it remains a deposit with the finder. It is related that Zayd said that a man asked the Prophet (peace and blessings be upon him) about the luqata, and he said: "Announce it for a year, then describe its distinguishing marks and its container, then spend by it; if its master comes, hand it over to him...", to the end of the hadith. The imams of fatwa agreed that if the owner of the luqata comes after the year, restitution is binding on the one who found it, according to his saying (peace be upon him): "If its owner comes, hand it over to him".
We mentioned before that one of those to whom knowledge was attributed, marked by opposing the imams, contradicted their consensus by following this hadith, and contradicted his saying: "hand it over to him", claiming that after the year nothing is to be returned, drawing on his saying: "see to it", as if it generalized ownership and removed the duty of restitution. This is a view that leads to the contradiction of the sunnas, and the Messenger is far too great to contradict himself. His saying: "hand it over to him" explains and interprets his saying: "see to it". Had "see to it" meant the release of the hand and the dropping of the liability, the benefit of "hand it over to him" would be void; using both hadiths for two benefits is better than voiding one of them: such is the scholars' method in harmonizing reports and judging the concise by the detailed (Sharh Sahih al-Bukhari, 6/560-561).
Imam al-Qurtubi (may Allah have mercy on him) said: nothing in his saying about the luqata after the announcement: "enjoy it", "see to it", "it is yours", "spend it", "eat it" or "it is Allah's property, which He gives to whom He wills", as reported in the Sahih of Muslim and others, indicates ownership and the dropping of the liability from the finder when its master comes. For in the hadith of Zayd ibn Khalid al-Juhani: "if it is not recognized, spend it and let it remain a deposit with you; if its owner comes one day of this world, hand it over to him", and in a narration: "eat it; if its owner comes, hand it over to him", related by al-Bukhari and Muslim.
The scholars agreed that the owner, as soon as he comes, is the one with the greatest right to it, except for Dawud, who held that the finder takes ownership of the luqata after the announcement according to those apparent texts; no attention is given to his view, for his contradiction of the people and for the Prophet's saying (peace be upon him): "hand it over to him" (Tafsir al-Qurtubi, 9/137-138).
The vizier Ibn Hubayra (may Allah have mercy on him) said: they agreed that, so long as the luqata is not trivial or perishable, it is announced for a year. They agreed that its owner, if he comes, has the greater right to it than its finder, once it is established that he is its owner. They agreed that if its finder eats it after the year, its owner may impose the guarantee on him if he wishes; and that if its finder gives it in charity after the year, its owner chooses between the guarantee and the reward: whichever he chooses, he obtains it by consensus. The finder's hand does not extend over it by way of charity, and it may not be disposed of before the year, except for the stray sheep (al-Ifsah, 2/59-60).
If the luqata perishes after the year without negligence, Imam Ibn Qudama (may Allah have mercy on him) said: the luqata, during the year, is a trust in the finder's hand: if it perishes without his negligence or diminishes, no liability rests on him, like the deposit; and as soon as its owner comes and finds it, he takes it with its increase, whether attached or separate, for it is the growth of his property. If the finder destroys it or it perishes through his negligence, he guarantees its like if it has an equivalent, or its value if it has none; I know of no disagreement on this.
If it perishes after the year, its like or its value is established against him in every case, for it entered his ownership and perished as part of his property, whether he failed in its safekeeping or not. If he finds the item diminished, the diminishment being after the year, he takes the item and pays the compensation (arsh) for its diminishment, for the whole property is guaranteed if it perishes, and likewise if it diminishes. This is the view of most of the scholars who ruled that ownership is acquired by the lapse of the year of announcement.
As for the one who said that he does not own it until he chooses ownership, he is not charged with its guarantee until he takes ownership, and its ruling before his appropriation is that of before the year's lapse. As for the one who said that the luqata is never owned, he does not charge him with it: this is the view of al-Hasan, al-Nakha'i, Abu Mijlaz, al-Harith al-'Akli, Malik, and likewise Abu Yusuf, who said: no liability, even if it is lost after the year; we have already mentioned the evidence of its entry into his ownership. Dawud said: if he takes ownership of it and destroys it, he does not guarantee it.
Ibn Abi Musa related from Ahmad that he inclined toward this view, according to the saying of the Prophet (peace and blessings be upon him) in the hadith of 'Iyad ibn Himar: "If its master comes; otherwise it is Allah's property, which He gives to whom He wills", which makes it licit; and his saying in the hadith of Ubayy ibn Ka'b: "If someone comes to describe it; otherwise it is like one's own property", and in the hadith of Zayd: "If its owner comes; otherwise see to it", with the narration "it is yours" also reported, without his having ordered him to return its substitute.
Our (Hanbali) argument is the saying of the Prophet (peace and blessings be upon him): "If it is not recognized, spend it and let it remain a deposit with you; if its claimant comes one day of this world, hand it over to him". Al-Athram said: Ahmad declared: I incline toward the hadith of al-Dahhak ibn 'Uthman, whose wording is good and which no one narrated like him: "If its owner comes after a year while he has spent it, return it to him". For it is property whose restitution would be obligatory if it survived: its guarantee is therefore obligatory if he destroys it, as before the year; it is protected property whose right cannot be dropped from him absolutely, as if he were compelled to use another's property (al-Mughni, 6/14-15).
Al-'Imrani the Shafi'i (may Allah have mercy on him) said: if he takes the luqata and announces it for a year, then if we say that he owns it only by choosing ownership, it is a trust in his hand, as before the announcement period ended. If we say that he owns it by the lapse of the period, or that he owns it only by choice, and he chooses ownership, he owns it with its substitute established in his liability: if it has an equivalent, the like of it is established against him; otherwise its value (al-Bayan, 7/533).
The jurists disputed what must be done when a full year has passed over the announcement and its master has not come: does the finder own it by the mere lapse of the year? Is the intention to own it required? Is owning it forbidden to him? Does he give it in charity absolutely, whether rich or poor? Does he own it if he is poor and give it in charity if he is rich? Such is the disagreement among the jurists.
The Hanafis said: if the finder announced the luqata for a year and its owner did not come during the announcement period, he has the choice: he keeps it until its owner comes, or gives it in charity to the poor. If he wishes to benefit from it and he is rich, that is not permitted, according to what is narrated from Abu Hurayra (may Allah be pleased with him): the Messenger of Allah (peace and blessings be upon him) said:
He was asked about the luqata, and he said: the luqata is not licit. Whoever picks up something should announce it for a year; if its owner comes, let him return it to him; if its owner does not come, let him give it in charity; and if he comes, let him leave him the choice between the reward and what is due to him.Weak hadith: reported by al-Dar al-Qutni (4389), al-Tahawi (Sharh Mushkil al-Athar, 12/128), al-Tabarani in al-Awsat (2/353, no. 2208) and in al-Saghir (1/62, no. 72)
Two arguments emerge from this hadith. The first: he negated its licitness absolutely, and the state of poverty is not what is intended by consensus, so the state of wealth is what is meant. The second: he commanded charity, whose recipient is the poor man and not the rich man; benefiting from a Muslim's property without his permission is allowed only out of necessity, and there is no necessity when one is rich.
If he gives it in charity to the poor and its owner then comes, the latter has the choice: either he confirms the charity and takes its reward, his later permission counting as prior permission; or he imposes the guarantee on the finder, or on the poor man if he finds him, for the charity was suspended upon his permission. Whichever of the two he makes guarantee, he does not revert against its author, like the usurper of a usurper: if he makes the finder guarantee, the finder does not revert against the poor man, for by guaranteeing it the owner took ownership of its substitute, which shows that the finder gave charity from his own property and has its reward.
If he imposes the guarantee on the beneficiary of the charity, he does not revert against the finder either, for charity is a contract of benefaction: when the beneficiary guarantees it, he does not revert against the benefactor. If the finder is poor, he gives it in charity to the poor if he wishes, or spends it on himself if he wishes; when its owner comes, he leaves him the choice between the reward and the guarantee, as mentioned. Likewise, if he is rich, he may give it in charity to his father, his son and his wife if they are poor, since benefiting from it being allowed if he is poor, giving it in charity to these persons is allowed (Bada'i' al-Sana'i', 6/202; al-Ikhtiyar, 3/38; al-Jawhara al-Nayyira, 4/192, 197; al-Lubab, 1/663; Mukhtasar al-Wiqaya, 2/252).
The Malikis said: the finder who has announced the luqata for a year without its owner coming has the choice between three things. The first: to keep it until its master appears. The second: to give it in charity on behalf of its master. The third: to take ownership of it; this includes giving it in charity from himself: if its master comes, he guarantees it, both in the charity on the master's behalf and in the ownership. On the famous view, there is no difference between the luqata of Mecca and those of other lands in these three cases.
They deduced it from the hadiths: "Announce it for a year; if its owner comes; otherwise see to it"; in the Sahih: "if it is not recognized, spend it"; and in an-Nasa'i: "if its owner does not come, it is Allah's property, which He gives to whom He wills". These hadiths imply that its ruling after the year differs from before, and that he may dispose of it for himself; this is what Ibn al-Qasim's view in the Mudawwana implies: he may benefit from it, rich or poor, for whatever can be owned in exchange can be owned through a luqata, as with the poor man.
This choice applies when the finder is not the Imam: the Imam may only keep it or sell it for its owner and place the price in the public treasury; he may neither give it in charity nor own it, because of the difficulty of discharging what weighs in his liability, unlike others (al-Ishraf 'ala nukat masa'il al-khilaf, 3/267-268, no. 1110; al-Taj wa-l-Iklil, 5/38-39; Sharh Mukhtasar Khalil, 7/125; al-Sharh al-kabir with Hashiyat al-Dasuqi, 5/528-529; Tahbir al-Mukhtasar, 5/38).
The Shafi'is said: if the finder has announced the luqata for a year and its owner has not come, he has the choice between two things: to keep it for its owner until he appears, or to choose ownership, on the correct view of the madhhab, with an explicit formula such as: "I take possession of what I picked up", for he takes ownership in exchange, so that the choice of ownership is required, as in a sale. It is said that the intention suffices without any formula; it is said that he owns it by the lapse of the year even without choosing ownership, for the cause of ownership is the announcement: once the cause exists, ownership follows, as with hunting, cutting wood and reviving dead land.
If he chooses ownership, he becomes its owner, whether the finder is rich or poor, and whether he is of the Prophet's family (peace and blessings be upon him) or not, according to what is related in the hadith of Zayd ibn Khalid al-Juhani: the Prophet (peace and blessings be upon him) was asked about the luqata and said: "Announce it for a year; if its owner comes; otherwise see to it", that is: do with it as you wish; he left the matter to his free choice, and a narration has: "otherwise benefit from it", with no distinction between the rich and the poor.
Ubayy ibn Ka'b related:
I found a pouch containing a hundred dinars and went to the Prophet (peace and blessings be upon him), who said: "Announce it for a year". I came back to him and he said: "Announce it for a year", two or three times, until he said: "Take note of its amount, its container and its distinguishing marks; if its owner comes; otherwise enjoy it".Related from Ubayy ibn Ka'b
Al-Shafi'i said: "Ubayy ibn Ka'b is among the wealthiest of the people of Medina, or like their wealthiest."
The reason is that whoever may own through a loan may own through the luqata, like the poor man; the opposite is the slave. If he takes ownership of it and the owner appears and they agree on returning the property itself, that is so, for the right belongs to the two of them and does not exceed them. Restitution before any demand is obligatory on the finder on the stronger view, and the expense of restitution after the ownership falls on the finder, for he took the property for his own purpose, and it is for the owner to accept its restitution.
If the owner wants the luqata and the finder wants to switch to its substitute, the owner is granted his wish on the stronger view, as with the loan, or even more so, for the owner here has a legal authority that the borrower does not have, since he did not consent to the ownership being established on him. The one answered in return is the finder. If the luqata perishes after the ownership, he owes its like if it is fungible, or its value otherwise, on the day of the ownership; it is said: the day of perishing; it is said: the day of the demand. If it diminishes through a defect occurring after the ownership, he takes it with the compensation (arsh) on the stronger view; according to the second view, he accepts it without compensation (al-Bayan, 7/530-532; Rawdat al-Talibin, 4/01; al-Najm al-Wahhaj, 6/37, 41; Mughni al-Muhtaj, 3/517-518; al-Dibaj, 2/563; Tuhfat al-Muhtaj, 7/638, 642).
In a long note of "al-Hawi al-kabir" (8/14-15), al-Mawardi relates that al-Shafi'i (may Allah have mercy on him) said: "if its owner comes; otherwise it is his after a year", the owner being able to come during his lifetime or after his death, in which case it is a debt if he consumed it. Once the year of announcement is complete, the finder has the choice between owning it, keeping it as a trust in his hand, or handing it to the ruler to keep it for its owner, by placing it in the public treasury or with a trustworthy man.
Abdallah ibn Umar said that after the year of announcement the finder may not own it: he must place it in the public treasury. Malik said: if he is rich, he may own it; if he is poor, it is not allowed to him, since the poor man cannot bear the debt while the rich man can. Abu Hanifa said: the poor man may own it, not the rich man. The proof for all of them is his saying: "if its owner comes; otherwise see to it", and it is related in some reports: "if its owner comes; otherwise it is yours".
The Messenger of Allah (peace and blessings be upon him) permitted Ali (peace be upon him) to own the dinar when he could not bear its debt, until the Messenger of Allah settled it on his behalf, which voids Malik's view; and he permitted Ubayy ibn Ka'b to own the pouch while he was rich, which voids Abu Hanifa's view. Had the finder been prevented, after the year, from owning it, one of two things would result: either he would no longer wish to take it, or keeping it for a long time would become burdensome; permitting ownership after the announcement is therefore more inciting to take it and safer for its owner, since the debt is established in his liability and the luqata is no longer exposed to loss; the finder benefits from its use in return for what he endured in keeping it and announcing it; and all these meanings apply equally to the rich and the poor.
Al-Shafi'i's madhhab then states: there is no difference between the Muslim and the dhimmi in taking it to announce it and owning it after the year, for it is earnings in which the Muslim and the dhimmi are equal. Some of his companions said that the dhimmi has no right in it: he is prevented from taking it and owning it, for he is not among those who announce, having no authority over a Muslim, nor among those who may own the appendages of the abode of Islam, such as reviving dead land.
Once the lawfulness of owning it after the year is established, for the rich and the poor alike, al-Shafi'i's companions disputed how he becomes its owner, in three ways. The first: he becomes its owner by the mere lapse of the year, unless he chooses for it to remain a trust, in which case it does not enter his ownership; this is the view of Abu Hafs ibn al-Wakil, for it is gain without exchange, resembling buried treasure (rikaz) and hunting.
The second way: he owns it after the lapse of the year by choosing ownership; if he does not choose it, he does not own it; this is the view of Abu Ishaq al-Marwazi, for the Prophet (peace and blessings be upon him) said: "if its owner comes; otherwise see to it", referring the matter to his choice, and because ownership was permitted to him after the year while he had been a trustee: he must therefore not leave his former state except by choosing what he was permitted. The third way: he does not own it after the year except by choice and disposal, for disposal is valid only from an owner, his disposal resembling taking possession and gift-giving.
Once he owns it as mentioned, he guarantees it to its owner: whoever comes claiming it, it is returned to him if it survives, and the appropriator may not prefer its substitute so long as it exists. If it is lost, he returns its substitute: its like if it is fungible, otherwise its value at the time he took ownership, for at that moment he became its guarantor. If they dispute the value, the view of the appropriator, who owes the indemnity, prevails. If it existed when its owner came but a separate growth had occurred, he returns the principal without the growth, for the growth occurred on the finder's property. If the finder knows its owner, he must inform him at that point (al-Hawi al-kabir, 8/14-15).
The Hanbalis said: if the finder announces it for a year without it being recognized, he owns it and it becomes part of his property like the rest of his wealth, whether the finder is rich or poor, according to the saying of the Prophet (peace and blessings be upon him) in the hadith of Zayd ibn Khalid: "if it is not recognized, spend it", and in a wording: "otherwise it is like one's own property", and in a wording: "eat it", in a wording: "benefit from it", in a wording: "see to it", and in the hadith of Ubayy ibn Ka'b: "spend it", and in a wording: "enjoy it", an authentic hadith; and because whoever owns through the obligatory share (farid) owns through the luqata, like the poor man, and whoever is allowed to pick up owns through it after the announcement, like the poor man.
The luqata enters his ownership upon the completion of the announcement by legal rule, like inheritance, according to the saying of the Prophet (peace and blessings be upon him): "If its owner comes; otherwise it is like one's own property" and his saying: "spend it". Had its ownership been suspended upon choosing it, that would have been clarified to him and he would not have been permitted to dispose of it before; yet a wording says: "it is yours" and another says: "eat it": all these formulas indicate this. Picking up and announcing are a cause of ownership: once the cause is complete, ownership must be established by legal rule, like reviving dead land and hunting; and because it is a cause through which he owns, ownership does not stand after it upon his statement or choice, unlike other causes, for the morally responsible agent has nothing but direct engagement with causes: once the cause occurs, the ruling is established from Allah, Most High, by compulsion, without depending on the agent's choice; the loan, by contrast, is the cause in itself, so ownership is not established without it.
Abu al-Khattab held that it does not enter his ownership until he chooses. The luqata is owned as a considered ownership that ceases with its owner's coming, to whom its substitute is guaranteed if restitution is impossible. Ibn Qudama (may Allah have mercy on him) said: the apparent view is that he owns it without a substitute established in his liability; the obligation of the substitute is renewed only upon the owner's coming, just as ownership over it ceases with his coming, and just as the obligation of half the dowry (mahr) to the husband, or its substitute if ownership cannot be established by divorce, is renewed. This is the view of some of al-Shafi'i's companions; most of them said that he owns it only with a substitute established in his liability for its owner: this is the view of the Qadi and his companions, the proof being that he owns it when it is demanded of him, which makes it resemble the obligatory share.
Our argument is the saying of the Prophet (peace and blessings be upon him): "If its owner comes; otherwise it is Allah's property, which He gives to whom He wills", which ranks it among permitted things. If the finder died, its substitute would not be isolated from his estate, he would not deserve to take from zakat because of the debt, he would not be required to bequeath it, nor would the obligation of zakat on his property be suspended because of the debt: none of the rulings of debt would apply to him, and the absence of those rulings proves the absence of the debt. The Qadi said that this would prevent the obligation of zakat; and because if he owned it with a substitute, his ownership would not cease with the owner's coming, even if his ownership of it were suspended upon his consent to the exchange and his choice, like the loan, whereas it is otherwise.
The owner deserves the demand only after his coming, with the condition of its perishing: if it existed, he would take it and deserve no substitute; if it perished, the ownership of the demand for its substitute is renewed for him, just as his ownership of it is renewed if it existed, and just as his ownership of half the dowry is renewed by divorce before consummation, and of its substitute if it does not exist. This is closer to our question, and by it what they mentioned is void; as for the loan, its substitute being established in liability, ownership of the borrowed item returns only by the lender's consent and choice (al-Mughni, 6/7, 9; Sharh al-Zarkashi, 2/215, 218; Kashshaf al-Qina', 4/266-268; Sharh Muntaha al-Iradat, 4/300-302; Manar al-Sabil, 2/307-309).
Imam Ibn Rushd (may Allah have mercy on him) said: they disputed its ruling after the year, and the jurists of the lands agreed, namely Malik, al-Thawri, al-Awza'i, Abu Hanifa, al-Shafi'i, Ahmad, Abu Ubayd and Abu Thawr, that once the year has elapsed, the finder may eat it if he is poor or give it in charity if he is rich; if its owner comes, the latter chooses between approving the charity, in which case the finder keeps its reward, or imposing the guarantee on him.
They disputed the case of the rich man: may he eat it or spend it after the year? Malik and al-Shafi'i said that he may. Abu Hanifa said that he may neither eat it nor give it in charity; a view similar to his is related from Ali, Ibn Abbas and a group of the tabi'un. Al-Awza'i said: if it is substantial property, it is to be placed in the public treasury. A view similar to that of Malik and al-Shafi'i is related from Umar, Ibn Mas'ud, Ibn Umar and Aisha. All agree that if he eats it, he guarantees it to its owner, except the proponents of the literal meaning (the Zahiris).
Malik and al-Shafi'i deduced it from his saying (peace and blessings be upon him): "see to it", with no distinction between rich and poor. There is also what al-Bukhari and al-Tirmidhi related from Suwayd ibn Ghafla: I met Uways ibn Ka'b, who said: I found a pouch containing a hundred dinars and went to the Prophet (peace and blessings be upon him); he said: announce it for a year; I announced it without finding (the owner), then came back to him three times; he said:
Keep its container and its distinguishing marks; if its owner comes; otherwise enjoy it.Reported by al-Bukhari and al-Tirmidhi from Suwayd ibn Ghafla; al-Tirmidhi and Abu Dawud add: "spend it"
The cause of the disagreement is that the apparent wording of the luqata hadith clashes with the fundamental principle of the Law that a Muslim's property is licit only with his consent. Whoever gives precedence to this principle over the apparent wording of the hadith, namely his saying after the announcement "see to it", says that no disposal of it is permitted except charity alone, with a guarantee if the owner of the luqata does not approve the charity. Whoever gives precedence to the apparent wording of the hadith over this principle, considering it an exception, says that it becomes licit after the year, as one property among his properties, which he does not guarantee if the owner comes. Whoever takes the middle course says that he may dispose of it after the year even though it remains property under the regime of liability (Bidayat al-Mujtahid, 2/229-230).
If its owner comes after the finder has given it in charity: it was mentioned in the previous question that the finder who gives it in charity after the year may be made to guarantee it by the owner, by agreement, if he does not approve the charity.
The Hanafis said: if two men find the luqata, they announce it together and share its ruling; if the luqata slips from its finder's hand and another finds it, no lawsuit takes place between them, for the first one's hold was lifted. If they are both walking and one of them sees a luqata, and his companion says to him: "Give it to me", but he takes it for himself, it belongs to the taker, not to the one who ordered (al-Jawhara al-Nayyira, 4/191-192; al-Bahr al-Ra'iq, 5/164).
The Shafi'is said: if two men find a luqata and take it together, it is between the two of them after the announcement, as when they secure game. If they see it together and one of them rushes forward and takes it, it belongs to the one who took it, for the acquisition of the luqata takes place by taking, not by seeing, as in hunting. If one of them sees it and says to his companion: "Give it to me", and the other takes it: if he takes it for himself, he has the greater right, for acquisition takes place by taking; if he takes it for his companion who ordered him to take it, does it belong to the one who ordered? Two views exist, according to the two views on agency (wakala) in hunting and woodcutting.
If a man takes the luqata and it slips from him and another finds it, it is the second who announces it. If its owner comes and establishes evidence, restitution to him is obligatory on the part of the second, for he is its owner. If he does not find its owner but the first finder comes and establishes evidence of his picking it up, the second must return it to him, for the first established a right over it by his picking it up, as if he had claimed dead land.
If two men take the luqata and one of them waives his right of picking it up to the other, that right does not lapse, just as the finder may not transfer his right to another: they announce it and own it after the announcement. If each of the two establishes evidence that he is the finder, and no prior date distinguishes them, the two pieces of evidence conflict. If the luqata slips from its finder and another picks it up, the first has more right to it than the second, by priority, on the stronger view; it is said: for the second. If one orders another to pick up a luqata he sees and the latter takes it, it belongs to the one who ordered if the other intended him, even while carrying it himself; otherwise it belongs to the taker; this is not contradicted by what was said about the invalidity of agency in picking up in general, for that concerns picking up in general, whereas here it is a luqata already found: the order to take it is a mere assistance in grasping a specific thing (al-Bayan, 7/522; al-Najm al-Wahhaj, 6/44; Mughni al-Muhtaj, 3/521-522).
The Hanbalis said: if two men find the luqata, it is between the two of them, for they shared the cause and therefore share the ruling. If it slips from the one who found it and another finds it, it is returned to the first, for the right was established for him and its restitution becomes obligatory, like an ownership. If two men see it and one of them lifts it, it is his, according to the saying of the Prophet (peace and blessings be upon him):
Whoever gets ahead towards what no Muslim has got ahead to, it belongs to him.Reported by Abu Dawud
Likewise if one of them sees it, informs his companion and the latter takes it: it belongs to the taker, for the acquisition of the luqata takes place by taking, not by seeing, as in hunting. If two men see the luqata and one says to the other: "Bring it", and he takes it for himself, it belongs to the taker; if he takes it for the one who ordered, it belongs to the one who ordered, as if he had appointed him in hunting. It is mentioned in "al-Kafi" that it belongs to the one who lifted it, for agency is not valid in it. If two men pick it up and announce it for a year, they own it together; if we say that ownership is suspended upon choice and one of them chooses without the other, the one who chooses owns half of it, not the other (al-Mughni, 6/8; al-Kafi, 2/360; al-Mubdi', 5/283; al-Insaf, 6/416-417).
The jurists disputed the ruling of the luqata of the Haram: does it have a ruling different from that of the luqata of the profane land, such that it may be picked up only for safekeeping on behalf of its owner, and not for ownership? Or are they the same, so that picking it up is permitted both for ownership and for safekeeping? The majority of jurists, namely the Hanafis, the Malikis, the Shafi'is in one view and the Hanbalis in the madhhab, held that there is no difference between the luqata of the profane land and that of the Haram: it is treated like the latter, through the announcement and then ownership. The proof is the generality of the hadiths on picking up, with no distinction between the luqata of the profane land and that of the Haram; it is one of the two sanctuaries, resembling the sanctuary of Medina as regards picking up; and because it is a trust, its ruling does not change between the profane and the sacred land, like the deposit.
This was related from the mother of the believers Aisha (may Allah be pleased with her):
A woman asked Aisha and said to her: "I found a lost item in the Haram and I announced it, but I found no one to recognize it". Aisha said to her: "Benefit from it".Related by al-Tahawi in Sharh Ma'ani al-Athar (4/139) with an authentic chain
His saying (peace and blessings be upon him): "except for the one who announces", may mean: except the one who announces it permanently, lest it be thought that announcing during the pilgrimage season suffices, given the multitude of people at that time; the restriction aims at emphasis, not specification, like his saying (peace be upon him): "The lost property of the Muslim is a blazing fire", and the lost property of the dhimmi is measured by the same standard (Bada'i' al-Sana'i', 6/202-203; Sharh Ma'ani al-Athar, 4/140; al-'Inaya, 8/213; al-Ishraf 'ala nukat masa'il al-khilaf, 3/270-271, no. 1113; Sharh Sahih al-Bukhari by Ibn Batal, 6/557-558; al-Mughni, 6/11; Sharh al-Zarkashi, 2/217; al-Mubdi', 5/283-284; al-Insaf, 6/413-414; Sharh Muntaha al-Iradat, 4/300; Matalib Uli al-Nuha, 4/230; al-Ifsah, 2/64-65).
The Shafi'is in the madhhab, and the Hanbalis in a narration chosen by Ibn Taymiyya and Ibn al-Qayyim, held that it is not permitted to pick up the luqata of the Haram in order to own it: only keeping it for its owner is permitted. If he picks it up, he announces it permanently until its owner comes, according to the Prophet's prohibition (peace and blessings be upon him) of the pilgrim's luqata, related by Muslim (1724), and his saying in Mecca:
Its luqata is not licit, except for the one who announces.Reported by al-Bukhari (4059)
A narration states: "What is lost there is not licit, except for the one who announces" (al-Bukhari, 2302; Muslim, 1355), and the two Sahihs relate:
Allah has made this city sacred: its thorns are not cut, its game is not frightened, and its lost property is not picked up, except by the one who announces it.Reported by al-Bukhari (1510) and Muslim (1353)
His saying "its luqata is not licit, except for the one who announces" means that it is not licit to the one who wants to announce it for a year and then own it, as in the rest of the lands, but only to the one who announces it permanently without owning it. The Prophet (peace and blessings be upon him) thus distinguished it from others and informed that it is licit only for the announcement, not for benefiting from it, without fixing the announcement at a year as for the others, which indicates permanent announcement; otherwise the restriction would have no purpose.
Had the luqata of Mecca had the same ruling as others, his saying "its luqata is not licit, except for the one who announces" would not have carried the exclusive meaning specific to Mecca, like the other emphases of this hadith, for in other lands benefiting from it after the year is licit for the announcer as well; the whole tenor of the hadith thus indicates the specification of Mecca and the difference of its luqata from that of other lands, as it differs in everything mentioned in the hadith: it is sacred, not licit to anyone, not even for an hour of the day, after the Prophet (peace and blessings be upon him); its game is not frightened, its thorns are not cut, and the rest of its distinctive features: their blood and their property are not licit, and enslavement does not apply to them as to others.
Another proof is that the finder owns the luqata outside Mecca only after the year, in order to keep it for its owner and preserve it, for he cannot deliver it and fears its loss: he owns it and its value weighs upon his liability. The luqata of Mecca, by contrast, can be delivered to its master: if he is from Mecca, acquaintance brings him close; if he is a stranger who does not reside there, he returns there himself, or he can turn to someone from his land travelling to Mecca to have it identified, for it is frequented every year from all the lands. The luqata there being therefore exposed to permanent announcement, or the finder doubting that its claimant will find it and its master reach it: such is the difference between Mecca and the rest of the lands.
The meaning is that Mecca's sanctuary, honored by Allah, Most High, is a place of return for people, who come back to it again and again: its owner may return for it or send someone, as if his property were kept safe there, just as the blood money (diya) is aggravated there. Al-Khatib al-Shirbini said: the disagreement concerns the man of means; as for the one without means, his finder simply takes hold of it, though I see no one who has discussed it.
The luqata of Arafat and of the maqam of Ibrahim (the station of prayer) is not like the luqata of the Haram. Its announcement is certainly obligatory if it is picked up for safekeeping, according to the report mentioned. The finder must either carry out the announcement or hand it to the ruler (Mughni al-Muhtaj, 3/521; Sharh Sahih Muslim by al-Nawawi, 9/126; al-Najm al-Wahhaj, 6/43, 45; Tuhfat al-Muhtaj, 7/645; al-Dibaj, 2/565).
Al-Mawardi (may Allah have mercy on him) said: there are two interpretations of the announcer (munshid). The first, which is the view of Abu Ubayd: it is its owner who seeks it, the claimant (nashid) being the announcer, that is, the finder, as the poet said: "He sharpens his hearing for the cry, as the claimant sharpens his hearing for the announcer". It is as if the Prophet (peace and blessings be upon him) had said: no one may own it except its owner, to whom it belongs, not the finder.
The second interpretation, which is the view of al-Shafi'i: the announcer is the finding announcer, and the claimant is the owner who seeks it. It is related that the Prophet (peace and blessings be upon him) heard a man announcing a lost item in the mosque and said: "You who claim, it is not you who found it", meaning: would that you had not found it, as an invocation against him. According to this interpretation, his saying "its luqata is not licit, except for the one who announces" means: except for the announcer who persists in announcing it without owning it. In both interpretations there is thus a proof against taking ownership; and because Mecca, differing from others in the prohibition of its game and its trees so as to aggravate its sanctity, differs from them also in owning the luqata; and because the one who leaves Mecca usually returns only after a year, its announcement did not spread through all the lands, hence the obligation of permanent announcement; and there is no difference between Mecca and the rest of the sanctuary, all being equal in sanctity (al-Hawi al-kabir, 8/5).
Imam Ibn al-Qayyim (may Allah have mercy on him) said: his saying: "Its lost property is not picked up, except by the one who announces it", and in a wording: "what is lost there is not licit, except for the one who announces", is a proof that the luqata of the Haram is never owned and is picked up only for the announcement, not for ownership; otherwise the specification of Mecca would be devoid of any purpose. This is the correct view and the hadith is explicit in it: the announcer is the one who announces, the claimant the one who seeks, hence the poet's phrase: "the claimant's sharpened hearing for the announcer". Abu Dawud related in his Sunan that the Prophet (peace and blessings be upon him) prohibited the pilgrim's luqata, and Ibn Wahb said: it means that he leaves it until its owner finds it.
Our shaykh (Ibn Taymiyya) said: this is one of the distinctive features of Mecca, and the difference with the rest of the lands is that people scatter from it to various countries, so that the owner of the lost item cannot search for it and ask about it, unlike other lands (Zad al-Ma'ad, 3/453-454; see also: Sharh Sahih al-Bukhari by Ibn Batal, 6/557-558; al-Mughni, 6/11; Sharh al-Zarkashi, 2/217; al-Mubdi', 5/283-284; al-Insaf, 6/413-414; Sharh Muntaha al-Iradat, 4/300; Matalib Uli al-Nuha, 4/230; Bidayat al-Mujtahid, 2/229; al-Ifsah, 2/64-65).
The second pillar is the finder. The jurists agreed that picking up is valid on the part of the free, Muslim, adult, sane person who is not under legal interdiction for prodigality. They disputed the case of the dhimmi, the apostate, the child, the insane and the prodigal: is their picking valid or not? The cause of their disagreement is whether what predominates in the luqata is trust and guardianship, in which case their picking would be invalid, or gain, in which case their picking would be valid.
The majority of jurists, namely the Hanafis, the Shafi'is in the madhhab according to them and the Hanbalis, held that picking up is valid on the part of any human being, Muslim or unbeliever, adult or not, sane or insane, free or slave; the Hanafis, however, excepted the insane. The Hanafis said: the picking of the child and the slave is valid, and the announcement falls to the child's guardian. The picking of the unbeliever and the apostate is also valid, so that the rulings of the announcement, then of the charity or the benefit, are established. The condition is that he be sane: the picking of the insane is not valid, nor that of the mentally deficient according to one view. The benefit of the invalidity of the insane person's picking and the like is that after his recovery he may not take back what the one who took it from him took (al-Bahr al-Ra'iq, 5/162; Hashiyat Ibn Abidin, 4/277-278).
The Shafi'is in the madhhab said: picking up is valid on the part of the open sinner, the apostate, the prodigal, the child, the insane and the dhimmi in the abode of Islam, and, in the same sense, the protected resident (musta'man) and the holder of a treaty (mu'ahad), like their hunting and woodcutting; for what predominates is the meaning of gain, the outcome of the matter, not trust and guardianship. As for the belligerent who finds it in the abode of Islam, it is seized from him without dispute, and whoever takes it from him may announce it and own it; it is said that it is spoils for the Muslims.
As for the apostate, his luqata is returned to the Imam and constitutes fay' if he dies an apostate; if he embraces Islam, his ruling is that of the Muslim. The judge seizes the luqata from the open sinner, and likewise from the unbeliever, and places it with a just supervisor, on the apparent view, for the property of his own child cannot remain in his hand, let alone the property of strangers. The second view (not seizing it): no, for he has the right of ownership, if his hidden state is secure, but a just supervisor is joined to him; the supervisor's fee, on both views, is charged to the public treasury, and failing that, to the sinful finder.
The more apparent view is that his announcement is not relied upon: a just watcher is joined to him, for fear of negligence in the announcement. The second: his announcement is relied upon without a watcher, for he is the finder and the expense of the announcement is on him on both views. The guardian must seize the luqata of the child, the insane and the prodigal, for their right and the owners' right, as he seizes their property; his hand stands in for theirs as it does for their property. The guardian announces it not out of the child's, the insane's or the prodigal's property, but refers the matter to the ruler to sell part of the luqata for the expense of the announcement.
The announcement of the child and the insane is not valid; that of the prodigal is valid, with his guardian's permission. The guardian takes ownership of it for the child and his like if he sees benefit in it, insofar as a loan may be contracted for him, for ownership falls within the meaning of the loan; if he sees no benefit, he keeps it as a trust or hands it to the judge. The guardian guarantees it if he falls short in wresting it until it perishes in the child's hand and the hand of those mentioned with him, or if one of them destroys it through his negligence, like one who fails to safeguard the wood he has cut.
If he did not fall short in wresting it, the child and those mentioned with him guarantee wilful destruction, not loss without negligence; the destroyer pays the guaranteed equivalent, and the value is owned by the child and his like after the ruler's taking possession. If the guardian knew nothing of it until the child reached majority, the insane recovered his mind or the prodigal became prudent, it is as if he had found it after the lifting of the interdiction, whether he asked the ruler's permission and the ruler confirmed it in his hand or not.
The more apparent view is the invalidity of the slave's picking up if his master neither permitted him nor forbade him, for the luqata is initially trust and guardianship and, in the end, ownership, and the slave belongs to neither of these two categories. The second view: its validity, and it belongs to his master, like his woodcutting and hunting; if he permits him, saying for instance: "Whenever you find a luqata, bring it to me", its validity is certain; if he forbids him, it is certainly prevented (Rawdat al-Talibin, 4/203; Kanz al-Raghibin, 3/283-284; al-Najm al-Wahhaj, 6/11-12; Mughni al-Muhtaj, 3/505-506; al-Dibaj, 2/551-552).
Ibn Qudama (may Allah have mercy on him) said, in a question: "If the one who found the luqata is prodigal or a child, his guardian carries out the announcement; if the year is completed, he adds it to the finder's property". In sum: the child, the insane and the prodigal, if one of them picks up a luqata, his hold is established over it, by the generality of the reports and because it is a gain valid on his part, like hunting and woodcutting; if it perishes in his hand without negligence, no liability rests on him, for he took what was his to take; if it perishes through his negligence, he guarantees it from his property.
When his guardian learns of it, he must take it, for the finder is not among those fit to keep and be trusted: if he leaves it in his hand, he guarantees it, for he must safeguard what the child's right attaches to, and this property touches his right; if he leaves it in his hand, he is squandering it. When the guardian takes it, he announces it, for the finder is not among those fit to announce; when the announcement period elapses, it enters the finder's ownership, for the cause of ownership is complete, and ownership is established for him as if he had hunted game. This is al-Shafi'i's madhhab; his companions, however, said that if the announcement period elapses and the child and the insane have reached the stage at which loans may be contracted for them, he owns it for them; otherwise not. Some said that he owns it for them in every case, for it is apparently unlikely that the owner will appear, and his taking ownership is beneficial.
Our argument is the generality of the reports; and if this were ruled like the loan, the picking of the child, for whom the loan is not permitted, would not be valid, for it would be volunteering to safeguard another's property with no benefit. Ahmad said, in the narration of al-Abbas ibn Musa, concerning a boy of ten who had picked up a luqata and then grown up: if he finds its owner, he hands it to him; otherwise he gives it in charity: the announcement term had already run during the previous years, and he is not asked to start the term over. He also said he had heard him, before or after, say about the elapsing of the announcement term: if he does not find its owner, does he give another's property in charity? This question resembles the case of the one who did not announce the luqata during its year: he does not own it even if he announces it afterwards, for the later announcement apparently has no effect, its owner having despaired of it and stopped seeking it.
This question indicates that abandoning the announcement for an excuse counts as abandoning it without excuse, the child being among those excused; we mentioned two views on this above. Ahmad said concerning a boy who had not yet reached ten, who found ten dinars, took them home and lost them, and who, once grown, wished to return them without knowing their owner: let him give them in charity; if he cannot find ten dinars and it weighs on him, let him give little by little. The Qadi said: this means that it perished through the child's negligence, namely that he did not inform his guardian so that he would carry out the announcement.
If the slave finds a luqata, he is entitled to take it without his master's permission and his picking is valid: Abu Hanifa said so, and it is one of al-Shafi'i's two views. In the second view, his picking is not valid, for the luqata, during the first year, is a trust of guardianship and, in the second, an ownership, and the slave belongs neither to the people of guardianships nor to those of ownership. Our argument is the generality of the report, and because picking up is a cause through which the child owns and which is valid on his part, it is valid on the part of the slave, like woodcutting and hunting; and because whoever may accept a deposit, his picking is valid, like the free man.
The dhimmi, as regards picking up, is like the Muslim; some of al-Shafi'i's companions said that he has no right to pick up in the abode of Islam, for he is not among those in whom trust can be placed. Our argument is that it is a kind of gain to which he belongs, like woodcutting and hunting; and what they mentioned is invalidated by the child and the insane, whose picking is valid despite the absence of trust. This being established, if he announces it for a year, he owns it like the Muslim; if the ruler or the sultan learns of it, he confirms it in his hand and joins to him a just man who watches over it and announces it, for we do not trust the unbeliever to announce it nor to fulfil any of the obligations he bears in this respect; the supervisor's fee is on him. When the year of announcement is complete, the finder owns it; it is also possible that it be wrested from the dhimmi's hand and placed with a just man, for he is not trustworthy in its regard (al-Mughni, 6/25-27).
As for the Malikis, Ibn Rushd (may Allah have mercy on him) said: the finder is every free, adult Muslim, for it is a matter of guardianship (Bidayat al-Mujtahid, 2/229).
The third pillar is the found item (al-multaqat), which divides into two categories: an animal, and an inanimate body other than an animal. The animal divides into three types: a type whose picking up is valid by consensus; a type whose picking up for ownership is not valid according to the majority of jurists, contrary to the Hanafis; and a disputed type, which belongs to one or the other.
The first type is what may validly be picked up: the luqata of sheep and every animal that cannot defend itself. The jurists of the four schools agreed on the validity of picking up sheep in the wilderness, except for a narration related from Ahmad. Imam Ibn Hubayra (may Allah have mercy on him) said: they agreed that picking up sheep is licit, except for a narration from Ahmad according to which picking them up is not allowed (al-Ifsah, 2/64). Imam Ibn Qudama (may Allah have mercy on him) said, in a question: "If he finds the ewe in a town or in a place of perdition, it is a luqata", meaning that he is permitted to take it and pick it up; its ruling, once taken, is that of gold and silver as regards the announcement and the ownership after it; this is the correct view of Ahmad's madhhab and of most of the people of knowledge.
Ibn Abd al-Barr said: they agreed that the sheep lost in the place feared for her may be eaten by him. The same ruling applies to every animal that cannot defend itself among the young of the predatory beasts: the fox, the jackal, the wolf and the lion cub, and the like; what cannot defend itself among them, such as camel calves, calves of cattle, foals, chickens, geese and the like, may be picked up. Another narration is related from Ahmad: none but the Imam may pick them up. Al-Layth ibn Sa'd said: I do not like it to remain with him unless he secures it for its owner, according to the saying of the Messenger of Allah (peace and blessings be upon him): "No one takes charge of a lost item except one who will bear its loss", and because it is an animal resembling camels (authentic hadith: related by Abu Dawud (1702), Ibn Majah (2503), Ahmad (4/360, 362) and others from Jarir ibn Abdallah; and Muslim (1725) from Zayd ibn Khalid al-Juhani with the wording: "Whoever takes charge of a lost item remains liable for its loss until he announces it").
Our argument is the saying of the Prophet (peace and blessings be upon him) when he was asked about the ewe: "Take it; it is only for you, for your brother or for the wolf", agreed upon by the two; for her perishing and straying are feared, so that she resembles the luqata other than animals. Our hadith is more specific than theirs, so we specify by it. The analogy with camels is invalid, for the Prophet (peace and blessings be upon him) justified the prohibition of picking them up by the fact that they have their sandals and their water-skin, which is absent in sheep; and the Prophet distinguished between the two in a single report, so that it is not permitted to conjoin what the Lawgiver distinguished, nor to reason from what he commanded to pick up to what he forbade (al-Mughni, 6/28).
The majority of the people of knowledge deduced the lawfulness of picking up the stray sheep from the report of the two Sahihs 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; he said: "Describe its distinguishing marks and its container, then announce it for a year; if its owner comes; otherwise see to it". He said: and the stray sheep? He said: "It is yours, or your brother's, or the wolf's". He said: and the stray camel? He said: "What have you to do with it? It has its water and its sandals: it drinks and browses on the trees until its master meets it".Reported by al-Bukhari (2297) and Muslim (1722)
The difference between it and the stray camel is that the camel protects itself from the wild beast that wants it, lives on its own, manages to drink from the ghadir (the pool left behind by the flood; al-Qamus al-Muhit, 2/100) and eats from the trees, so that the fear of its perishing is remote, and its owner may come and find it. It is not so with the stray sheep: it does not live on its own, cannot drink from the ghadir, and cannot ward off the wild beast and the predator; its perishing was so preponderant that it would perish even without being taken (al-Ma'una, 2/225).
The jurists of the four schools agreed that if the finder finds the stray sheep in the place feared for her, he may eat her. Imam Ibn Hubayra (may Allah have mercy on him) said: they agreed that the finder of the stray sheep in the feared place may eat her (al-Ifsah, 2/60). Ibn Rushd (may Allah have mercy on him) said: the scholars agreed that the finder of the stray sheep in the barren place far from habitation may eat her, according to his saying (peace be upon him) about the ewe: "It is yours, or your brother's, or the wolf's" (Bidayat al-Mujtahid, 2/230-231). Ibn Abd al-Barr (may Allah have mercy on him) said: they agreed that the sheep lost in the feared place may be eaten by him (al-Tammhid, 3/108; al-Istidhkar, 7/245). Ibn Qudama said: the same applies to every animal that cannot defend itself among the young of the predators: the fox, the jackal, the wolf, the lion cub and the like; what cannot defend itself among them, such as camel calves, calves of cattle, foals (the young of horses), chickens, geese and the like, may be picked up (al-Mughni, 6/28).
The jurists nevertheless disputed: is this ruling specific to the one who finds her in the desert, the wilderness and the deadly places, or is it general absolutely, whether in the inhabited lands or in the desert? Malik, Abu Ubayd and Ibn al-Mundhir held that this ruling is specific to the one who finds her in a place of perdition. As for the one who finds her in the inhabited lands, or near a village, or in a place from which he can take her along, he is not permitted to take her, for he can keep her safe for her owner without hardship: destroying her is therefore not permitted, and she has a value in the place where he found her; and because the Prophet (peace and blessings be upon him) said: "It is yours, or your brother's, or the wolf's", and the wolf is not found in the inhabited lands.
It is stated in "al-Mudawwana al-kubra": I was asked about the one who picks up a ewe in the open wastes of the land or between the encampments. I asked Malik about the stray sheep that a man finds; Malik said: what is found near the villages, he does not eat it, but carries it to the nearest village and announces it there. What is found in the open wastes and the deserts, he eats it and does not announce it; if its owner comes, he owes him none of its price, little or much. Malik also said: do you not see that the Prophet (peace and blessings be upon him) said in the hadith: "It is yours, or your brother's, or the wolf's"? (al-Mudawwana al-kubra, 15/175; al-Ma'una, 2/225).
The majority of the jurists, namely the Hanafis, the Shafi'is and the Hanbalis, held that there is no difference between finding her in the inhabited lands or in a place of perdition, for the Prophet (peace and blessings be upon him) said: "Take it", without distinguishing or asking for details; had the circumstances differed, he would have asked or asked for details; and because she is a luqata, the inhabited land and the desert are equal in her regard, as for the other luqatas. The Hanafis, however, conditioned it upon the fear of her perishing or straying, such as the lion or the thieves being in the land; if she is safe from perishing, he does not take her (al-Jawhara al-Nayyira, 4/193; Mughni al-Muhtaj, 3/510; al-Mughni, 6/28). Ibn Qudama said: their statement that the wolf is found only in the desert, we say: her being the wolf's in the desert does not prevent her being another's in the inhabited lands.
The jurists disputed: must he guarantee its value to its owner if he eats her, or not? This has two situations, after their consensus that if her owner comes before the finder eats her, he takes her from him (Sharh Sahih al-Bukhari by Ibn Batal, 6/551). The first situation: he finds her in the desert or a place of perdition. The majority of the people of knowledge, namely the Hanafis, Sahnun, Ibn Abd al-Barr among the Malikis, the Shafi'is, the Hanbalis and others, held that when he intends to eat her, he preserves her description: when her owner comes, he guarantees her value to him.
The proof is the saying of the Prophet (peace and blessings be upon him) in the hadith of Abdallah ibn Umar: "O Messenger of Allah, what do you say about the stray sheep?" He said:
Food to be eaten: yours, your brother's, or the wolf's. Keep the stray item for your brother.Reported by al-Bayhaqi (11848), al-Dar al-Qutni (4627) and al-Tahawi (Sharh Mushkil al-Athar, 12/159)
It contains a proof that the ewe remains her master's property; she is a luqata with a value, and the soul follows her, so that her indemnity becomes obligatory to her owner when he comes, as with any other; and because she is her master's property, it is not permitted to take ownership of her without compensation and without his consent, as if she were between buildings; and because she is property whose restitution is obligatory as long as she survives, her indemnity is therefore obligatory if he destroys her, like the luqata of gold. His saying "It is yours" does not prevent the obligation of her indemnity: he permitted, in the luqata of gold and silver after the announcement, eating and spending it, saying: "as with the rest of your property", and then we agreed on the obligation of its indemnity; likewise the ewe.
His saying "It is yours, or your brother's, or the wolf's" does not carry the meaning of transfer of ownership: when he says "or the wolf's", ownership is not meant, for the wolf does not own; it only eats her on her master's property and settles for the reward of the one stricken by her loss. Likewise the finder: if he eats her, he eats her on her master's property, and if he comes, he guarantees her to him. The scholars agreed that if her owner comes before the finder eats her, he is entitled to take her from him; likewise if he slaughters her, he takes her slaughtered; likewise if he eats part of her, he takes what remains of her: a proof that she is on her master's property in the open wastes and elsewhere, and that his ownership does not cease except by a similar consensus. There is no difference between his saying about the ewe "It is yours, or your brother's, or the wolf's" and his saying about the luqata "see to it"; rather the latter is more akin to transfer of ownership, for he did not associate the wolf or any other in the wording of ownership.
Ibn Abd al-Barr (may Allah have mercy on him) said: the scholars of the Muslims agreed, concerning the luqata, that the finder guarantees its value if he consumes it after the year and its owner comes claiming it; the ewe is all the more bound to it by analogy and consideration. Some of our later companions compared the ewe found in the open wastes to buried treasure (rikaz): this is great heedlessness, for no ownership was ever established over the rikaz before its finder, whereas the ewe is the valid, consensual property of her master, whose ownership does not cease except by a similar consensus or a sunna without ambiguity; this being absent from this question, the guarantee becomes obligatory. Sahnun said in "al-Mustakhraja": if the finder, in the open wastes, eats the ewe or gives it in charity and her owner then comes, he guarantees it to him; this is the correct view, and success is granted by Allah (al-Istidhkar, 7/253; Sharh Sahih al-Bukhari by Ibn Batal, 6/550-551; Fath al-Bari, 5/83; al-Mughni, 6/28, 30; Manar al-Sabil, 2/303-304).
The Malikis, on the famous view, held that if he finds her in the desert and cannot transport her to the inhabited lands, eating her is permitted, with no indemnity to her owner and no announcement; according to the saying of the Prophet (peace and blessings be upon him): "It is yours, or your brother's, or the wolf's", and in a narration: "Take it; it is only for you, or your brother's, or the wolf's", a clarification indicating that she falls under the ruling of the perishable, which excludes any liability attaching to her; and because, taking her being permitted without his being charged with driving her, it is not permitted to impose the guarantee on him; and because the guarantee applies only to what has a value during its existence after the announcement, so that only the dropping of the guarantee remains. Neither announcement nor indemnity was required of him, for he equated him with the wolf, which neither announces nor guarantees.
If transporting her is easy, he must transport her and announce her. If he carries her alive, the announcement is obligatory on him, and the expense of carrying falls on her master; if he carries her slaughtered, her master has the greater right to her if he learns of it before eating, and the expense of carrying falls on the finder (al-Ishraf, 3/269-270, no. 1112; al-Ma'una, 2/226; al-Taj wa-l-Iklil, 5/40-41; Tahbir al-Mukhtasar, 5/41; Sharh al-Zarqani, 4/66; al-Sharh al-kabir with Hashiyat al-Dasuqi, 5/530-531).
Ibn Rushd (may Allah have mercy on him) said: the scholars agreed that the finder of the stray sheep in the barren place far from habitation may eat her, according to his saying (peace be upon him) about the ewe: "It is yours, or your brother's, or the wolf's". They disputed: does he guarantee her value to her owner or not? The majority of the scholars said that he guarantees her value, while Malik, in the most famous reports from him, said that he does not guarantee her.
The cause of the disagreement is the opposition of the apparent wording, as we said, to the known principle of the Law; Malik here gave precedence to the apparent wording and followed its ruling. Likewise, disposal of what requires announcement after the year is not permitted, given the strength of the wording here. Another narration is related from him: he guarantees it; and the same applies to every food that does not keep when its perishing is feared if it is left (Bidayat al-Mujtahid, 2/230-231).
Ibn Batal said: Malik's proof is that the Prophet (peace and blessings be upon him) permitted eating the ewe, established that the one who finds her stands in her master's place, and said: "yours, your brother's, or the wolf's". If he eats her, therefore, by the Prophet's permission (peace and blessings be upon him), he cannot be charged an indemnity a second time without proof from the Book, the sunna or consensus. They said: this is a foundation for every found food that does not keep and spoils quickly: whoever finds it eats it if he cannot announce it and does not guarantee it, for it is in the sense of the ewe, and the ewe falls under the ruling of the permitted thing with no value. Do you not see that the Prophet (peace be upon him) found a date and said: "Were it not that I fear it is from charity, I would have eaten it"?