Islamic Fiqh > Endowments (waqf) and property > Easements and neighbor rights
Passages, waters, party walls, views and nuisances: the neighborhood's real rights set by fiqh around the harm rule.
Contents
Updated on 06 October 2026 at 10:50 PM
These six sheets from the Encyclopedia of Islamic jurisprudence (al-Mawsua al-fiqhiyya) complete the chapter on the reserved perimeter (harim) that protects wells, rivers and springs: reviving what belongs to already developed land, reviving dead land by the non-Muslim under covenant (dhimmi), the pastoral reserves (hima) established by the caliphs and by the Imam's deputies, compensation for grazing, herbage growing on owned land, then preventing someone from working without detention and the acts of the usurper. Every school position is given with its evidence, its classical references and, where applicable, the verdict passed on the hadiths.
Ibn Rushd reported, in the "Drawing of dwellings from the hearing of Yahya" of the Book of dams and canals (as-sadd wa-l-anhar), these words: the limit of what lies far from developed land, and which belongs to whoever revives it without the Imam's permission, is the extent reached by the expansion of development and by the wood-cutting of the firewood gatherers when they return to spend the night at their places of development (Mawahib al-Jalil, 7/467; Hashiyat al-Sawi, 9/125).
Reviving what belonged to the facilities of developed land: the jurists do not disagree that what was part of the facilities of developed land and its interests may not be appropriated by revival.
Ibn Qudama said: whatever is close to developed land and tied to its interests, such as its roads, the channel of its water, its refuse dump, its earth-dumping place and its tools, may not be revived without disagreement within the school; likewise what is tied to the village's interests, such as its courtyard (fina'), the pasture of its livestock, its firewood area, its roads and its water channel: it is not owned by revival, and we know of no disagreement among the people of knowledge on this. The same applies to the harim of the well, the river, the spring and every owned property: what is tied to its interests may not be revived, because of the saying of the Prophet (peace and blessings be upon him):
"Whoever revives dead land while it is not rightfully a Muslim's, it belongs to him."
Hadith cited by Ibn Qudama in al-Mughni (5/330)
The implication of this hadith is that whatever a Muslim's right attaches to is not owned by revival, and this also because it follows the owned property: were we to allow its revival, ownership in developed land would be annulled against its people. Al-Qadi mentioned that these facilities are not owned by the one who revives, but he has more right to them than others, because the revival that is the cause of ownership was not exercised upon them (al-Mughni, 5/330; see also Kashshaf al-Qina', 4/227; al-Bayan, 479 and 481; Rawdat al-Talibin, 4/104; Kanz al-Raghibin, 3/217; al-Najm al-Wahhaj, 5/411 and 413; Mughni al-Muhtaj, 3/429).
The jurists agreed that the revival in question concerns the Muslim alone; they differed over the dhimmi: is he allowed to revive dead land and share with the Muslim the ruling of revival, or is revival specific to the Muslim to the exclusion of the dhimmi?
The majority of jurists, namely the Hanafis, the Malikis and the Hanbalis according to the school, held that there is no difference between the Muslim and the dhimmi in reviving dead land: the dhimmi may therefore revive it, by virtue of the generality of the saying of the Prophet (peace and blessings be upon him):
"Whoever revives dead land, it belongs to him."
Authentic hadith, reported by Abu Dawud (3073), al-Tirmidhi (1378) and al-Nasa'i in al-Kubra (5761)
and because it is one of the channels of ownership in which the Muslim and the dhimmi are partners as in its other channels; because the dhimmi belongs to the abode of Islam, whose rulings apply to him and where he owns as he owns by purchase: he holds its free goods, its herbage, its firewood, its game, its buried treasures (rikaz), its minerals and lost property, all of these being among the facilities of the abode of Islam; and because revival is a cause of ownership in which the Muslim and the dhimmi are equal as in the other causes (al-Hidaya, 4/99; al-Ikhtiyar, 3/83; Mukhtasar al-Waqaya, 2/200; al-Jawhara al-Nayyira, 4/222; al-Lubab, 1/682; al-Ishraf ala nukat masa'il al-khilaf, 3/240, no. 1087; al-Muntaqa, 6/29; al-Sharh al-Kabir with the Hashiya of al-Dasuqi, 5/444; Tathbir al-Mukhtasar, 4/628-629; Hashiyat al-Sawi, 9/125; al-Mughni, 5/329-330; al-Sharh al-Kabir, 6/150).
He may nevertheless not revive in the Arabian Peninsula, even if the Imam permits him according to the Malikis, because he has no residence there; likewise, what is close to developed areas may not be revived by him even with the Imam's permission, while what lies far from them may be revived without the Imam's permission (al-Ishraf, 3/240, no. 1087; al-Muntaqa, 6/29; al-Sharh al-Kabir with the Hashiya of al-Dasuqi, 5/444; Tathbir al-Mukhtasar, 4/628-629; Hashiyat al-Sawi, 9/125).
This position rests on what is reported from Ibn Abbas (may Allah be pleased with him and his father):
"The wasteland belongs to Allah, to His Messenger, and then to you; whoever revives any of the earth's dead land is most entitled to it."
Reported by Ibn Abi Shayba in his Musannaf (4/487, no. 22385) and al-Bayhaqi in al-Kubra (6/143, no. 11565)
It is also reported, from Tawus from the Prophet (peace and blessings be upon him), that he said:
"The wasteland belongs to Allah and to His Messenger, then afterwards it is yours."
Weak hadith, reported by Abu Ubayd in al-Amwal (674) and al-Bayhaqi in al-Kubra (11564)
The point of the report is that the Prophet (peace and blessings be upon him) attributed dead land to Allah not because He owns it, He who owns it and everything else, but to honor it, because it is acquired without compensation and without a previous owner, just as he attributed the fifth of the spoils to Allah for its honor, it too acquired without compensation and without an owner, by the word of Allah (exalted):
"Know that whatever spoils you acquire, one fifth belongs to Allah."
Surah Al-Anfal, 41
Just as the disbeliever has no right to the fifth of the spoils, he has none to dead land in the territories of Islam; and if zakat was not attributed to Allah, it is because it is the people's dirt. Then he said: "then afterwards it is yours", which is addressed to the Muslims.
Even if the Imam permits him, he does not become its owner, for that would be an act of dominance (isti'la') and he has no right to dominate in the abode of Islam; the Muslim may take it from him and become its owner by reviving it, whether or not the Imam permits him. If a standing crop belonging to him is there, such as sown fields, the Muslim returns it to him; if he turns away from it, it goes to the public treasury (bayt al-mal), no one may dispose of it, and no wage is owed to him for the period of his revival, because it belongs to no one.
But he, like the musta'min (the foreigner under temporary safeguard), may gather firewood, pick herbage, hunt and move soil (al-Bayan, 7/481; Rawdat al-Talibin, 4/98; al-Najm al-Wahhaj, 5/409; Kanz al-Raghibin, 3/214; Mughni al-Muhtaj, 3/427; Tathbir al-Mukhtasar, 4/629; al-Insaf, 6/358).
What the caliph reserves for himself or for the Muslims. What he reserved for himself: the Muslims do not disagree on its prohibition, unlike the Prophet's (peace and blessings be upon him) reservation for himself, because his welfare redounds to the welfare of the Muslims and his wealth he would distribute among them; he therefore differs from the imams in this. It is also one of the privileges peculiar to the Prophet (peace and blessings be upon him) to reserve for himself, to the exclusion of the imams.
What the imams reserved for the Muslims after the Prophet (peace and blessings be upon him) divided the jurists. The Shafi'is, in the view contrary to the apparent (muqabil al-zahir), hold that the reservation is not permitted, by virtue of the narration of Mujahid from Ibn Abbas, who said that the Messenger of Allah (peace and blessings be upon him) said:
"Muslims are partners in three things: water, pasture and fire, and their price is unlawful."
Weak hadith, reported by Ahmad in his Musnad (23132), Ibn Majah (2472, its wording is his) and al-Bayhaqi in al-Kubra (11612)
and by virtue of what Ibn Abbas (may Allah be pleased with them both) reported, that al-Sa'b ibn Juththama (may Allah be pleased with him) said that the Messenger of Allah (peace and blessings be upon him) said:
"There is no reserve (hima) except for Allah and His Messenger."
Reported by al-Bukhari (2241)
that is, no one is entitled to reserve for the Muslims anything other than what the Prophet (peace and blessings be upon him) reserved (al-Hawi al-Kabir, 7/483-484; al-Muhadhdhab, 1/427; al-Bayan, 7/498 and 500; Rawdat al-Talibin, 4/109-110; Asna al-Matalib, 2/449; al-Najm al-Wahhaj, 5/423-424; Mughni al-Muhtaj, 3/438; Fath al-Bari, 5/44).
The majority of jurists, namely the Hanafis, the Malikis, the Shafi'is in the apparent view and the Hanbalis, hold that the Imam may reserve dead land for the Muslims: pastures where the horses of the fighters (mujahidin) graze, the animals of the jizya, the she-camels of the alms (sadaqa), the stray animals of the people whose safekeeping the Imam ensures, and the livestock of the weak, without harming the rest of the people.
By virtue of the fact that Abu Bakr (may Allah be pleased with him) reserved al-Rabadha for the she-camels of the sadaqa, installing his client Abu Usama over it, Qurta ibn Malik also being placed in charge, and that Omar ibn al-Khattab (may Allah be pleased with him) reserved al-Sharaf, drawing from it the equivalent of what Abu Bakr had reserved at al-Rabadha.
Amir ibn Abdallah ibn al-Zubayr reported from his father, who said:
A Bedouin from Najd came to Omar and said: "O Commander of the Faithful, our land: we fought over it in the Jahiliyya and we embraced Islam over it; why then do you reserve it? Omar lowered his head, blowing and twirling his moustache, for when a matter displeased him he would twirl his moustache and blow. When the Bedouin saw his state, he repeated his request. Omar said: "Wealth is the wealth of Allah and the servants are the servants of Allah.
Were it not for the burden I carry in the path of Allah, I would not reserve a hand-span of land. (Reported by Abu Ubayd in al-Amwal, 742)
Malik said: I was informed that he levied each year (a tax) on forty thousand young she-camels (udhur), and he said once: from the horses.
Zayd ibn Aslam reported from his father that Omar ibn al-Khattab (may Allah be pleased with him) installed one of his clients named Hunayy as keeper of the hima and said to him:
"O Hunayy, fold your wing toward the people and beware of the supplication of the oppressed, for the supplication of the oppressed is answered. Admit the owner of the surayma and the owner of the ghunayma, and beware of me, and of the flocks of Ibn Awf and Ibn Affan: if they lose their livestock they return to date palms and fields; but the owner of the surayma and of the ghunayma, if his flock perishes, comes with his children crying: 'O Commander of the Faithful! O Commander of the Faithful! Shall I leave them, I (may you lose your father)!
Water and pasture are easier for me to part with than gold and silver. By Allah, they see well that I have wronged them. It is their land and their water: they fought over it in the Jahiliyya and embraced Islam over it. By Him in whose hand is my soul, were it not for the wealth I levy in the path of Allah, I would not reserve a hand-span of their land.'"
Authentic hadith, reported by Malik in al-Muwatta (1822). Al-Imrani (in al-Bayan, 7/500) explains the words "admit the owner of the surayma and of the ghunayma" by the fact that the weak are not prevented from this hima: the surayma is the diminutive of sirma, denoting what ranges from ten to thirty camels, while what is below ten is called dha'ud; the ghunayma is the diminutive of ghanam, the sheep. As for the words "and beware of the flocks of Ibn Affan and Ibn Awf", they mean not admitting them into the hima, because both are rich and the loss of their livestock does not harm them.
And because whatever concerns the interests of the Muslims, the imams assume in it the standing of the Messenger of Allah (peace and blessings be upon him), by virtue of what is reported from the Prophet (peace and blessings be upon him):
"When Allah feeds a prophet a meal, it belongs to the one who stands after him."
Good (hasan) hadith, reported by Abu Dawud (2975) and Ahmad (14)
Othman (may Allah be pleased with him) did likewise, and this spread among the Companions of the Prophet (peace and blessings be upon him) without anyone disapproving of them: it therefore amounts to a consensus. And because whoever holds the governorship of the public treasury may reserve dead land, its origin being the Prophet (peace and blessings be upon him); and because what the Prophet (peace and blessings be upon him) withheld for the needs of the treasury is permitted to the Imam, such as the herbage growing on the treasury's lands; and because whoever is permitted to grant land (iqtā') is permitted to reserve, its origin being the Prophet (peace and blessings be upon him); and because every act permitted to the Prophet (peace and blessings be upon him) with regard to the Muslims' interests is permitted to the Imam, its origin being the iqtā'.
As for the saying of the Prophet (peace and blessings be upon him) "Muslims are partners in three things", it is a general statement from which the hima has been excepted, the Muslims remaining partners in the hima: its benefit redounds to all of them, poor and rich alike; the poor because it is the pasture of their alms, the rich for the horses of the mujahidin who fight on their behalf. When he reserves it, it belongs to them, and its benefit reaches their community: this does not preclude the partnership.
As for his saying (peace and blessings be upon him) "no hima except for Allah", its meaning is: no hima except after the manner of what Allah and His Messenger reserved, for the poor and destitute and for the interests of all the Muslims, not as they did in the Jahiliyya, when the strongest among them reserved a hima for himself alone, like Kulayb ibn Wail: he would come to Kalb from a raised part of the land, seek their support, and then, with their backing, reserve all that his spear reached in every direction, sharing the remainder with the people; this became the cause of his death.
If the hima harms the Muslims altogether, including their rich, because of the constriction of pasture created by reserving most of the dead land, it is not permitted: it is only allowed where there is benefit in what is reserved, and it is not part of the benefit to inflict harm on the greater number of people (al-Tajrid of al-Quduri, 8/3760 and 3765; al-Bunaya, 12/293; al-Ishraf, 3/241, no. 1088; Mawahib al-Jalil, 7/455-456; al-Taj wa-l-Iklil, 4/548; Tathbir al-Mukhtasar, 4/628; al-Sharh al-Kabir with the Hashiya of al-Dasuqi, 5/443; Sharh al-Zurqani, 4/555; Sharh Mukhtasar Khalil, 7/69; Hashiyat al-Sawi, 9/116; al-Hawi al-Kabir, 7/483-484; al-Muhadhdhab, 1/427; al-Bayan, 7/498 and 500; Rawdat al-Talibin, 4/109-110; Asna al-Matalib, 2/449; al-Najm al-Wahhaj, 5/423-424; Mughni al-Muhtaj, 3/438; al-Mughni, 5/338-339; al-Kafi, 2/444; al-Sharh al-Kabir, 6/182-183; Sharh Muntaha al-Iradat, 4/273; Kashshaf al-Qina', 4/246-247; Matalib Uli al-Nuha, 4/199-200; al-Ifsah, 2/43).
The Malikis and the Shafi'is, in the soundest view, stated that the Imam's deputy may reserve like the Imam. Al-Nawawi said: is this specific to the greatest Imam, or is it also permitted to his governors in the provinces? Two ways; the sounder of the two is the second (Rawdat al-Talibin, 4/110; al-Najm al-Wahhaj, 5/424).
Al-Hattab said: what I see in the words of many of our Maliki companions is that the Imam may reserve under the conditions mentioned, without their discussing his deputies; but the import of the school's statements is that this depends on the generality or restriction of the governorship: if the Imam makes the governorship of a territory general for an emir, he may reserve, and all the more so if he entrusted him with oversight of the hima matter, and Allah knows best (Mawahib al-Jalil, 7/459).
Al-Dardir said: the specific authorization can be by the hima of an imam or of his entrusted deputy even if he did not permit him with regard to the hima specifically, unlike the iqtā', which the deputy practices only if the Imam permits him expressly (al-Sharh al-Kabir with the Hashiya of al-Dasuqi, 5/443).
The Shafi'is, in an opinion adopted by al-Mawardi, deny its permissibility and consider it specific to the great Imam. Al-Mawardi said: as for the emir of the territory and the governor of the province, if he wishes to reserve for the interests of the Muslims like the Imam, this is possible for him only with the Imam's permission, because the Imam's ijtihad is broader; but if the governor of alms saw the zakat animals gathered with him, the pasture prove insufficient for them, and feared their loss should he not reserve dead land for them, and the Imam forbid the hima, the governor of alms has the greater claim; and if the Imam permits the hima, two ways open on the permission granted to the governor of alms in the necessity we have just described:
The Prophet (peace and blessings be upon him) said:
"Do not withhold the surplus of water nor the surplus of pasture, lest water be monopolized and the families go hungry."
Hadith of the Prophet (peace and blessings be upon him)
If a man of the common Muslims reserved dead land and prevented the people from it for a time while grazing it alone, then the Imam overpowers him and removes his hand from it, he does not fine him for what he grazed: it is not his property and he is not subject to discretionary punishment, for he is one of those entitled to it; he is only forbidden the like of his overstep (previously cited sources).
Al-Nawawi said: it is forbidden for the Imam and the other governors to take from the owners of livestock a compensation for grazing in the hima or the dead land, without disagreement (Rawdat al-Talibin, 4/112; Mughni al-Muhtaj, 3/438-439). Al-Damiri said: as for the permanent water (al-'idd), that is, water that does not cease, such as a spring or a well, it is forbidden for the Imam to reserve it for the watering of the horses of jihad and the she-camels of the sadaqa, without disagreement (al-Najm al-Wahhaj, 5/424; Mughni al-Muhtaj, 3/439).
The scholars agreed that water, pasture and fire are shared among people and that no one may deprive them of them while they remain common property, by virtue of the saying of the Messenger of Allah (peace and blessings be upon him):
"Muslims are partners in three things: water, pasture and fire, and their price is unlawful."
Weak hadith, reported by Ahmad in his Musnad (23132), Ibn Majah (2472, its wording is his) and al-Bayhaqi in al-Kubra (11612)
They differed over the case where herbage grows on owned land: does its owner own it by his ownership of the soil, or may others take it? Ibn Hubayra reported this disagreement:
Abu Hanifa said he does not own it and whoever takes it, it is his; al-Shafi'i said he owns it by his ownership of the land; two narrations are reported from Ahmad, the more apparent being like Abu Hanifa's school; Malik said that if the land is enclosed (mawhuta), its owner owns it, and if it is not enclosed, he does not own it (al-Ifsah, 2/43 and 45; see Bada'i' al-Sana'i', 6/188-189; al-Ikhtiyar, 3/87-88; al-Tamhid, 19/1; al-Bayan, 7/503 and 505; al-Kafi, 2/445).
They differed over the water remaining beyond the need of a man, his animals and his crops, in a well or a river. Malik said: if the well or the river is in the wilderness, the owner is more entitled to the share of his need, and giving the surplus is obligatory on him; if it is in his enclosed garden, the surplus is not obligatory on him, except if his neighbor sowed depending on a well that collapsed, or a spring that caved in: it then becomes obligatory on him to give him the surplus until his neighbor repairs his own well or spring; if the neighbor is careless about that repair, he is no longer bound to give it; and after giving it, is he entitled to compensation? Two narrations.
Abu Hanifa and al-Shafi'i's companions said: he is bound to give the water for the drinking of people and animals without compensation, but not for farmland; he may take compensation for the latter, though giving without compensation is preferable. Two narrations are reported from Ahmad: the more apparent is that he is bound to give it without compensation for livestock and travel alike, and he may not refuse it; the other narration agrees with Abu Hanifa's view and that of the Shafi'is who followed him.
The majority of jurists, namely the Malikis, the Shafi'is and the Hanbalis, hold that whoever forces a person to work guarantees him the wage of that period, because he has captured his benefit, which has a measurable value, and must therefore answer for it as for the benefits of a slave.
The Hanafis said that he is sinful and subject to disciplinary correction for what he did, but guarantees nothing.
As for the third case, preventing someone from working without detaining him, the jurists of the four schools, Hanafi, Maliki, Shafi'i and Hanbali, agreed: if a person prevents another from working without detaining him, he does not guarantee his benefits nor owe him any wage, for were he to do that to a slave he would not guarantee his benefits; the free man is all the more so (al-Mabsut, 11/78 and 80; Majma' al-Damanat, 1/313; al-Taj wa-l-Iklil, 4/320; Sharh Mukhtasar Khalil, 6/143; al-Sharh al-Kabir with the Hashiya of al-Dasuqi, 5/178; Tathbir al-Mukhtasar, 4/400; al-Hawi al-Kabir, 7/161-162; al-Bayan, 7/80; al-Najm al-Wahhaj, 5/194; Mughni al-Muhtaj, 3/304; Tuhfat al-Muhtaj, 7/58-59; al-Mughni, 5/175).
The jurists differed over the ruling of the usurper's transactions, whether by sale or otherwise: are they void, with no effect whatsoever such as the transfer of ownership, or valid but suspended on the owner's ratification, like the acts of the fuduli (the unauthorized intervener)?
The Shafi'is in the later view (al-jadid), which is their school, and the Hanbalis according to the school, hold that the usurper's transaction on the usurped property itself, whether he sold or bought it, is void, by virtue of the saying of the Prophet (peace and blessings be upon him):
"There is no sale except over what you own."
Good (hasan) hadith, reported by Abu Dawud (2190)
If he buys on his liability and then pays with the usurped property itself, the transaction is valid. According to an opinion shared by both schools, his transaction is valid but suspended on the owner's permission, like that of the fuduli.
The Shafi'is according to the school: when the usurper disposes of the usurped property itself, his transaction is void. If he trades with the usurped property and sells or buys it itself, it is void and he does not own the exchange; if it perishes in his possession, he guarantees the like or the value; and the profit obtained is returned, if possible, to the owner of each contract, otherwise it is lost wealth.
But if he has sold on salam or bought on his liability and delivered the usurped property in it, the contract is valid and the delivery void: his liability is not released from what he undertook, and the usurper keeps what he took, its profits being his. According to the earlier view (al-qadim), his sale and purchase of the property itself conclude while suspended on the owner's ratification: if he ratifies, the profit is his; likewise, if he has undertaken on his liability and delivered the usurped property, the profits go to the owner (al-Bayan, 7/39-40; Rawdat al-Talibin, 3/685; Asna al-Matalib, 2/10; Mughni al-Muhtaj, 3/312; Nihayat al-Muhtaj, 5/209; Hashiyat al-Ramli on Asna al-Matalib, 2/357; Bahr al-Madhhab of al-Ruyani, 7/105).
The Hanbalis according to the school: the usurper's transactions bearing on religious rulings (hukmiyya) or other kinds, performed knowingly, that is, those carrying a ruling of validity or invalidity (sometimes described as valid, sometimes as invalid), such as the pilgrimage with usurped wealth and the other acts of worship attached to usurped property when done knowingly and with remembrance: the prayer in a usurped garment or in a usurped place, the ablution with usurped water, the payment of its zakat from usurped wealth; likewise the contracts such as sale, lease and gift over the usurped property, and marriage: if the usurper or another marries the usurped slave woman, it is unlawful and invalid, by virtue of the saying of the Prophet (peace and blessings be upon him):
"Whoever performs an act that is not in accordance with our order will have it rejected."
Hadith of the Prophet (peace and blessings be upon him)
Transactions that are not of the devotional kind on the usurped property are likewise unlawful, such as destroying it and using it. But if the usurper or another buys on his liability, then pays with the usurped property itself or its price, even taken from a deposit in his hands, or lends it out (qarad) with either, that is, with the deposit and the usurped property, even if the purchase was not intended to pay the price from the usurped property or the deposit, the contract, that is, the purchase, is valid because it bears on his liability, which accepts it; the taking of possession is void, that is, it does not release his liability, for lack of the owner's permission; and the profit and the capital of the mudaraba and similar contracts acquired go to the owner. According to a narration, the usurper's transactions take place as valid and remain suspended on the owner's ratification, like those of the fuduli.
The Imam Ibn Qudama said: the usurper's transactions are like those of the fuduli, according to the two narrations we mentioned: one is their voidness, the second their validity suspended on the owner's ratification. Abu al-Khattab mentioned, for the usurper's devotional transactions, a narration according to which they take place as valid, whether acts of worship such as purification, prayer, zakat and pilgrimage, or contracts such as lease and marriage; this, however, must be restricted, for the contracts, to those the owner has not annulled: as for what the owner chooses to annul by taking back the object of the contract, we know of no disagreement.
As for what the owner did not catch in time, the basis of its validation is that the usurper's tenure grows long and his transactions multiply, and judging them void would cause great harm that sometimes falls back on the owner, for the ruling of validity implies that the profit belongs to the owner and that the increase of the price accrues to him, whereas the ruling of voidness prevents that (al-Mughni, 5/159; al-Insaf, 6/203-204; Kashshaf al-Qina', 4/138; Sharh Muntaha al-Iradat, 4/165-166; Matalib Uli al-Nuha, 4/62-63).
The Hanafis: if the usurper sells a man's usurped property, his transaction does not take effect and depends on the owner's ratification; if the latter ratifies the sale, the ratification is valid when it gathers its conditions: the existence of the seller, the buyer and the object of the contract, and the ratification before litigation according to Abu Hanifa; the existence of the price is not required in the apparent narration when the sale is made in dirhams or dinars.
If the owner had litigated against the usurper over the usurped property and asked the judge to rule the ownership to him, then ratifies the sale, the ratification is not valid according to Abu Hanifa's opinion, as reported by Shams al-A'imma al-Halwani and Shaykh al-Islam Khawharzada; Shams al-A'imma al-Sarakhsi mentioned in his commentary that the ratification is valid in the apparent narration. If the owner does not know that the sold item still exists at the time of the ratification, because he left it in the buyer's hands, it is mentioned in the apparent narration that the ratification is valid. If the usurper had received the price and it perished in his hands, and the owner then ratifies the sale, the price perishes upon the property of the one who was usurped, the ratification being taken into account because it ends with permission what began without it, as stated in al-Muhit.
And if the usurper acquires the usurped property from the one who was usurped, by sale, gift or inheritance, after having sold it to another, the sale becomes void by the definitive termination of ownership (taryān) over the suspended ownership (Bada'i' al-Sana'i', 7/187; al-Muhit al-Burhani, 5/436; al-Fatawa al-Hindiyya, 5/149-150).
The Malikis: when the usurper, or the buyer from him, sells the usurped thing, the owner may ratify that sale, for at most it remains a fuduli's sale, and he may reject it: whether the buyer took possession of the sold item or not, whether he knew the seller was a usurper or not, whether the owner was present or absent, whether the place is near enough that no harm befalls the buyer in waiting until he knows what he has, or not; the gift and the other contracts follow the same regime as the sale.
If the owner confirms the sale, the price is claimed from the usurper if he received it from the buyer and it was intact; if he did not receive it, or received it while it had dwindled, the buyer answers for it. According to another opinion, there is no recourse against the buyer in the case where the usurper received it, even dwindled, the basis being that the ratification bears on the contract and the taking of possession together, not on the contract alone (al-Kafi, 1/433; al-Taj wa-l-Iklil, 4/324; Mawahib al-Jalil, 7/264; Sharh Mukhtasar Khalil, 6/146; Tathbir al-Mukhtasar, 4/404; al-Sharh al-Kabir with the Hashiya of al-Dasuqi, 5/182).
Al-Hattab said: the text of the letter reads: (and to its master, the ratification of its sale); and the commentary reports from al-Mudawwana: whoever usurps a slave or a slave woman and then sells her, then a man becomes entitled to her while she remains in her state, he does not have the usurper guarantee her value, even if the markets have changed; he may only take her back or take her price from the usurper, just as if he had found her in the usurper's hands while her markets had changed; if her master ratifies the sale after the price has perished in the usurper's hands, the usurper guarantees it, and satisfaction with his sale does not entail the status of entrusted deposit for the price. End of quotation.
Al-Lakhmi said: if the usurper sells the slave and then his master arrives while neither his market value nor his body has changed, the master keeps the choice between ratifying the sale or taking him back, the buyer then having recourse against the usurper for the price. Then he said: if the slave is present in the flesh and the one who was usurped ratifies the sale, it binds the buyer, unless the one who was usurped is failing in his obligations because of an unlawful cause or otherwise. They differed if the buyer had paid the price to the usurper, the usurper was destitute and the entitled party had ratified the sale: it was said that the usurper has nothing to claim from the buyer.