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Chapter thirty-one » Found Property → ← Chapter twenty-nine » Miscellaneous rulings on divorce

Chapter thirty » Usurpation (Ghaṣb)

Usurpation is when a person unjustly takes control over the property or right of someone else. It is something that the intellect, Qur’an, and traditions all judge to be unlawful (ḥarām). It has been reported that the most noble Messenger (Ṣ) said: ‘Whosoever usurps one span of land from another, seven layers of that land will be hung around his neck like a collar on the Day of Resurrection.’

Ruling 2563. If a person does not allow people to make use of a mosque, school, bridge, or any other place that has been built for public use, he will have usurped their right. And if a person reserves a place for himself in a mosque and someone drives him out of that place and does not allow him to make use of it, he will have committed a sin.

Ruling 2564. If a depositor and a depositee agree that the item that has been deposited [as security] will remain in the depositee’s possession or in the possession of a third party, the depositor cannot take back the item before paying off his debt. If he does, he must return it immediately.

Ruling 2565. If an item that has been deposited with someone is usurped by a third party, both the owner of the property and the depositee can claim the usurped item from the usurper. And in the event that they take the item back, it will be considered to be a deposited item once again.

Ruling 2566. If a person usurps something, he must return it to its owner. And if the item is destroyed and it was of some value, he must replace it for the owner as per the explanation in Rulings 2576 and 2577.

Ruling 2567. If some gain is acquired from an item that has been usurped – for example, a usurped sheep gives birth to a lamb – it will belong to the owner. Similarly, if a person usurps a house, for example, he must pay its rent (ijārah) even if he does not reside in it.

Ruling 2568. If a person usurps property that belongs to a child or to an insane person, he must return it to their guardian (walī). And if the property is destroyed, he must replace it.

Ruling 2569. If two people usurp something together and each of them has complete control over it, they are both responsible (ḍāmin) for it even if neither of them could have usurped the property on their own.

Ruling 2570. If a person mixes something that he has usurped with something else – for example, he mixes wheat that he has usurped with barley – then, in the event that it is possible to separate the two items, even if it requires some effort, he must separate them and return the usurped item to the owner.

Ruling 2571. If a person usurps a piece of gold that has been crafted, such as an earring, and melts it, he must return it to the owner along with the difference in its value before and after it was melted. And if he does not pay the difference in value but says, ‘I will make it like it was’, the owner does not have to accept his offer. Also, the owner cannot compel him to make it like it was.

Ruling 2572. If a person changes something that he has usurped into something better – for example, he makes an earring from gold that he has usurped – then, in the event that the owner says, ‘Give me the item as it is’, the usurper must give it to him and he cannot claim any wages for his efforts. Also, a person does not have the right to revert an item to its original form without the consent of the owner. However, if he reverts the item to its original form or changes it to another form without the consent of the owner, then it is not known whether or not he is responsible for the difference in value between the two states.

Ruling 2573. If a person changes something that he has usurped into something better and the owner says, ‘You must revert it to its original form’, then, if the owner has a purpose for saying that, it is obligatory (wājib) on the usurper to revert it to its original form. And in the event that its value depreciates due to the changes made to it, he must pay the difference to the owner. Therefore, if he makes an earring from gold that he has usurped and the owner says, ‘You must revert it to its original form’, in the event that its value after he has melted it is lower than what it was before he made it into an earring, he must pay the difference.

Ruling 2574. If someone farms on land that he has usurped or plants trees on it, the crops that he cultivates, the trees, and their fruits belong to him. However, if the owner of the land does not consent to the crops or trees remaining on his land, the usurper must immediately remove them. He must also pay rent to the owner for the time the crops and trees are there. Furthermore, he must repair any damage done to the land; for example, he must fill in any holes caused by removing the trees. And if the value of the land depreciates due to the damage, he must pay the difference and he cannot compel the owner of the land to sell or rent it to him. Similarly, the owner of the land cannot compel the person to sell the trees or the crops to him.

Ruling 2575. If an owner of some land consents to crops and trees remaining on his land, it is not necessary for the usurper of the land to remove them. However, he must pay rent for using the land from the time he usurped it until the time the owner gave his consent.

Ruling 2576. If an item that has been usurped is destroyed and it was a non-fungible item, such as cows and sheep, the usurper must pay its value. An item is regarded as being ‘non-fungible’ when there are not many other items like it in terms of those particulars that effect its desirability. And in the event that its market value varies according to supply and demand, the usurper must pay for the item’s value at the time it was destroyed.

Ruling 2577. If an item that has been usurped is destroyed and it was a fungible item, such as wheat and barley, the usurper must replace it with another item like it. An item is regarded as being ‘fungible’ when there are many other items like it in terms of those particulars that effect its desirability. However, the thing that the usurper gives must have the same type of particulars that effect the item’s desirability as that of the usurped and destroyed item. For example, if a person usurps high grade rice, he cannot replace it with lower grade rice.

Ruling 2578. If a person usurps a non-fungible item and it is destroyed, in the event that it acquired a quality that increased its value while it was with the usurper – for example, [it was an animal and] it gained weight – and if it is then destroyed, he must pay the amount it was worth when it had gained weight. This applies as long as the gain in weight was a result of him better tending to it. However, it was not a result of him better tending to it, then it is not necessary for him to pay the increase in value.

Ruling 2579. If a person usurps an item and another individual usurps it from him and it is destroyed, the owner can claim its replacement from either of the two usurpers, or he can claim some of it from each of them. And in the event that he takes its replacement from the first usurper, the first usurper can claim what he gives him from the second usurper. However, if the owner takes the replacement from the second usurper, the second usurper cannot claim what he gave him from the first usurper.

Ruling 2580. If one of the conditions of a valid transaction (muʿāmalah) is not fulfilled in a sale – for example, an item that must be bought and sold by weight is sold without weighing it – the transaction is invalid (bāṭil). Despite this, in the event that the seller and the buyer consent to the other having disposal over the property, there is no problem. Otherwise, [if they do not consent], the thing that they have taken from each other is like usurped property and must be returned to the other. And in case the property of one of them perishes while it is in the possession of the other, the latter must replace it, whether he knows the transaction is invalid or not.

Ruling 2581. If a person takes some property from a seller in order to look at it or to keep it for a while so that if he likes it he will buy it, and if that property perishes, then based on the well-known (mashhūr) juristic opinion, he must give its replacement to the owner.
Chapter thirty-one » Found Property → ← Chapter twenty-nine » Miscellaneous rulings on divorce
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