Section Eleven
Things Lost and Found
Al-Loqtah
Loqtah is: a lost asset - animals or things, which are not under the care of anyone; the term includes homeless children who have no one to care for them, unless someone finds them and takes them in.
A lost thing is called ‘da’i’’; a lost animal is called ‘dāllah’; if they are found, they are called ‘loqtah’; a child found is called ‘leqit’ (foundling).
(A) Rulings for foundlings (laqit)
1224. A child – found by someone – is not regarded as a foundling (laqit) unless two things are in place:
1- The child is unable to be independent in his affairs, so that he cannot carry out what is in his interest or stop what harms or destroys him, even if he has passed the first stage of childhood and become aware of sexual things (momayyiz).
2- The child must be homeless, with no known carer, nor a sponsor, guardian or guardian appointed by a will-, whether he has been abandoned and deserted by his parents or not known to be likewise but is only lost or has no parents.
1225. If the lost person is an adult that cannot be independent, such as an insane person, he is not regarded as laqit as neither the term nor its rulings apply to him, but the Islamic authority will determine his affairs, although whoever finds him is obliged to protect him and care for him if harm is feared; in fact it is recommended even without fear of such things, until the Islamic authority is consulted in his matter.
1226. The loqtah rulings do not apply if the person who found the child is not a sane adult, and is not a Muslim if the foundling is regarded as a Muslim, such as if he is found in Muslim countries and his religion is not known, or in a non-Muslim country where Muslims reside and it is probable that he might have been born to them. In this case, it is allowed for the one who meets the conditions of Islamic legal age, sanity and Islam, to take the foundling from the person who found him if the latter lacks any of the conditions, in fact it may be obligatory to take him if the person who found him is not a Muslim. If the person who finds him is a child and his guardian fosters him, the guardian becomes himself the finder and the foundling rulings will apply to that finder.
1227. It is an obligation under the conditions of sufficiency (wojūb kifā’i) to take the foundling or the abandoned child into care if protecting his body, soul or religion from the dangers that one fears might hurt him depend on taking him. If he is safe from such dangers, but his living under the care a sponsor is better than leaving him alone to fend for himself, in this case taking him in is recommended and whoever takes him will have the reward equal to that of sponsoring an orphan, if not more.
1228. If the iltiqāt (taking the laqit as a loqtah) is complete with its conditions, the person taking in the foundling will have greater rights over the foundling, so it is not allowed for anyone to take him from him.
1229. It is obligatory on the person taking in the foundling to observe two things in their dealings with the latter:
1- To try to find his parents until one abandons all hope of finding them; this is if it is not known that he has been abandoned by them and contacting them is possible.
2- To carry out his duties of custody, the person who found the foundling has to take care of him in his sleeping, clothing, food and drink, medical treatment and preventing harm to him, in addition to caring for the matters of his manners, religion, behaviour and guidance, in the minimum level, whether the finder does that himself or through other individuals or care organisations. Regarding the foundling's other affairs that form part of the matters relating to the guardianship over him - such as expenses disbursed from his assets, preserving his assets and investing them, and the transactions that these matters involve, and so on - all these have to be controlled by the Islamic authority or the foundling's authorised representative, but if none of these is available, or they cannot undertake the matter, the person who found him must turn to the unjust among the believers, and if he is one of them, he may dispose of these matters himself.
1230. The expenses of the foundling may be met in different ways:
1- They may be donated by a donor, or the Islamic authority meets his expenses from the Islamic treasury (bayt al-Mal) or the religion-based money obligations (hoqūq shar‘iyyah) – if applicable.
2- The foundling may have money, or things that he does not need; in this case it is allowed for the person who found him to spend it on him with the permission of the Islamic authority or his authorised representative where possible, or – failing that – the permission of the unjust believers if he is not one of them.
3- The foundling has no money, nor is a donor available; in this case, it becomes obligatory on the person who found him to pay for his expenses from his own funds. However, he is allowed in this case to claim from the foundling what he has spent on him after he reaches the Islamic legal age and becomes financially capable and after he has stated his intention to claim it, but if he has not made this intention clear, he is not allowed to claim from him even if he becomes financially capable.
1231. It is not allowed for the finder to adopt the foundling by giving him his name as if he was his son – and if he does this, he has sinned; the consequences of ancestry and its rulings - such as guardianship, ancestry and inheritance - will not apply. However, adoption in the sense of sponsorship, care and living with his family is valid, indeed this is one of the best of deeds; however, the foundling must be treated as a stranger regarding the veil and so on (i.e. in relations with the other sex), unless he becomes one of the sponsor’s unmarriageable kinship with matters like breastfeeding and the like.
(B) Animal loqtah
1232. It is not allowed to take in a lost animal in any place where it is safe from wild animals, whether it is in built-up areas or elsewhere, especially if it is strong enough, big enough or fast enough to protect itself from wild animals and is – in addition to that – safe from harm through illness, hunger, falling in a well or from a high place. But if it is not like that, taking it in is allowed but it is recommended to abstain from this unless the animal is vulnerable to harm so that leaving it is regarded as wasting assets, in which case it must be taken in.
1233. The following are obligatory on the person taking in a lost anima:
1- Protecting it from injury and harm from all that could lead to this.
2- Trying to find its owner, here:
a- If taking the lost animal in is not allowed for him, but he does take it in anyway, trying to find its owners must then be undertaken in the places where it is hoped the owner might be found, until the finder loses hope of finding them; in this case he pays for it as alms on its owner’s behalf – it is an obligatory precaution that this is done with the permission of the Islamic authority. The same ruling applies if taking it in becomes obligatory out of fear of harm.
b- If taking it in is allowed – such as if taking a sheep or the like in the wilderness and the animal does not resist– the finder must try to find the owner in the area where he found the animal if there are people out there, and if he cannot find the owner, it is then allowed for him to own it and dispose of it by eating, sale or the like, and equally it is allowed for him to keep it as a trust until he discovers its owner, for as long as it takes before his loses hope of finding him.
3- Compensation for the animal, if taking it in is not allowed is due on its benefits as will be explained in the misappropriation (ghasb) rulings; compensation is absolutely due for any injury and harm. However, if taking it in is allowed or obligatory on the finder, no compensation will be due if it comes to any harm when in his control, as long as no transgression or negligence is involved; but if the person who found the animal is the one who did the harm, in this case he must pay to its owner the sum equivalent to its value on the day that he found it.
1234. If an animal enters man’s house or similar protected places, he would not be regarded as having taken it and placed it under his control; in this case no compensation is due from him, and he has the right to evict the animal from the place; indeed, it is obligatory to evict it if it is probable that it has not been lost by its owner. However, if the finder knows that it has been lost, he must try to find its owners in the area around him – if he finds him, he must give the animal back to him, otherwise he must pay its value as alms, and it is an obligatory precaution to secure the permission of the Islamic authority before doing so.
(C) The asset loqtah
This has two parts:
Part one: Determining a loqtah
1235. An asset is not regarded a loqtah unless two points are satisfied:
1- The loss of the asset by its owner and the knowledge of the person who finds it that it is a lost asset, through circumstances in which it is shown to be a lost asset. So, an asset taken from someone who has misappropriated it (such as a burglar) is not a loqtah, nor does the status of loqtah apply to a borrowed asset where the borrower has forgotten who its owner is, nor in other situations in which the asset is not lost for good (da‘ī’) but has simply been temporarily mislaid by its owner (mefqūd).
2- The action taken by the person who found it is regarded as taking it in and iltiqāt (i.e. the taking-in discussed in this section), even if he does not intend by his action to conform to the meaning of a loqtah; so the loqtah rulings will be applicable to a person who has taken an asset under the false belief that it was his then he finds out later that it is something owned by someone else and lost, and other similar situations. In other words: it is not sufficient for a loqtah to be regarded as such through the mere finding of it and seeing it as a lost asset, but it must be taken in as iltiqāt.
1236. The rulings of loqtah do not apply unless the person who found the item has reached the Islamic legal age and is sane. However, if a child or an insane person found it, the guardian will be obliged to keep it and apply all the consequences of it.
1237. Any owned asset that is not lost in the manner described above, if its owner is not known but no one has control over it, cannot simply be taken in by anyone; so if someone does take it in, he is regarded as an misappropriator and compensation will be due from him, unless it is vulnerable to damage, in which case it is obligatory on him to take it in so as to protect it; in this case it is a trust and compensation will not, then, be due unless transgression and negligence is involved.
Part two: Trying to find the owner
1238. The situations regarding trying to find the owner of a loqtah are:
First: The asset taken in has features that distinguish it from things of the similar type, so that if the person who found it describes some of its features the owner will be able to list the rest of them which means that he knows it and (so) it is his. Trying to find the owner of such a loqtah must continue for one year; however, the obligation of trying to find the owner, in this case, is conditional upon three things:
a- The value of the loqtah must be one shar’i dirham or more, which is estimated by some specialists of our time to be around 2.5gm of silver – the criterion of its value depends on the time and place of when it is taken in. If it is less than this value, then it is not obligatory to try to find the owner, but the finder must give it as alms, as a precaution.
b- The person who found it believes that the benefit of trying to find the owner is worthwhile, so if he becomes satisfied that there is no possible benefit in this – such as in the cases of loqtah in a deserted wilderness, or on public roads used by travellers from different towns or countries, or in travel termini such as airports and the like where one can ascertain that the owner of the found asset has travelled to an unknown destination where the news of his lost asset will not reach him even if the person who found it tried –in these cases the obligation of trying to find the owner is cancelled but he must, as an obligatory precaution, keep it until he loses hope of contacting the owner, especially if the item is valuable; then he must give it as alms on behalf of its owner. If its owner then appears after the finder has given it as alms and refuses to accept the disposal – i.e. as alms – compensation will be due to him from the person who found it.
c- The finder should be in a situation in which he is safe from the danger of being accused of stealing, so if he fears there is a danger of being accused of stealing and this could lead to damage to his reputation or even imprisonment, the obligation to try to find the owner cancels and the ruling will be the same as in (b).
Second: The asset taken in does not have features that distinguish it from its similar items, such as most manufactured goods produced by modern factories which make distinguishing individual items of the same type from each other difficult; in this case – if distinguishing the item is not possible – the person who found it is allowed to own it regardless if its value is more than the dirham; although it is better to give it as alms on behalf of its owner, and better still that the alms-giving is done with the permission of the Islamic authority.
1239. In the obligatory endeavour to find the owner it is advisable to describe the asset in terms of its type or kind including some of its features, but leaving some of them unclear and obscure, so that if the owner hears this description, he will think that there is a good chance that the asset is his, and then if he can list the rest of its features, this will prove that he is the owner, and thus the item can be returned to him.
1240. If the finder hopes to find the owner, the period for trying to find him is one full year; it is precautionary to observe continuity so that he does not count one full year over several years, such as if he tries to find the owner for three months in every year.
1241. Trying to find the owner must start from the time of finding the asset, otherwise he has sinned if he has no excuse. In any case, whether he is disobedient or excused in failing to hasten to do this, the duty of trying to find the owner will not be cancelled and he must hasten to carry it out starting from the moment of his repentance or the removal of the excuse, unless a long time has stripped the endeavour of trying to find the owner of any benefit in finding him, in which case the obligation is cancelled and he must give the asset as alms with the obligatory precaution of seeking the permission of the Islamic authority.
1242. There is no specified method for finding the owner; the important thing is that the method chosen must be effective to an appreciable degree in its potential to reach the owner and give him the opportunity to prove his ownership, whether regarding the place in which the finder tries, the number of times he tries, or the method he uses, such as by writing, asking, placing advertisements in the media etc. That said, trying to find the owner must be done in a place that enhances the possibility of its news reaching the owner, which is not necessarily the place where the item was found.
1243. No payment is due from the owner for the effort made by the person who found the asset to try to find the owner, unless this required the outlay of additional money, such as advertising costs, and there was no donor for this, and the loqtah had no appreciated value that could be invested. It would be an obligatory precaution to seek the Islamic authority’s permission to invest any such appreciated value, or to sell some of it in order to spend the income on trying to find the owner; failing all that, it becomes obligatory on the finder to spend his own money to try to find the owner, and he is allowed to claim it from the owner if it is his intention to do so at the outset.
1244. If the finder tries to find the owner for a year in the proper manner and cannot find the owner, there are two possible situations:
1- The loqtah is in Mecca and the sacred area around it (the harām), in this case it is an obligatory precaution to pay it as alms on behalf of its owner.
2- If the loqtah is somewhere else other than the harām, in this case the finder has three options:
a- If he takes possession of it, but if its owner appears later, he must return it to him if the same asset still exists, or return an alternative – in kind or value – if it has been damaged (or is non-existent).
b- If he gives it as alms on behalf of its owner without the permission of the Islamic authority, here if its owner appears later and he accepts the alms-giving, this would be his reward, otherwise the finder is obliged to give to the owner a similar asset or its value, and the owner has no right to claim anything from the person who was paid the alms.
c- He may keep the found asset with him as a trust if he likes, and if its owner appears, he returns it to him, without any compensation due from him unless it has been harmed by his transgression or negligence; he may retract from this and turn to any of the two above options whenever he likes.
1245. A loqtah is held in trust by the person who found it, so no compensation is due from him if it becomes damaged unless it is through his transgression or negligence. Examples of situations of transgression or negligence are: if he returns the lost asset to the place where he found it, or if he fails in properly trying to find the owner, or if he owned it or paid it as alms after trying to find its owners – as explained above.
Moreover, it is not allowed to dispose of the asset and benefit from it, even if with the intention of keeping the revenues of these benefits for the owner, otherwise the finder will be a transgressor, unless the Islamic authority has given his permission in his capacity as the guardian of the absent owner, in which case the disposal of the found asset will be valid and compensation will be due from him to the owner, especially if it is found that the owner of the loqtah is a child or an insane person.