Section Twelve
Misappropriation
Al-Ghsb
The scholars call the situation where one’s owned asset is with someone else ‘tahta yadayh’ (lit. under his hand) for a lawful reason and the acceptance of the owner as ‘yad al-Amānah’ (lit. the hand of trust, i.e. entrusted), while unlawful control of someone else's assets is the opposite to this and is called ‘yad al-‘Odwān’ (lit. the hand of aggression). The explanation of this is as follows:
1- Yad al-Amānah is taking control lawfully of the asset alone or with the benefit, which can be of two types:
Owner-based trust (amānah malikiyyah), where the control is a result of entrustment by the owner and has his permission.
b- Shari’ah-based trust (amāneh shar‘iyyah), where the control of the asset is without the knowledge of the owner but is based on the permission and acceptance of the Shari’ah.
2- Yed al-‘Odwān is taking control of someone else's assets without the permission of the owner or the Shari’ah, which can also be of two types:
a- Misappropriation (yad Al-Ghasb), which is taking control of the asset or right of others intentionally but with the knowledge (of the person doing the taking) of its unlawfulness, through injustice and tyranny, which is quite clear.
b- Taking through lack of awareness (yad al-Ghaflah), which is taking the asset or right of others out of the mistaken belief that it is lawful, or a mistaken belief that it is his – which is what is taken as a result of an invalid exchange contract, such as when a thing sold remains with the buyer or the payment remains with the seller –or a mistaken belief that it is his out of misunderstanding and error, such as if a person puts on another person’s shoes or clothes thinking they are his. However, things taken as the result of an invalid non-exchange contract, such as a gift, will or the like, have a special ruling which will be explained later (no. 1251).
And since we have discussed the rulings of the ‘yad’ (being in control of assets) in both its types in the sections on sales, deposits and loqtah, and in others as well, we have allocated this section to the ‘hand’of misappropriation (yad Al-Ghasb) which is: seizing, out of aggression, the asset or a right of Muslims or non-Muslims, which takes place in:
1- The misappropriation (ghasb) of assets, which takes place with an asset with the benefit (such as the misappropriation of an asset the benefit of which has not been stripped away through rental, gifts or the like), or of an asset on its own without its benefit, such as the seizure of an rented asset by someone other than the renting person (tenants etc.).
2- The misappropriation of (essential) benefits, which are called ‘man’s benefits’, such as the owner seizing the rented asset from the renting person – during the duration of the contract – or preventing the person from putting his effort into earn his living by doing things like imprisoning him or tying him in chains,.
3- The misappropriation of rights, such as the right of jurisdiction/authority, the right of exclusion on a wasteland, the right of a mortgagor to the mortgaged asset, the rights of custody, the rights of alimony/maintenance of the wife and relatives, etc.
Misappropriation is one of the grand sins regardless of how small the misappropriated asset or seized right is. The details of its rulings are as follows:
(A) Returning misappropriated assets
1246. It is obligatory on the misappropriator to return any misappropriated asset to its owner, and it is obligatory on a non-misappropriator to return it to the owner if it came under his control out of ignorance of the misappropriation, then he later came to know about it, or was forced then this forcing activity stopped, whether the asset is good or defective, separate or part of another thing, such as a wooden plank in the ceiling of a building, in which case the misappropriated thing must be returned to its owner by extracting it, even if this results in harming the thing it is extracted from, as long as it (the misappropriated thing) has a value, even if this is less than its past value, unless the owner accepts an exchange, in which case the misappropriated asset becomes, through this exchange, owned by the misappropriator.
1247. If the misappropriator mixes the asset with others, or if it becomes mixed without his wishing it, then there are many situations:
1- The asset becomes mixed with things that may be distinguished and separated from: in this case it must be separated and returned to its owner.
2- The mixture becomes one thing, any part of which cannot be distinguished from the other, i.e. the mixed thing is of the same type and of the same quality, such as the mixing of oil with oil: in this case they must divide it in the ratio of each of them. The consequences of this are:
a- No compensation is due on the misappropriator to the owner for the same misappropriated amount or its value.
b- Neither of them is allowed to dispose of the joint asset on his own unless the other gives his permission, or to divide it between them if one of them requests a division.
3- The same situation in (2), but the mixing was with something of a better or worse quality: here the person whose asset was misappropriated has the choice of claiming an alternative or to divide it between them as in (2). However, if he chooses to divide it and there was loss/reduction in the value of the misappropriated asset as a result of the mixing, in this case compensation is due from the misappropriator for that loss/reduction.
4- The misappropriated asset is mixed with something of another type, so that the mixture is regarded damaged, such as mixing rose water with fuel: in this case it is obligatory on the misappropriator to pay for an exchange according to the security (damān) basis.
5- As in (4) above, but the mixture retains a value and financial merit, such as mixing wheat flour with barley flour: in this case the ruling is as that of (3) above.
(B) Compensating benefits
1248. Compensated benefits on the misappropriator are threefold:
1- Benefits owned with things like rent, loans etc., whether the misappropriation was with the renting person or the borrower (the owner of the benefit) benefiting from it or not, so that the matter at hand here is the benefit misappropriated from its owner whatever it is, not the benefit that is lost as a result of misappropriating the asset: the ruling for these is that the rental of a similar item to the misappropriated asset for the duration of the misappropriation is to be estimated and this must be paid as compensation by the misappropriator, whether it is more or less than the agreed-on rent for the person whose benefit was misappropriated, and whether the misappropriated benefit was common (such as using a house for living or a car for travelling in) or not common (such as using a house as an art gallery and the car a demonstration tool to teach how it is built/manufactured, or the like.
2- Benefits lost as a result of the misappropriation of the asset, which are two in number:
a- Lost benefit, which is one for which money is given, regardless of being common or not: here compensation is due from the misappropriator for the common benefit only. For example, with a house used for several kinds of benefit for which money is given, the compensation due from the misappropriator relates only to using it for living, since it is the common usage.
b- Missed benefit, which is the benefit for which money is not given, such as benefiting from the shadow under the tree, reading in a book and so on: for these no compensation is due from the misappropriator, unless he reaped them from the asset and used them himself or through others.
3- Man’s benefit, which is the benefit the misappropriation of which is done by detaining an earning worker and preventing him from putting his effort into the money-making profession that he knows; here:
a- If the detained was working for himself (self-employed), compensation is due from the misappropriator for the income of the work that he is prevented from doing.
b- If he was employed by someone, in this case compensation is due from the misappropriator to the employer/hiring person equal to what he lost out of the employee/hired person’s benefit.
c- If the misappropriator forces someone to work for him, and if this was in the kind of work that he knows, compensation is due based on the wages for similar work, but if it is in a kind of work that he does not know, compensation will be due on the work that he carried out plus the wages for the work which he knows.
(C) Security of rights
1249. It is obligatory on the misappropriator of any right whatever it is to return it to its owner and leave it with him; however, compensation will only be due from the misappropriator for misappropriated rights that have an ownership-like nature, so that its owner will lose – by its misappropriation – something that belongs to him such as exclusion (tahjir) rights, since if the property suffers, while under the control of the misappropriator, and this leads to its damage and inability to benefit from it, such as if he floods it with water, the compensation due from the misappropriator will be its value under this exclusion, if this has a common value.
However, this does not apply to things of no ownership-like nature, such as the right of the mortgagor where the mortgagor is prevented from taking his debt back from the mortgagee, so if the asset gets damaged, the mortgagor does not pay compensation for the damage, while the mortgagee still owes him the debt.
Additional rulings
1250. The ‘hand’ (control) of the misappropriator on the misappropriated asset is a ‘hand’ of aggression, so if the asset gets damaged while under his control, compensation will be due from him, paid with something similar if it was a similar-type asset (see 1259-60 below), and with its value if it was a value-type asset, regardless of the reason for the damage; compensation is also due from him for all its lost benefits, whether he reaped benefit from them or not, and its missed benefits, whether he reaped benefit from them or not - and all this until the time that the asset got damaged. In addition, compensation is due from the misappropriator for all the loss/reduction that takes place in the asset, even compensating also for any features added to the misappropriated asset that raise its value if they disappear after their addition and before the damage of the asset. However, compensation is not due on the benefits lost in the period between the damage and paying compensation to its owner, even if this is long.
1251. Included under things subject to misappropriation are those things that can be categorised under the ‘hand of unawareness’, which we mentioned before. The ruling regarding this is as follows:
1- The asset received as a result of an invalid exchange transaction or similar contracts and declarations, such as marriage and divorce in which the asset is transferred from one party to the other – for example: the sold item and the payment in a sale, a dowry in an invalid marriage, the khol’ compensation in a khol’ divorce –, the ruling for all these is that it is obligatory to return the asset to its owner after it becomes known that the transaction was invalid. In addition, compensation is due from the person who has taken control of the asset for all the lost benefits of the asset, reaped or otherwise, and the missed benefits that have been reaped, even during the period when he did not know that he was not its owner; compensation is also due for the asset – even with his ignorance of the situation – if the asset gets damaged while with him, even if as a result of a natural cause and without his transgression or negligence.
2- The asset received in invalid non-exchange transactions, such as an asset given as a gift in an invalid gift transaction, assets in an invalid will and the like; the person who took the asset – after become aware of the invalidity of the transaction – must hasten to return the asset to the giver even if the gift was non-exchange type, or to the testator of the will, but compensation is not due from him for its benefits, nor is it payable with a similar asset or its value if it became damaged during the time of his ignorance; if he comes to know of the invalidity of the transaction but does not hasten to return it, his hand will be regarded as a ‘hand of aggression’ and compensation will be due on its benefits, also compensation with a similar asset or value if it has been damaged.
3- Assets that came under one’s control out of ignorance and false belief, such as if someone thinks that a book is his and so he takes it, and the like; the ruling of this is like in (1) above.