Section
A slave himself is guaranteed by his full market value whenever he perishes or is killed while in wrongful possession. If one of his limbs that has no fixed blood-money for a free person is injured, the liability is whatever diminution occurs in the slave’s price. The same applies to limbs whose indemnity is predetermined when they are lost; if they are intentionally injured, then—according to the earlier view—the rule is the same, whereas the later view is that their indemnity is taken as the stated fraction of the slave’s value. In this calculation, the slave’s price functions like the diyah of a free man: the hand, for instance, is valued at one-half of his price.
All other animals are compensated by their market value, while all non-animal property is divided into fungible (mithlī) and non-fungible (qīmī) categories. The stronger opinion defines a fungible item as anything sold by volume or weight and valid for a salam contract, such as water, soil, copper, bullion, musk, camphor, cotton, grapes, and flour—excluding costly perfume pastes like ghaliyah and compounded mixtures. A fungible item is to be replaced with an identical substitute whether it perishes on its own or is destroyed; if no equivalent is obtainable, compensation shifts to its value, and, on the sounder view, that value is the highest price the item reached from the time of usurpation until the substitute became unavailable.
If the usurper moves a fungible item to another town, the owner may require its return and may also claim its value immediately. Should the item be returned, the owner must give back the value he had taken. If it is lost in the town to which it was moved, the owner may demand a replacement in whichever of the two towns he chooses; if no equivalent exists, the usurper must pay the higher of the two market prices. When the owner overtakes the usurper in a place other than where the loss occurred, the correct view is that—provided transporting a substitute imposes no cost, as with coinage—the owner may insist on a replacement; otherwise he may claim only the value current in the place of destruction.
For non-fungible property, liability is the highest price the item attains between the moment it was usurped and the moment it is lost; if there was no prior usurpation and the item is destroyed outright, the compensation is its value on the day it perished. Should the item inflict an injury and then itself perish through the spread of that injury, the highest value is still due.
No compensation is due for wine, and it may not be poured away when owned by a dhimmī unless he openly drinks it or sells it. If the very same wine still exists, it must be returned to him; the same ruling applies to any permissible property that has been usurped from a Muslim. Idols and musical instruments entail no liability when they are destroyed. The sounder view, however, is that they should not be smashed beyond repair; rather, they should be separated into parts that can revert to their pre-assembly state. If the person enjoining right cannot stay within this limit while preventing the wrongdoing, he may eliminate the object by whatever means are possible.
A usurper is liable for the usufruct of a house, a slave, and similar property—whether he actively prevents the owner from benefiting or the benefit simply lapses while in his wrongful possession. The benefit of sexual access is only compensated for deliberate deprivation, and the same, on the sounder view, applies to the labor of a free person. When the usurped item depreciates without being used, both the deficiency (arsh) and the rental value become obligatory; the same holds, according to the stronger position, when the depreciation results from use, such as a garment becoming worn.