- Book of Ghasb (Usurpation)
Whoever unlawfully seizes a fungible item and it perishes while in his possession must replace it with another of the same kind; if the item is non-fungible, he must pay its value on the day it was taken.
The usurper is obliged to restore the very article he seized. If he alleges that it has been lost, the judge detains him until he is convinced that, had the article still existed, the usurper would have produced it; only then does he order him to pay its substitute.
Ghasb applies primarily to movables. Should someone usurp real property and it is later destroyed while in his hands, Abu Hanifah and Abu Yusuf hold that he is not liable for that destruction, whereas Muhammad rules that he is liable for it just as he would be for demolishing it outright. All three agree that any diminution caused by the usurper’s actions or by his occupation must be compensated.
If the usurped property perishes in the usurper’s possession—whether through his own act or otherwise—he is responsible for its full value. If it is diminished, he must make good the loss.
Whoever slaughters another man’s sheep leaves the owner with two options: he may claim the sheep’s full value and leave the carcass with the slaughterer, or he may claim only the depreciation and keep the carcass himself. One who makes a small tear in another’s garment is liable for the resulting loss in value; but if he tears it so badly that most of its utility is gone, the owner may demand its entire value.
When the usurper transforms the seized article so thoroughly that its original name and chief utilities disappear, the former owner’s title is extinguished, the usurper acquires ownership, and he remains liable for its value. It is unlawful for him to benefit from it until he pays that value. Examples include seizing a sheep and then slaughtering and roasting or boiling it; taking wheat and grinding it; taking iron and forging it into a sword; or taking brass and turning it into vessels.
If he seizes silver or gold and mints it into dinars or dirhams, or