or recognized custom, and that, at the owner’s request, he must confirm his statement with an oath.
As for the person who holds the property without the owner’s consent—such as a usurper and everyone in the same legal position—he is liable in every circumstance, whether the loss occurred through transgression, negligence, or neither. His hand is wrongful and aggressive; therefore he must guarantee the very article together with any benefits that perish while under his control, and he must make good any diminution in its value.
Tenth Maxim: “Profit goes with liability.”
This maxim is a hadith recorded by Abū Dāwūd, al-Tirmidhī, al-Nasāʾī, and others. It numbers among the Prophet’s (Allah bless him and grant him peace) concise sayings, for it embraces many meanings, and by virtue of its brevity and comprehensiveness it has become proverbial.
Lexical meaning: Ibn al-Athīr explains in al-Nihāya that al-kharāj is whatever revenue or yield proceeds from a thing. The preposition bi (“with”) is linked to an omitted phrase, the sense being: “The profit is deserved by reason of liability (ḍamān).” Liability here denotes suretyship and assumption of responsibility.
Technical meaning: Whatever proceeds from the item by way of yield or benefit belongs to the purchaser in return for the liability he bears for the property; for if the sold article were to perish, the loss would fall on him. Hence the profit is his in exchange for the potential loss, because the one who must bear the loss—should it occur—ought to obtain the gain. Hardship equals benefit, favor equals burden, and gain accompanies risk.
Eleventh Maxim: “The hand is accountable for what it has taken until it returns it.”
This maxim reproduces the wording of a hadith related by Aḥmad and the compilers of the Sunan from Samura ibn Jundub. Its meaning is that whoever takes something without right is liable for it, and his responsibility is not discharged until he restores it.
Liability is of two kinds:
- Liability arising from a contract.
- Liability arising from possession.
Contractual liability is settled by what the two contracting parties agreed upon or its substitute, whereas liability of the hand is discharged by giving back the like (in fungible goods) or paying the value (in non-fungibles).