Section

Property recovered from a possessor who bears no liability for it likewise falls into two categories:

The first is property for which the person from whose possession it is recovered has paid a price.

The second is property for which he has paid no price.

As for property for which he has paid a price, he bears no liability for it, since he is entitled to recover the price if it perishes while in his possession. An example is someone who buys a slave who is then removed from his possession on the grounds that he is free, or buys immovable property which is then recovered from him on the grounds that it is an endowment. One opinion holds that he may lawfully retain the yield by virtue of the price he paid, because, if the property perishes and the seller is insolvent, he bears the risk of losing that price. This is the report of ‘Īsā from Ibn al-Qāsim in the Book of Claims to Property in al-‘Utbiyyah. It is also the practice followed among us concerning immovable property recovered on the grounds that it is an endowment. Another opinion holds that he must return the yield, because, if the property perishes, he can recover the price and therefore bears no liability for anything. This is the apparent position of Ibn al-Qāsim in al-Mudawwanah, since there he makes entitlement to the yield dependent on liability—I mean in al-Mudawwanah.

As for property for which he has paid no price and bears no liability, an example is an heir who inherits, after which someone with a stronger claim to the inheritance appears. There is no disagreement that he must return the yield he obtained or pay rent for his occupancy, since none of the grounds for liability applies to him. Mālik expressed two opinions concerning someone who occupies inherited property without letting it out, after which another person appears who shares in the inheritance, rather than having a stronger claim to it. The sounder of the two is the report of ‘Alī ibn Ziyād from Mālik: he must pay rent corresponding to the share of the newly appearing heir, since none of the grounds for liability applies to him.

As for an endowment from which some of its beneficiaries have derived income, believing themselves to be its sole beneficiaries, or which they have occupied, one opinion holds that no claim may be made against them for either the yield or their occupancy. This is Ibn al-Qāsim’s report from Mālik in the section on charitable donations and gifts. Another opinion holds that a claim may be made against them for both the yield and their occupancy. This accords with the report of ‘Alī ibn Ziyād from Mālik in al-Mudawwanah and is what analogy requires. A further opinion is that recourse may be had