against them for the yield, but not for their occupancy. This is Ibn al-Qāsim’s explicit statement in al-Mabsūtah. In terms of analogy, there is no distinction between an endowment and other property, nor between deriving income from it and occupying it.

Section

If an objection is raised concerning a donee who derives income from what he has been given before it is recovered from his possession by a rightful claimant, or an heir who derives income from inherited property before it is likewise recovered—namely, that the yield belongs to him even though he has paid no price and bears no liability—the answer is that the heir and the donee take the place of the person from whom the property passed to them in their entitlement to its yield. Do you not see that, if the donor or the deceased was a usurper, the heir and the donee take their respective places, so that the heir must return the yield, as must the donee? There are, however, three opinions as to whom the claim should first be made against:

The first is the well-known opinion reported from Ibn al-Qāsim: the claim must first be made against the usurper, and recourse may be had against the donee only if the usurper is insolvent. According to this opinion, if the usurper is found to be insolvent and recourse is therefore had against the donee, there are two opinions as to whether the donee may, in turn, seek reimbursement from the usurper. One holds that he may, which accords with analogy. The other holds that he may not; this is Ibn al-Qāsim’s opinion in the Book of Letting Houses in al-Mudawwanah.

The second is the opinion attributed to someone other than Ibn al-Qāsim in the Book of Claims to Property in al-Mudawwanah. It is also the apparent meaning of Ibn al-Qāsim’s statement in its Book of Partnership, and is Ashhab’s opinion as reported from him by Asbagh in the Book of Merchandise and Agency: the claim must first be made against the donee, and recourse may be had against the usurper only if the donee is insolvent. According to this opinion, if the donee is found to be insolvent and recourse is therefore had against the usurper, there are two opinions as to whether the usurper may, in turn, seek reimbursement from the donee.

The third is that the claimant may seek recovery from whichever of the two he chooses—meaning that neither, if made to pay, has recourse against the other. Ibn Abdūs related this opinion from Ashhab, and Sahnūn adopted it. He compared it to the case of a man who buys food from a usurper and consumes it: the claimant may pursue whichever of the two he chooses;