On Muslim Property Taken into the Possession of Polytheists

Scholars differed over whether polytheists acquire ownership of Muslim property by taking possession of it. There are three views: first, that taking possession does not confer ownership; second, that it does; and third, that a distinction is drawn between property they seize by force and slaves who flee to them.

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According to the view that taking possession does not confer ownership, the original owners retain their title to the property. If the Muslims capture it as spoils, it is not distributed with the spoils but returned to its owners if they are known, or held for them if they are unknown. If its previous Muslim ownership becomes known only after it has been distributed, and its owners then come forward, they recover it without payment, under the rules governing recovery by rightful ownership. This is the view of al-Shāfi‘ī, Abū Thawr, one of the two views reported from al-Awzā‘ī, and a number of other scholars.

Their evidence from transmitted reports is “the hadith of ‘Imrān ibn Husayn concerning al-‘Adbā’, the she-camel of the Messenger of Allah, may Allah bless him and grant him peace. The polytheists seized her in a raid on Medina’s grazing herds. A woman escaped on her and vowed that, if Allah brought her to safety on the camel, she would slaughter it. When she brought it to Medina, the camel was recognized and brought to the Prophet, may Allah bless him and grant him peace, who took it back, as related in some reports. The woman told him of her vow, and he said: ‘How ill you have repaid her! No vow is binding if it involves disobedience to Allah or concerns something a person does not own.’”

The point of evidence in the hadith is that, if the polytheists had acquired ownership of the camel,