Book of Lost Property
First Section: Its Constituent Elements
The treatment of lost property comes under two broad headings:
- Its constituent elements, and
- Its legal rulings.
As for the first, its elements are three: (i) the act of picking it up, (ii) the person who picks it up, and (iii) the article itself.
a) The act of picking it up
The scholars differed as to whether it is better to pick up a lost article or to leave it where it lies.
Abū Ḥanīfah held that picking it up is preferable, for it is obligatory upon a Muslim to safeguard his brother’s property; al-Shāfiʿī shared this view.
Mālik and a group of scholars—among them Aḥmad, and it is reported from Ibn ʿUmar and Ibn ʿAbbās—considered the act disliked, for two reasons:
- The ḥadīth in which the Prophet, peace and blessings be upon him, said, “The stray property of a believer is a burning coal.”
- The fear that one may neglect the duty of announcing it properly, or overstep the bounds by using it.
Those who prefer picking it up interpret the opening words of the ḥadīth as referring to taking it for personal use, not to taking it in order to publicize it.
Some scholars even held that picking it up is obligatory.
It has also been said that this disagreement applies only when the article is found among trustworthy people and the ruler is just. They explain:
• If it is found among untrustworthy people while the ruler is just, picking it up is obligatory.
• If it is found among trustworthy people while the ruler is unjust, it is better not to pick it up.
• If it is found among untrustworthy people and the ruler is likewise unjust, the finder may choose, according to which option he deems more likely to secure its safety.
All of this, however, excludes the lost property of pilgrims, for the scholars are unanimously agreed that it may not be picked up, the Prophet—peace and blessings be upon him—having forbidden it. The same ruling applies to anything lost in Mecca: it may be taken only by one who will publicly announce it, on account of the explicit text.
Two wordings have been transmitted on the matter, one of which states: “Its lost property is not to be removed except by one who will proclaim it.”