Should he seize the article furtively with the intent of appropriating it, he is liable for it; yet this manner of appropriation is reported only from Ibn al-Qāsim.

The third manner is exemplified by a person who, upon finding a garment, picks it up thinking it belongs to a group standing before him so that he might ask them about it. If they neither recognize nor claim it, he may return it to the spot where he found it, and—by unanimous agreement among Mālik’s companions—incurs no liability.

A related question over which the jurists have differed concerns a slave who consumes the lost property. Mālik holds that liability attaches to the slave’s person (raqaba): the master must either surrender the slave in satisfaction of the claim or ransom him for the item’s value—provided the consumption occurred before the year of announcement has elapsed. If the slave consumed it after the year had passed, the amount becomes a debt upon him and is no longer linked to his person. Al-Shāfiʿī maintains that if the master knew of the matter, he is responsible; if the master was unaware, liability remains with the slave himself.

They also disagreed as to whether the finder may recover from the owner what he spent on maintaining the article. The majority say that the finder volunteers to safeguard the property and therefore may reclaim nothing. The jurists of Kūfah add that he may not be reimbursed unless the expenditure was authorized by the judge. This, however, belongs to the subsidiary rulings of lost-and-found property, and what has been stated suffices for our purposes in this chapter.

Section on Foundlings (al-Laqīṭ)

The discussion now turns to the rulings governing the act of picking up a foundling, the person who does so, the child himself, and his legal status. Al-Shāfiʿī said: “Every lost being who has no one to care for him must be taken up as a communal obligation (farḍ kifāyah). Whether one must call witnesses—lest the child be enslaved—is a matter of dispute, and that disagreement rests on the broader debate over witnessing in cases of lost property.”

The foundling (laqīṭ) is a minor child who has not reached puberty; if he has reached the stage of discernment, the Shāfiʿī school hesitates over including him in this definition.

The finder (multaqiṭ) must be a free, upright, and prudent person; neither a slave nor a slave on a contract of manumission may assume this role. A non-Muslim may do so only in the absence of a Muslim, for he lacks full guardianship over the child. A Muslim may, however, take up a non-Muslim child. The foundling is removed from the custody of an open sinner or a spendthrift. Wealth is not a prerequisite for the finder, and the child’s maintenance is not automatically the finder’s responsibility; should he spend on the child, he has no right of recourse.

As for the child’s status, he is ruled a Muslim if found in Muslim territory. According to Mālik, the child follows the religion of the father; according to al-Shāfiʿī, he follows whichever parent is Muslim, and this is also the view of Ibn Wahb among the Mālikīs.

Scholars have further disagreed about the child’s legal relationship to the finder. Some say he becomes the finder’s slave; others say he is free but his right of allegiance (walāʾ) belongs to the finder; still others—Mālik among them—hold that he is free and his walāʾ belongs to the Muslim community at large. General legal principles point to this last view, unless a specific textual proof restricts those principles, such as the Prophet’s statement, peace and blessings be upon him: “A woman inherits from three persons: her foundling, her freed slave, and the child for whom she engaged in mutual repudiation (liʿān).”