Book of Usurpation (Ghassb)
First Section: Liability for Usurped Property
This section comprises two chapters.
Chapter One: On Liability
It contains three pillars:
- The factor that gives rise to liability;
- The property for which liability is incurred; and
- The obligation that must be fulfilled.
Chapter Two: On subsequent events that befall the usurped property.
Chapter One — On Liability
Pillar One
The factor that renders one liable is either:
• the direct act of seizing the usurped property or destroying it;
• the direct performance of a causative act that leads to destruction; or
• the establishment of control over the property.
The jurists differ about a causative act whose liability arises through direct involvement when the destruction itself occurs by way of another factor: does such a person become liable or not? An example is someone who opens a cage containing a bird, after which the bird flies away.
Mālik holds that he is liable for it, whether or not he actually provoked the bird to fly.
Abū Ḥanīfah maintains that in no circumstance is he liable.
Al-Shāfiʿī distinguishes between provoking the bird and not provoking it, ruling that liability attaches if he provoked it, and does not attach if he did not.
A comparable case is one who digs a well and something falls into it and perishes. Mālik and al-Shāfiʿī say: If he dug it in a location where such digging constitutes transgression, he is liable for whatever perished in it; otherwise he is not. This is consistent with Abū Ḥanīfah’s principle that there is no liability in the bird-cage scenario.
Is intention a requisite for direct transgression or not? The more prevalent opinion is that property must be compensated for whether the act was deliberate or accidental, though the jurists have disagreed over particular sub-issues within this chapter.
Is voluntary action required? The established view according to al-Shāfiʿī is that it is: therefore he imposed liability on a person coerced into destruction—that is, one forced to commit the damaging act.
Pillar Two
With respect to the property for which liability arises: it covers every asset whose substance has been destroyed, or that perished while in the usurper’s possession through a cause from heaven, or upon which another hand was laid and ownership transferred. Concerning movable property, this is agreed upon.
And they differed