As for property that cannot be moved or transported, such as real estate, the majority state that liability attaches by the very act of usurpation—that is, if a house collapses, its value must be paid. Abū Ḥanīfah, however, holds that no liability is incurred.

Pillar Three: What is owed in cases of usurpation

If the usurped property remains with the usurper exactly as it was, unaltered by increase or decrease, he must return that very item; there is no disagreement on this. If the item itself has perished, the jurists agree that when the thing is sold by measure or weight the usurper must replace it with its like (meaning an equivalent in both quality and weight).

They differ concerning other goods. Mālik rules that with respect to all chattels—animals and otherwise—judgment is for their value on the day they were consumed. Al-Shāfiʿī, Abū Ḥanīfah, and Dāwūd maintain that what is due is a like replacement, and that resort to value is required only when no like can be found.

Mālik’s chief proof is the well-known ḥadīth of Abū Hurayrah in which the Prophet—peace and blessings be upon him—said: “Whoever frees his share in a slave, the remaining shares are appraised for him at a fair market value…” The evidence is that the partner was not obliged to supply a like slave but was compelled to pay its value.

The second group relies on the Almighty’s words:

“Then the recompense is an offering equivalent to the one he has killed, from the livestock” (al-Māʾidah 5:95),

and on the consideration that the benefit derived from a thing may be the very objective of the person wronged.

Among their proofs as well is the report transmitted by Abū Dāwūd from Anas and others:

“The Messenger of Allah—peace and blessings be upon him—was in the house of one of his wives when another Mother of the Believers sent a servant with a dish containing food. She struck it with her hand and broke the dish. The Prophet—peace and blessings be upon him—picked up the two pieces, fitted one to the other, placed all the food in it, and kept saying, ‘Your mother has become jealous. Eat, eat,’ until her own dish arrived from her house. The Messenger of Allah—peace and blessings be upon him—then kept the sound dish until they had finished, returned it to the messenger, and retained the broken one in his house.”

In another narration: “It was ʿĀʾishah who became jealous and broke the vessel. She asked the Messenger of Allah—peace and blessings be upon him—‘What is the expiation for what I have done?’ He replied, ‘A vessel for a vessel, and food for food.’”

Chapter Two: Subsequent Events Affecting Usurped Property

Subsequent events that affect usurped property are either increases or decreases, and each may arise from a created cause or from the Creator.

When the decrease is by a heavenly cause, the owner has only the choice of taking it in its diminished state or demanding its value on the day of usurpation; it is also said that he may take it and the usurper must pay the value of the defect.

If, however, the decrease results from the usurper’s own wrongdoing, then, according to the school, the owner has the option either to require payment of its value on the day of usurpation or