[The Book of Istiḥqāq—Rightful Claim]
The main focus of this Book is the legal rulings that govern claims of rightful ownership. Its fundamental premises may be summarized as follows:
When an article that the Sharīʿah recognises as belonging to a given person passes—by way of purchase—into the hand of another, the subsequent claim may relate to a small part of that article, to the whole of it, or to the greater part of it. If the whole or most of it is claimed, one must next determine whether, while in the possessor’s hand, the article has undergone any alteration—an increase or a decrease—or has remained as it was, and whether the possessor acquired it for a monetary price (thaman) or in barter (mathmūn).
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If the claim concerns only a minor portion of the article, Mālik holds that the buyer may have recourse against the seller solely for the value of the part taken from him; he may not rescind the sale in its entirety.
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If the claim involves the entire article or the greater part of it and the article is unchanged, the rightful owner simply repossesses it, and the buyer turns to the seller to recover the price he paid. Where the acquisition was by barter, he may reclaim the very item he gave in exchange—provided it too has not changed; but if it has altered so as to differ in value, he is entitled instead to its value on the day of purchase. Should the contested property have been sold on, the claimant may either ratify the sale and take the price, or take back the article itself. Such is the ruling so long as the claimed object has not been altered.
When the object has changed, the alteration is either an increase or a decrease.
a) Increase. The increase may be attributable to the possessor’s own action or be intrinsic to the object itself.
• An intrinsic increase belongs to the claimant—for example, a female slave who becomes stout or a boy who grows older.
• An increase produced by the possessor—such as a purchaser who builds upon a house that is later claimed—gives the claimant three options: he may pay the possessor the value of the improvement and take back his property; he may require the possessor to pay him the value of the land and keep it; or they may become partners, each owning a share in proportion to the value he contributed. This was the judicial ruling of ʿUmar ibn al-Khaṭṭāb.
If the increase takes the form of offspring generated while the article was in the possessor’s hand—such as one who buys a female slave, she bears him children, and is then claimed, or he marries her off on the assumption that she is free but she is later found to be a slave—scholars agree that the claimant may not seize the children themselves, though they disagree on whether he may claim their value. As for the mother, some say he may take her in person, while others say he may take only her value.
If the child is the product of a valid marriage and the woman is afterwards adjudged a slave, there is no dispute that her master may reclaim her, and that the husband may recover the dowry from the one who deceived him; and when we oblige him—