Shaykh al-Islām—may Allah have mercy on him—was asked about property whose rightful recipient is either entirely unknown or uncertain.

Answer

This is a matter of widespread relevance, for people may come into possession of property they know is unlawful for them because of the rights of others. It may have been acquired unjustly, through forcible seizure and related wrongdoing, theft, or embezzlement; or it may have been received through an invalid transaction involving usury or gambling, while the identity of its rightful recipient is unknown.

Sometimes it is known that the rightful recipient is one of two people, but not which one. Examples include an inheritance known to belong to one of two wives—the one who remained married, rather than the divorced wife—and an item claimed by two people which its possessor attributes to one of them. The position of Imam Ahmad, Abū Hanīfah, Mālik, and the majority of the early generations is that such property should be given to those most entitled to it.

Al-Shāfiʿī’s position is that it must be safeguarded in all cases and must never be spent. Thus, regarding seized property, borrowed items, and deposits held in trust whose owners are unknown, he says that they must be kept until their owners appear, like other lost property. Regarding an item known to belong to one of two people, he says that the matter must be suspended until they reach a settlement.

The position of Ahmad and Abū Hanīfah concerning property whose owner is unknown is that it should be spent on its owners’ behalf for beneficial purposes: