by way of compensation—whether it is the stipulated consideration, its customary equivalent, or something similar.

The distinction between the two forms of taking possession rests on two points:

First, in the former case, possession is taken without the owner’s permission, whereas in the latter it is taken with his permission.

Second, in the latter case, possession is required by a contract, albeit a defective one, whereas in the former no contract whatsoever requires it. For this reason, the apparent position of our school requires the stipulated dower in an invalid marriage contract; one of the two views likewise requires the stipulated consideration in an invalid profit-sharing investment contract and similar arrangements.

If the property taken into possession under the contract still exists and the recipient wishes to return it, he returns it. If it is no longer available, he returns an equivalent in kind, where possible. When neither the property itself nor an equivalent can be returned, compensation must be given. This applies, for example, when the item sold is not replaceable in kind but must instead be assessed by value; when benefits have already been enjoyed under an invalid lease; or when a worker has performed work under an invalid partnership arrangement, such as an orchard-tending or profit-sharing investment contract.

Some jurists of our school, in agreement with al-Shāfiʿī, require payment of the value in such cases. Their reasoning is that what is owed is restitution of the property or benefit itself; since neither it nor its equivalent can be restored, its value becomes payable, just as when liability arises through destruction or usurpation.

Al-Shāfiʿī extended this principle to a stipulated dower in marriage that is invalid or consists of usurped property, requiring instead a dower commensurate with that of comparable women. His reasoning was that the right to marital intimacy ought to have been restored because the stipulation was invalid; since it could not be restored, its substitute became payable, namely, a dower commensurate with that of comparable women. Some jurists of his own school disagreed with him.