If one of two sons acknowledges a third brother, while the other denies his claim, the acknowledging son must give the acknowledged brother whatever exceeds his own rightful share—namely, one-sixth of the estate—according to the schools of Mālik and Ahmad ibn Hanbal. This is also the apparent position of al-Shāfi‘ī’s school and the view of the majority of the early generations. They regarded what the denying brother wrongfully seized as belonging exclusively to the acknowledged brother, because he did not intend to take any part of the acknowledging brother’s rightful share.

Abū Hanīfah, however, held concerning the wrongful seizure of undivided jointly owned property that whatever the usurper takes comes from both partners’ shares, considering the outward act of taking possession without regard to intention.

Likewise, he held concerning the denying brother that whatever he wrongfully seized comes from both brothers’ shares. Accordingly, the acknowledging brother gives the acknowledged brother half of what he holds—namely, one-quarter of the estate—while the half wrongfully seized by the denying brother is reckoned as coming from both of them. This is also one opinion within the schools of Ahmad and al-Shāfi‘ī. The majority’s view is correct because intention must be taken into account. Likewise, in the case under discussion, the oppressor took payment only on behalf of the person from whom it was demanded; he did not intend to take the payer’s property.

If it is objected:

“What if the oppressor makes a mistake—for example, highway robbers intend to take one person’s property but take someone else’s, mistaking him for the first? Must the first person compensate the person they mistook for him for the property taken?”

The answer is:

Cases of mistake involve distinctions that this is not the place to discuss. Nevertheless, the difference between the two situations is clear: they are not alike. The mistaken oppressor who took this person’s property did not take it on someone else’s behalf. Rather, he thought it was Zayd’s property, but it turned out to belong to ‘Amr. He intended to take Zayd’s property but took ‘Amr’s, just as someone who sought to kill a person whose life is inviolable