Likewise, someone who knows that his property was wrongfully taken in a manifest manner known to others may recover the property itself or its equivalent from the usurper’s property. The same applies if he has a debt claim before the judge, but the debtor delays payment, so he takes an equivalent amount from the debtor’s property, and to similar cases.

The second case is where the basis of entitlement is not evident—for example, where the other person denies the debt or denies having wrongfully taken the property, and the claimant has no evidence.

There are two views concerning this. The first is that he may not take anything; this is the position of Mālik and Ahmad. The second is that he may take what he is owed; this is the position of al-Shāfiʿī. As for Abū Hanīfah—may Allah Most High have mercy on him—he permits taking property of the same kind as that which is owed, because this constitutes recovery of one’s due. He does not permit taking property of a different kind, because that constitutes an exchange, which is permissible only with the debtor’s consent.

Those who permit this say that, if the debtor refuses to discharge his obligation, the exchange becomes permissible without his consent because of the need.

However, those who prohibit taking property when the entitlement is not evident cite the report in the Sunan collections from Abū Hurayrah that the Prophet, may Allah bless him and grant him peace, said:

“Return what has been entrusted to you to the one who entrusted it to you, and do not betray the one who betrays you.”

The Musnad also records that Bashīr ibn al-Khasāsiyah said:

“O Messenger of Allah, our neighbours take anything of ours that strays or is on its own. If we gain access to something of theirs, may we take it?