Fiqh al-Ghasb — Wrongful Seizure of Property in Islamic Law: The Duty to Return, the Liability for Damage, and What Happens When the Usurped Property Changes

The Obligation to Return

Return the exact property if possible: If the usurped item still exists and can be returned in its original form, the ghasib must return it. The usurper’s physical possession does not transfer any ownership — the property remains the owner’s in law even while it is in the ghasib’s hands.

Compensation if the property is destroyed or consumed: If the usurper consumed, destroyed, or alienated the property such that it cannot be returned, he must pay its value — assessed at the market value at the time of usurpation (some schools: highest value between usurpation and destruction).

The Liability During Possession

The usurper is liable for all decrease in value during his possession — even damage caused by events he could not control (force majeure). The principle: the usurper’s wrongful possession places him in the position of absolute guarantor of the property.

If an animal is usurped and dies of disease while in the ghasib’s possession, he must still compensate. If a house is usurped and destroyed by flood, he must still compensate.

The Benefit Question

If the usurper profited from the usurped property while holding it — renting it out, using livestock to produce milk, using land to produce crops — what happens to those benefits (manafi’)?

• Maliki and Hanbali: the ghasib must return the benefits or their equivalent in addition to returning the property — he cannot profit from wrongful possession
• Hanafi: the benefits produced from the ghasib’s own labor are his; the property itself is returned
• Shafi’i: benefits that the ghasib did not physically utilize revert to the owner; those he used are compensated

When the Property Changes

If the usurped property changes significantly — the ghasib built on land, mixed grain with his own grain, manufactured goods from raw materials — the schools differ on whether the original owner gets back the modified property (plus compensation for change) or its value.

See also: Fiqh Al Wasatiyyah, Fiqh Al Musharakah, Fiqh Al Waqf, Ilm Al Usul, Fiqh Adl Wa Ihsan