بَابُ اللُّقْطَةِFound Property

¹ The statement: Have witnesses, The apparent command indicates the obligation of witnessing, which is one of Shafi’i’s opinions and Abu Hanifah’s view. There are two opinions on the method of witnessing. First: Testify that a lost item was found without mentioning its details or features, lest a liar use this to claim it. Second: Testify to all its characteristics, so if the finder dies, the heir does not dispose of it. Some Shafi’is suggested a middle ground: Mention some characteristics but not all. An-Nawawi said: This is the sounder view. Shafi’i’s second opinion, along with Malik, Ahmad, and others, is that witnessing is not obligatory but recommended for caution, as the Prophet (ﷺ) did not command it in Zayd ibn Khalid’s narration, and if it were obligatory, he would have clarified it. I say: According to the Hanafis, witnessing is for establishing trust and removing liability only. They differed on this. According to Abu Hanifah, if they witness, there is no liability. If they do not witness and the owner confirms the finder took it to return it, this confirmation removes liability. If the owner denies it and the finder did not witness, they are liable. According to Abu Yusuf and Muhammad, trust is established in two ways: the owner’s confirmation of the intent to return it or an oath. In Al-Bada’i: Liability arises if taken for oneself, as it is usurped, with no dispute. The disagreement is on establishing trust, which relates to liability, either through confirmation or witnessing according to Abu Hanifah, or confirmation or an oath according to Abu Yusuf and Muhammad. If it perishes and the owner confirms the intent to return it, there is no liability by consensus, even without witnessing, as trust is established by confirmation. If denied, Abu Yusuf and Muhammad say there is no liability, witnessed or not, and the finder’s word with an oath prevails. According to Abu Hanifah, if witnessed, there is no liability, as witnessing shows it was taken for the owner, establishing trust. If not witnessed, liability applies. Ash-Shawkani said: The statement, He gives to whomever He wills, is evidence for those who say the finder owns the lost property after announcing it for a year, like Abu Hanifah, but only if poor. They cited, It is Allah’s property, saying what is attributed to Allah is owned by those eligible for charity. I say: The Hanafis did not say it is owned after a year’s announcement. They said it remains the owner’s property, and if a poor finder consumes it, it is consumed under the owner’s ownership by legal permission, not ownership, as the permitted does not own but consumes under the owner’s permission. As stated in Bazl Al-Majhood.

¹ The statement: They ate, There is no indication of not announcing it or not waiting until it is likely the owner will not claim it. The “fa” may indicate mere sequence, not immediate succession, depending on the context. For example, it is said, “So-and-so married, and a child was born to him,” even if the interval is only the pregnancy period, though it is long. Allah says: Have you not seen that Allah sends down water from the sky, and the earth becomes green? [Al-Hajj: 63]. As stated in Al-Marqah. In Nasb Ar-Rayah: Perhaps the interpretation is that announcement has no specific form to be valid, and consulting the Messenger of Allah (ﷺ) publicly is an announcement, supporting sufficing with one announcement. They differed on the announcement period. Muhammad, Malik, and Shafi’i set it at a year, regardless of value, based on some narrations’ apparent meaning. The sounder view according to Abu Hanifah and Abu Yusuf is that it is not fixed but delegated to the finder’s judgment, announcing until they believe the owner will not claim it. This is the chosen view of Shams Al-A’immah As-Sarakhsi, and the fatwa is based on it, as in Jami’ Al-Mudmarat and Al-Jawhara. The mention of a year in the narration is incidental, based on the norm, as stated in Sharh Al-Wiqayah, Umdat Ar-Ri’ayah, and Al-Luma’at. ² The statement: Announced it for three days, This supports Shams Al-A’immah’s chosen view that fixing a year or otherwise is not binding, but it is until the finder is satisfied the owner has given up. As stated in Fath Al-Qadir. ³ The statement: Announce it, etc., The sounder view is that no fixed announcement period is binding, and it is delegated to the finder’s judgment due to this narration’s generality. The restriction to a year may be because the property in question required it. As stated in Al-Marqah. ⁴ The statement: Announced it for a year, etc., This supports Shams Al-A’immah’s view that a year is not a fixed requirement, but it depends on the finder’s belief about the owner’s intent, varying by the property’s value. Since it was valuable, he was ordered to announce for three years. As stated in Fath Al-Qadir. ⁵ The statement: Use it, This narration apparently contradicts the Hanafis’ view that a rich finder may not use it. The narration suggests a rich finder may use it, as Ubayy ibn Ka’b was among the Prophet’s wealthy companions, yet the Messenger of Allah (ﷺ) permitted him to use it. The response is the narration in the two Sahihs from Abu Talhah: “O Messenger of Allah, Allah says, You will not attain righteousness until you spend of what you love [Aal-E-Imran: 92]. The property I love most is Bayrha’. What do you think, O Messenger of Allah?” He said, “Give it to the poor among your relatives.” Abu Talhah gave it to Ubayy and Hassan. This clearly shows Ubayy was poor, though he may have become wealthy later. When circumstances allow for probability, evidence is weakened. As stated in Bazl Al-Majhood and Nasb Ar-Rayah, summarized. In Al-Hidayah: Ubayy’s use was with the leader’s permission, which is permissible. Tirmidhi said after Ubayy’s narration: This is the practice among scholars, the view of Shafi’i, Ahmad, and Ishaq, who said the finder may use it if rich. If found property were only lawful for those eligible for charity, it would not be lawful for Ali ibn Abi Talib, yet he was ordered to consume the dinar when he found it and no one recognized it. Tirmidhi’s point is that use does not mean charity. Imam As-Sarakhsi responded in Al-Mabsut: Regarding Ali’s narration, obligatory charity was not lawful for him, but this was not of that type. It was voluntary charity, permissible for the Prophet’s family according to most of us, so we permit found property for ascendants and descendants, distinguishing between zakat and giving found property in charity. As stated in Bazl Al-Majhood and Al-Arf Ash-Shadhi. ⁶ The statement: Give it in charity, etc., Al-Qadi said: If someone finds property, announces it for a year, and the owner does not appear, they may own it, whether rich or poor, as held by Shafi’i and Ahmad. Ibn Abbas said: The rich give it in charity and neither use nor own it, as held by Abu Hanifah’s companions, supported by this narration. As stated in Al-Marqah. ⁷ The statement: It is narrated from Ibn Abbas, etc., As stated in Al-Marqah. ⁸ The statement: Then consume it, and if its seeker comes, deliver it to them, Al-Hafiz said: Scholars differed on whether, after announcing for a year and disposing of the property, the finder is liable if the owner comes. The majority said the item must be returned if it exists, or its value if consumed. Al-Karabisi, a Shafi’i companion, disagreed, as did Bukhari and Dawud ibn Ali, the Zahiri leader, though Dawud agreed with the majority if the item exists. The majority’s evidence includes the upcoming narration, Let it remain a trust with you, and Muslim’s narration, Note its container and tie, then consume it, and if its owner comes, deliver it to them, and more explicitly, Abu Dawud’s narration: If its seeker comes, deliver it to them; otherwise, note its container and tie, then consume it, and if its seeker comes, deliver it to them. The command to deliver it before and after permitting consumption is the majority’s strongest evidence. As stated in Bazl Al-Majhood. ⁹ The statement: Deliver it to them, Meaning if the claimant proves its mark, it is lawful to deliver, but not obligatory without proof, according to us. Shafi’i said delivery is obligatory if the mark is proven. According to us, delivery is not judicially required without evidence, but conscientiously, it should be returned. As stated in Sharh Al-Wiqayah and Al-Arf Ash-Shadhi. In Al-Inayah: We say the command in this narration must be interpreted as permission to reconcile with the well-known narration, The burden of proof is on the claimant. If not interpreted as permission but obligation, it would lead to contradiction necessitating abandonment. ¹⁰ The statement: Spend it, etc., This indicates clearly that found property is a trust with the finder. The command to spend on oneself is not for ownership but because its purpose is charity. If the finder is poor and needy, it is permitted to give charity to oneself, as the Messenger of Allah (ﷺ) ordered delivery to the owner after spending, meaning the item if it exists or its value if consumed. As stated in Bazl Al-Majhood.

¹ The statement: Use it, Imam As-Sarakhsi said in Al-Mabsut: Found items are of two types. First: Those the owner is unlikely to seek, like pomegranate peels or date pits. Second: Those the owner is likely to seek. The first type may be taken and used, but if the owner finds it in the finder’s possession after collecting it, they may take it, as the owner’s discarding it permits use, not ownership, as ownership from an unknown person is invalid. The owner’s ownership does not cease by permission, but the permitted may use it while the owner’s ownership remains. If the owner finds it, they find their property, as the Prophet (ﷺ) said, “Whoever finds their property is most entitled to it.” The second type, which the owner seeks, must be preserved and announced to return to its owner. Summarized. I say: If a stick, whip, or rope is among trivial items the owner does not seek, it need not be announced, and the finder may use it. If it is of the second type, it may not be used, and announcement is required based on its value. As stated in Bazl Al-Majhood.

¹ The statement: Immediately, In Al-Hidayah: If it is something the owner is unlikely to seek, like date pits or pomegranate peels, discarding it permits use without announcement, but it remains the owner’s property, as ownership from an unknown person is invalid. ² The statement: Stray camels, etc., Its apparent meaning is that stray camels should not be taken, as there is no fear of loss, as held by Shafi’i, Malik, and Ahmad for cows, camels, and horses, preferring leaving them. Our scholars and others said this was due to the prevalence of righteous people then. In our time, there is risk of dishonest hands, so taking it preserves it, making it preferable. Ibn Al-Humam elaborated on this. This is supported by Uthman’s practice, as times changed, ordering announcement after taking due to fear of betrayal, then sale, with the price held in the treasury for the owners. As stated in At-Ta’liq Al-Mumajjad.

¹ The statement: Is astray unless they announce it, This restricts going astray to one who does not announce, so there is no evidence for those who dislike found property absolutely in Umar’s report or the saying, “A Muslim’s stray is the fire’s fuel,” as we interpret it as taking without announcement. As stated in At-Ta’liq Al-Mumajjad.

¹ The statement: Use it, Scholars differed on found property in Makkah. One group said it is not lawful to own after announcement; the finder must preserve it forever for its owner, only announcing it until the owner comes, based on the saying about the Sanctuary: “Its found property is not lawful except for its announcer,” as held by Shafi’i. Another group said there is no difference between the Sanctuary and elsewhere; its ruling is like other places, as held by Abu Hanifah, Malik, and Ahmad. Ibn Al-Mundhir said: We narrate this view from Umar, Ibn Abbas, Aishah, and Ibn Al-Musayyib, supported by these reports and the general saying, Note its container and tie, and announce it for a year, without distinguishing between the lawful and the Sanctuary. Giving it in charity after the announcement period preserves the owner’s ownership in a way, as it earns reward, like other cases. The saying about Makkah, Its found property is not lawful except for its announcer, does not contradict, as it means it is only lawful for one who announces, not for themselves. Specifying Makkah is to dispel the notion that announcement is unnecessary due to Makkah being a place of strangers coming from afar and dispersing, suggesting the property is likely a stranger’s with unknown return, making announcement futile. The Messenger of Allah (ﷺ) dispelled this by saying, Its found property is not lawful except for its announcer. The saying, He prohibited the found property of pilgrims, as Ibn Wahb said in Al-Fath, means to leave it until its owner comes. This is not practiced today due to widespread theft in Makkah, even around the Ka’bah, let alone abandoned items. Rulings established with a condition, if contradicted with a corrupting factor, are discontinued, unlike rulings established for a reason whose absence does not corrupt continuity, like brisk walking and uncovering the shoulder in tawaf to show strength. Summarized from Umdat Al-Qari, Al-Marqah, Al-Binayah, and Fath Al-Qadir.

¹ The statement: In the Book of Allah, meaning in His rulings and obligations. The term “Book” often refers to obligation. This is used by the followers of Abu Hanifah as evidence for the inheritance of distant relatives, supported by the hadith of Al-Miqdam: “The maternal uncle is the heir of one who has no heir.” As stated in Al-Marqah.

² The statement: And those with whom you have made a pledge, The author of Al-Madarik said: This refers to the contract of alliance, which is legislated, and inheritance through it is established according to most Companions, and this is our view. Shafi’i said: Alliance is nothing, as it nullifies the right of the public treasury. Our evidence is this verse, which pertains to alliance. As stated in At-Tafsir Al-Ahmadiyyah.

³ The statement: And Allah will never grant the disbelievers a way over the believers, As stated in Umdat Al-Qari: A disbeliever does not inherit from a Muslim by consensus, supported by the hadith and this verse. Inheritance establishes a way for the disbeliever over the Muslim.