What is the ruling on a creditor taking property when the debtor denies the debt or refuses legal arbitration, and the creditor lacks proof?
General Chapter
Al-Mughni
Book of Claims and Evidences
Primary text
If the creditor is unable to enforce collection because the debtor denies the debt without supporting evidence, or refuses judicial process which cannot be compelled, the famous opinion within the Madhhab dictates that the creditor is not permitted to take the equivalent of his right. This represents one of the narrations from Malik.
Supporting text
The later scholars of our school of thought derived a basis for permitting the taking based on the Hadith of Hind, where the Prophet, peace be upon him, instructed her: 'Take what suffices you and your children justly (bil-ma'ruf).' Abu Al-Khattab derived the permissibility of taking based on this Hadith and the statement of Ahmad regarding the mortgaged property—that it may be ridden or milked to cover its maintenance costs—and that a wife may take her necessities, and a seller may take the item from the bankrupt's estate without consent.