What is the legal status of game animals owned by a person who subsequently enters the state of Ihram (consecration for Hajj or Umrah)?
Chapter on Ransom (Fidyah) and Penalty for Hunting
Al-Mughni
Book of Hajj
Primary text
Ownership and the legal title (hand/possession) of game animals owned by a person before entering Ihram do not cease. This applies whether the game is in his land or in the possession of his agent in another location. If the game dies while the person is in Ihram, no liability falls upon him. He retains the right to dispose of it through sale, gift, or other transactions. If someone usurps the game, the person in Ihram must demand its return and is obligated to remove any direct physical control over it. Direct physical control means if the game is in his custody, baggage, tent, cage with him, or tethered to him, he must release it. Malik and the Hanafi scholars hold this view.
Supporting text
Al-Thawri holds that the person in Ihram is liable (a guarantor) even for game kept in his house. This view is also narrated concerning Al-Shafi'i. Abu Thawr and one narration from Al-Shafi'i state that he is not obligated to release what is in his physical possession because it is in his possession, similar to constructive possession, and preventing the initiation of hunting does not necessitate preventing its continuation, as evidenced by game within the Sanctuary (Haram).