What is the ruling if a debtor steals an amount equivalent to his debt from the creditor's secured property?
Chapter on Amputation in Theft
Al-Mughni
Book of Ḥudūd (Prescribed Penalties)
Primary text
If a debtor steals an amount equivalent to his debt from the creditor's secured property, the ruling is examined based on the creditor's situation. If the usurper or the debtor was offering to return what was due or was not refusing to pay, or if the owner was able to take his property and chose instead to steal from the usurper or debtor, then amputation is required because there is no justification (*shubha*) for the theft. However, if the debtor was unable to secure repayment of his debt or compensation for his injury (*arsh janayatihi*) and stole only the equivalent amount of his due, then there is no amputation.
Supporting text
The Qadi ruled that amputation is due, based on the fundamental principle that taking an equivalent amount of debt is not permissible. However, the primary legal stance is that since the permissibility of this act is debated, the fixed punishment (*hadd*) is not incumbent, similar to intercourse within a marriage whose validity is disputed. The prohibition against taking does not negate the doubt arising from the scholarly disagreement, and fixed punishments are waived by doubt. If he steals more than his debt, the ruling reverts to the case where the wrongfully dispossessed person steals more than his property.