Is a person who takes an animal whose capture is generally forbidden (as 'lost property') liable for its value?

General Chapter

Al-Mughni

Book of Lost-and-Found Property

Book 29 · Issue 1 · Bab 1

Open in Qurani

Primary text

Any person, whether an Imam or otherwise, who takes an animal that is not permissible to take as found property is liable for its value. This liability arises because the taker has seized the property of another without permission, and without authorization from the Lawgiver, thus rendering the taker equivalent to a usurper (ghasib). The obligation of guarantee does not cease merely by returning the animal to the place where it was found; this is the position held by Al-Shafi'i. The primary evidence supporting the view that the guarantee only ends upon returning the item to its owner or the owner's representative is analogous to stolen or usurped property.

Supporting text

Imam Malik holds that the liability is discharged upon returning the animal to the place of finding. This view is supported by the report that 'Umar (may Allah be pleased with him) commanded, 'Send it back to the place where you found it,' and the instance of Jarir driving a stray cow back to his herd.