What is the obligation when a fungible item (mithli) that was wrongfully taken perishes?
General Chapter
Al-Mughni
Book of Usurpation
Primary text
If a fungible item that was wrongfully taken perishes, the obligation is to return its equivalent (mithl). If the equivalent cannot be found, the value (qimah) must be paid, calculated based on the value on the day the equivalent became unavailable. This is established because the liability for payment was established at the moment the equivalent became impossible to obtain, similar to the loss of a valued item (mutaqawwam). The evidence for this timing is that the owner has the right to demand and take the value immediately upon the impossibility of obtaining the equivalent, and the usurper is obliged to pay it. Furthermore, if the equivalent becomes available again after its loss, the obligation to return the equivalent revives, as it is the original liability, provided this occurs before the substitute value has been rendered.
Supporting text
Al-Qadi holds that the value is due on the day the substitute payment is received, arguing that the obligation to return the equivalent existed only until the receipt of the substitute, evidenced by the fact that if the equivalent were found later, only the equivalent, not the value, would be due. Abu Hanifa, Malik, and the majority of Al-Shafi'i's companions rule that the value is due on the day of judgment because the monetary liability only transfers to the usurper's debt upon the judge's ruling.