Can the owner of the garment compel the usurper to remove the dye?

General Chapter

Al-Mughni

Book of Usurpation

Book 22 · Issue 3 · Bab 1

Open in Qurani

Primary text

There are two differing views on whether the garment owner can force the removal of the dye. One view states that the owner can compel the removal, similar to compelling the removal of trees from one's land, because the usurper has occupied the owner's property with his own property in a way that permits separation. The usurper is then liable for the garment's diminished value and the cost of removal, even if the usurper incurs loss. The second view states that compulsion is not possible because the dye is destroyed upon extraction, and since the rightful owner's right could be secured without removal (by sale), forced removal is not incumbent, similar to uprooting crops.

Supporting text

Al-Qadi stated that the apparent view of Ahmad favors the second opinion, perhaps derived from Ahmad's stance on crops, yet this conflicts with trees, which are subject to forced removal whether they are destroyed or not. Furthermore, the Shafi'i school holds two views mirroring these two positions.