What is the recourse if the usurper is unable to return the specific usurped item (e.g., a runaway slave or escaped animal)?
General Chapter
Al-Mughni
Book of Usurpation
Primary text
If the usurper is incapable of returning the item, the owner may demand its value (badal) instead. Upon accepting the value, the owner takes ownership of the value, and the usurper does not gain ownership of the original item; he must return the item if he ever gains control of it and must then refund the value he paid. This is the position of Al-Shafi'i. The owner is also entitled to return the item along with any separable (munfasil) and inseparable (muttasil) increases, and the fair wage for its use up to the point the value was paid.
Supporting text
Abu Hanifa and Malik permit the owner the choice: either to wait until the item can be returned, whereupon he takes the item, or to hold the usurper liable for its value, which then transfers ownership of the item to the usurper. This is analogous to a sale or mixing of oils. The counter-argument is that usurped property cannot legally be transferred by compensation (tadmin) just as it cannot by sale, and that the payment is compensation for the inability to return, not a purchase.