What is the ruling on the liability of a usurper when the usurped item is a consumed good that decreases in quantity?
General Chapter
Al-Mughni
Book of Usurpation
Primary text
Abu Hanifa rules that the owner has the choice either to keep the item with no recourse or to surrender it to the usurper and take its full value. This is because, were liability for the decrease enforced, the owner would receive the original measure plus an increase, which is impermissible, analogous to selling a good measure of grain for a lesser measure plus a dirham. The main argument is that the specific identity of the owner's property remains, and only a defect has occurred, thus requiring compensation only for the deficiency, similar to if a slave falls ill.
Supporting text
The critique of Abu Hanifa's position asserts that the item remains the specific property of the owner, and the full value is not a substitute for the decrease. Furthermore, the view stating the owner must take the full value is rejected because the item remains the owner's specific property, not its substitute. The view held by some of Al-Shafi's companions regarding spoilage, where liability for the decrease is absolute but liability for subsequent generated decay is denied, is deemed incorrect because the initial wetting (which might cause spoilage) could also be unintentional by the usurper, and the decay may stem from his actions. There is no difference because what is in the usurper's hand is guaranteed due to its presence there.