What is the ruling when a usurped item is mixed with a better or lesser item, or an item of a different genus, making separation impossible?
General Chapter
Al-Mughni
Book of Usurpation
Primary text
When the usurped item is mixed with something better or worse than it, or something of a different genus, the apparent view of Ahmad dictates that the two parties become partners. The entire mixture must be sold, and each party must be given their rightful share. This is because doing so ensures that each receives the physical item (*ayn*) belonging to them, and when return to the original item is possible, return to its equivalent value is not pursued.
Supporting text
If the usurped item's value diminishes due to the mixture, the usurper is liable for the depreciation because it resulted from his action. Al-Qadi maintains that the measure of the school requires the usurper to provide the equivalent (*mithl*) because the item becomes consumed by the mixture, similar to destruction, thereby entitling the owner to its substitute value. However, it is probable that Ahmad's statement applies to mixtures occurring without usurpation. In the case of usurpation, the usurper's action prevented the owner from reclaiming his right in kind from equivalents, obligating him to provide the equivalent, as if he had destroyed it. The exception is if he mixes it with something better and offers the owner the equivalent of his share from the mixture; the owner must accept because some of his right is returned in kind, and the excess in the remainder is a voluntary addition.