Is the usufructuary benefit (Zawa'id) derived from usurped property liable for guarantee (Daman) by the usurper?

General Chapter

Al-Mughni

Book of Usurpation

Book 22 · Issue 1 · Bab 1

Open in Qurani

Primary text

The usufructuary benefits accruing from usurped property, such as fats, acquired skills, tree fruits, and animal offspring, are guaranteed by the usurper upon their destruction while in his possession. This liability applies whether the item is destroyed in isolation or along with its principal source. This ruling is held by Al-Shafi'i. The reasoning is that these additions constitute the property of the dispossessed party and came into the usurper's possession through the act of usurpation; therefore, the usurper guarantees them against destruction, similar to the principal property. Furthermore, the argument that the establishment of the usurper's possession over these additions is not his own doing is invalid because retaining the original usurped item constitutes causing his possession over the additions to be established, and possessing the original item is prohibited.

Supporting text

Abu Hanifa and Malik hold that the usurper is not liable for the guarantee of the usufructuary benefits unless the owner demands them and the usurper refuses to hand them over. They argue this because these additions were not directly usurped, making them akin to a deposit (Wadi'ah). They posit that since the act resulting in the growth of these additions (the growth itself) is not a prohibited act by the usurper, his possession over them is not established by a prohibited act.