Is usurpation (Ghasb) established concerning that which is not property, such as a free person?
General Chapter
Al-Mughni
Book of Usurpation
Primary text
Usurpation is not established for that which is not considered property, such as a free person. A free person is not guaranteed as a liability through usurpation, but only through destruction (Itlaf). If a free person is seized and held until death, the captor is not liable for their value because the person is not property. If the captor utilizes the free person against their will, the captor must pay compensation equivalent to the usufruct value because the usufruct was enjoyed, and usufructs are valued and thus liable, similar to the usufruct of a slave. This ruling is held by Abu Hanifa and Al-Shafi'i.
Supporting text
If a free person is held for a duration for which no wage is typically paid, there are two views: one holds that the value for that period is due because the usufruct, which is valued property, was prevented, thus warranting liability through usurpation, like the usufruct of a slave. The second view holds that no compensation is due because the usufruct is ancillary to something whose usurpation is invalid, similar to the free person's clothes wearing out while on them, or because the usufruct perished under the hand of the captor, for which no liability is established as previously noted.