بسم الله الرحمن الرحيم

Kitāb Al-Buyoo’ (Fiqh Al-Muyassar) Lesson 14 Notes (6 Sha’bān 1446 H - 5/2/25) Continuation... الباب الخامس عشر: الغصب The 15th Subchapter: forcible disposession of property المسألة الأولى: تعريفه وحكمه Definition and Ruling DEFINITION LINGUISTICALLY الغَصْبُ لغة: أخذ الشيء ظلمًا Linguistically: Ghaṣb refers to seizing something unjustly. LEGISLATIVELY الاستيلاء على حق الغير ظلماً وعدواناً بغير حق. Legislatively: it is the unlawful seizure of another person's right through oppression and aggression without justification. BREAKDOWN OF THE DEFINITION: - Seizure of a property (الاستيلاء) is determined by custom - NOTE: Seizure of a Muslim's property by Kuffār during wartime is not considered Ghaṣb. - The term "right" (ḥaqq) encompasses both valuable property and non-valuable property (such as dogs and alcohol). - Right of "Others" refers to those who are protected (المعصوم); (1) Muslim, (2) Dhimmi [non-Muslims under Islamic rule], (3) Mu‘āhid [treaty-bound individuals], and (4) musta’min [those granted safe passage]. - "aggression" excludes certain cases; it's important to identify ghaṣb as it has legal consequences in terms of punishment and liability. For example: (a) If the seizure occurs discreetly, it is classified as theft (سرقة). (b) If the property was entrusted as a deposit and then misappropriated, it constitutes embezzlement (اختلاس) or denial (جَحْد). (c) If it was taken through deception, it is considered plundering (نَهْب). - "Without right" excludes cases where seizure is lawful, such as the judge seizing someone's property or in the case of Jihad, etc. RULING Ghaṣb is impermissible by Qur'ān, Sunnah and unanimous agreement. Qur'ān Allāh said: ﴿وَلَا تَأۡكُلُوۤا۟ أَمۡوَ ٰ⁠لَكُم بَیۡنَكُم بِٱلۡبَـٰطِلِ﴾ "And do not consume one another’s wealth unjustly." [Surah Al-Baqarah: 188] Sunnah The Prophet ﷺ said: ((لا يحل مال امرئ مسلم إلا بطيب نفسه)) "It is not lawful to take the property of a Muslim except with his consent." [Narrated by Ahmad and Al-Daraqutni, authenticated by Al-Albani in Irwa' Al-Ghalil, no. 1459] He ﷺ also said: ((من اقتطع شبرًا من الأرض ظلمًا طُوقَهُ يوم القيامة من سبع أرضين)) "Whoever took a span of land unlawfully would be made to wear around his neck seven earths on the Day of Resurrection" [Narrated by Al-Bukhari, no. 2452-2453, and Muslim, no. 1610] Therefore, anyone who has wrongfully taken another's right must repent to Allāh, seek the owner's forgiveness, and return what was taken before the Day of Judgment, when no wealth will be of benefit. The Prophet ﷺ warned: ((من كانت له مَظْلَمَةٌ لأخيه من عرضه أو شيء، فليتحلله منه اليوم قبل ألا يكون دينار ولا درهم، إن كان له عمل صالح أخذ منه بقدر مظلمته، وإن لم يكن له حسنات أخذ من سيئات صاحبه، فحمل عليه)). "Whoever has wronged his brother in his honor or property, let him seek his forgiveness today, before a time comes when there will be no dinar or dirham. If he has good deeds, they will be taken according to the extent of his injustice. If he has no good deeds, the sins of his victim will be placed upon him." [Narrated by Al-Bukhari, no. 2449] NOTE: The rights of Allāh are based on forgiveness, while the rights of people are based on strict accountability; حقوق الله مبنية على المسامحة وحقوق العباد مبنية على المشاحّة nothing can expiate them, and they remain due to their rightful owners on the Day of Judgment. However, if the wrongdoer sincerely repents, Allāh may pardon him and compensate the wronged person with something better than what he would have received from the wrongdoer. This was mentioned by Ibn Al-Qayyim, citing as evidence the story of the man who murdered a hundred people. NOTE: Ghaṣb is established even if the seized property is of little value, as long as the owner is known. Abu Umāmah Iyās ibn Tha‘labah Al-Hārithī (may Allah be pleased with him) reported that the Prophet ﷺ said: