Pre-emption (in Islamic law) exists only in respect of things jointly owned. There can be no right of pre-emption in articles already divided.
There is no right of pre-emption in respect of a neighbour or in a path or the courtyard of a house whose rooms have already been divided; nor in respect of a male date-palm or well, when the palm trees or the land have already been divided. Moreover there can only be a case of pre-emption in respect of lands or what is attached to it, such as buildings or trees. The right to claim pre-emption lapses if it is not exercised for a whole year, if the claimant has been present all the while. But the person who has been away shall continue to have right to pre-emption even if he has been away for a long time. The holder of pre-emption receives his guarantee from the buyer. Besides the pre-emptor is made to choose between exercising his right or abandoning it. The right of pre-emption cannot further be given away or sold. It is divided between the joint owners of it in accordance with the fractions they owned.
A gift, alms, or pious endowment are incomplete unless they are taken over by those to whom they are given. If the benefactor should die before such formal taking over is effected, they shall be treated as part of the legacy, except where these are taken over while the deceased is sick. Under such a circumstance they can be executed so long as they do not exceed one-third of the legacy, and if the beneficiaries are not heirs of the legacy.
A gift to a relative or a poor person is like alms. It cannot be withdrawn. Also, if a person gives alms to his son, he cannot take it back. But he is permitted to take back what he gives to his minor son, or even a grown-up son, as long as he did not use the property in getting married or give the money on loan, nor indeed converted the object of the gift into something else. A mother can withdraw her gift as long as the father remains alive. But if the father is dead, she cannot take back the gift she made to her son.
Further, a gift given to an orphan cannot be taken back, Moreover, orphanhood, it should be stated, arises as a result of a father's death. Again, the gift bestowed by a father to his minor son can be taken over on the child's behalf by the father, that is, if the son did not live in that particular house, or did not wear the garment, if the gift is of a dress. In other words, the 'hiyazah' or taking over the articles gifted can be effected by the father on behalf of a minor son, if that article is such that it can be identified. But, as for a son who has attained maturity, his father cannot effect a hiyazah or taking possession of an article gifted on his behalf.
A man cannot withdraw alms after giving it away. Nor can the alms go back to him except through inheritance. There is no harm, in law, for a person who gave alms (of a cow, sheep or goat) to drink of the milk of the beast he has given away as alms. But one cannot buy back such articles he gave away as alms. However if one is given a gift, but the giver expects something in return, the recipient of the gift shall have the option of either giving to the giver some articles of equal value to the gift or return the gift. But if the article of the gift is consumed or used up, the recipient shall be under an obligation to give back its value. But that shall be so if it can be seen that the donor expects to receive some recompense for the gifts he made. Besides, it is reprehensible for a father to give some of his children all his property. However, he is permitted to give away some of it. Also a man is permitted to give away to poor people the whole of his property.
If a man made a gift which has not been taken over by the person to whom it was given until the donor became sick or was declared bankrupt, it now becomes unlawful for him to take it over. But if the man to whom the gift was given should die, his heirs can claim it from the donor if he has not been declared bankrupt.
If a man made an endowment for a house, it should be used for the purposes he intended if it has been taken over before his death; but if the endowment was made in favour of his minor son, the hiyazah by the deceased on behalf of the minor son shall be in order until the son reaches puberty. But let him hire it out and not live in it. But if he did not stop occupying the house until he died, that prolonged stay nullifies the endowment.
If the people for the benefit of whom a house is endowed died out, the house shall be an endowment for the man who is closest to the benefactor on the day the extinction of the original beneficiaries become complete.
If a man should create an 'Umra' (giving a person or persons the right to dwell in a house free of charge for as long as the person lives, on the understanding that the right shall lapse the moment the beneficiary dies), the house in question shall revert to the original owner the moment the beneficiary dies and the dwelling once again reverts as the property of the owner. Similarly if a man created an Umra to take effect after his death, the property shall revert to him if the beneficiaries should die out. This is different from pious endowment, for, the moment the creator of Umra dies the property goes back to his heirs.
In respect of pious endowment, the moment a beneficiary dies, his share of the endowment goes to those other beneficiaries who survive. And the type of people chosen to enjoy an endowment (hubus) are those who are needy of the benefits accruing from it. Besides, those who already dwell in a house endowed shall not quit in order to make room for others, except where a stipulation in the terms of the endowment allowed for that. In such a circumstance the stipulation is enforced. A house endowed is never sold away even if it has degenerated into ruins. But an endowed horse affected by rabies is sold away, so that another horse can be bought with the proceeds; or at least the proceeds are used to supplement an amount with which to buy a new horse. Muslims jurists disagree as to whether an endowment which is in ruin can be exchanged with another building in good condition.
In Islamic law, pawning is lawful. But it is considered incomplete until the article pledged is taken over. Besides, a witness is of no use in respect of it so long as the witness failed to see the transfer of the article pledged. Responsibility for damage or loss of the article pledged shall be borne by the man receiving the pledge. But the receiver of the pledge only makes good what is lost while in his possession. He does not make good what is lost while in possession of others. The fruit of the date palms under pledge is the property of the pledger, so are the proceeds of houses.
A child born to a slave woman while she constitutes a pledge, is also a pledge. The property of a slave cannot be a pledge except where such a thing is stipulated. And in respect of pledges, what is lost while in the custody of a person trusted is borne by the person who made the pledge.
Articles borrowed are to be taken back to their true owners. A borrower shall be under an obligation to make good what got lost in his possession of consumable articles, but not of things he cannot consume such as a slave or an animal. Of the latter he is only liable to make good what is lost when he exceeded all reasonable limits.
If a keeper of a depository claimed to have returned the article entrusted to him, he is to be believed. But if witnesses were called to see the articles entrusted to him, then he cannot be free from liability to make good any loss or damage, until he in his turn calls in witnesses to see him return his charge to its rightful owner. If a keeper claims that the articles put under his charge have perished, he is to be believed also, under any circumstances. But if a person borrowed an article and he then claimed to have lost it, he will not be believed if it is of the type that can be consumed. Also, if a man exceeds limits in respect of something placed in his charge, it shall be incumbent upon him to make good any loss or damage. If the trust consisted of gold or silver pieces, which he claimed to have returned to its owner in the actual bag in which the pieces were when entrusted to his care, and the whole or part of it became missing, in such circumstances there are conflicting views as to whether it shall be incumbent upon him to make good any loss or damage.
It is reprehensible for a man to use as capital a property entrusted to him. But if he should do that, any profit acquired therefrom shall be lawful for him to keep. That shall be so if the property is cash; but if it is merchandise and he sells it, its owner shall have the option to receive the price charged or the value of the merchandise on the day the lapse was committed.
Whoever finds an article or thing let him announce it for one complete year at a place such an announcement is expected. If the year lapses and nobody comes forward to claim it, the finder can then endow it or give it away in alms if he likes. Nevertheless the finder shall be under the obligation to make good any loss or damage if the owner should subsequently turn up. Similarly, if the finder should use the article found, he must pay for that. But if the article found should be missing or destroyed before or after a year, without being moved, the finder shall not be liable to pay for it. If the person who sustains the loss of a find should recognise its container he should then automatically take it.
A man must not take a stray camel from a desert and regard it as a find, but he can take hold of a goat or a sheep which he finds in a desert where there are no buildings.
He is even permitted to eat of its flesh.
Moreover if a man should squander the proceeds from some merchandise, he must pay its value. But in respect of things that can be weighed or measured, he must give a quantity equal to what he wasted.
The misappropriator must pay for what he misappropriated. But if he should return the actual article he took by force, not diminished in quality or quantity, he has committed no offence. But if the article misappropriated underwent some changes while in the usurper's hands, then its rightful owner is given an option of either taking it back with its defect or accepting its value. If the defect in the article is the fault of the usurper, then the owner is given the option of taking it back along with that which had been taken away from it. However there are divergent views on that.
The yield, produce or revenue of property usurped is not lawful to the usurper of the property. Moreover he must make good what he consumed, and pay for the use he made of things such as implements etc. If he had intercourse with a woman he abducted, he receives the hadd punishment. And if the woman is a slave woman and she conceives, the child shall be a slave to the rightful master of the slave woman. Further a profit accruing from some amount taken away by force shall not be lawful to the person who took it by force until he has taken the capital back to its rightful owner. Giving away such profits as alms is what is recommended by the companions of Malik. However, in the chapter of procedure this discussion is continued.