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Ḥiyāzat (Arabic: حیازَت) or Ḥiyāzat-i mubāhāt is acquisition of movable properties (property that can be moved from one place to another) which does not have a specific owner and all people share the right to use it, such as in fishing, taking water from public rivers, using pastures, hunting, firewood and fodder of unowned lands.
According to jurists and the rule of hiyazat, whoever acquires a property permissible to acquire, becomes its owner. For the legitimacy of this rule, the Qur'an, hadiths, and the common sense have been cited. According to some jurists, the person who acquires such a property must be mature, wise and having rational capability in order to be considered the owner of the acquired property, and the acquired property must be movable property, because acquisition of immovable unowned property is not permissible.
There is a difference of opinion among the jurists regarding the validity of the lease, partnership and agency in hiyazat. The book Qa'ida-yi hiyazat ba ruykard-i iqtisadi authored by Hasan Nazari has studied the rule of "Man haz-a malika" (Arabic: مَن حازَ مَلِکَ).
Hiyazat means acquisition of movable properties. Movable objects permissible to acquire are natural resources that do not have a specific owner and all people share the right to use them, and there is no religious problem to use or own them in a conventional way; such as fish, water from public rivers, pastures, land and sea hunts, firewood and fodder from unowned lands. In jurisprudential texts, hiyazat is not discussed as an independent issue, but it has been discussed in discussions of some topics such as lease, partnership and agency.
Acquisition of objects permissible to acquire is a cause of ownership. For example, a person who catches a fish from a river or sea becomes the owner of that fish. However, there is a difference of opinion among jurists on how to own the property. Some of them are of the opinion that the acquisition of the property requires the person's intention of possession, and others believe that acquisition does not require intention and the acquisition itself is sufficient for ownership.
The acquisition [with regards to using] pasture, firewood, non-domestic animals, water sources, etc. is made according to the view of common people. For example, hiyazat of a pasture is done by using its fodder for animals, and hiyazat of wild animals is done by hunting them.
Conditions of Hiyazat
A person who acquires something in order to own it, must be wise, mature and having rational capability. Of course, some jurists believe that acquisition does not require intention, because it is not a contract or an agreement; therefore, even children become the owners of the properties they acquire.
An acquired property must be movable and permissible to acquire. Acquisition of immovable properties is not allowed.
Hiyazat by agency
Some Shia jurists, such as al-Shaykh al-Tusi and Ibn Idris al-Hilli, do not consider hiyazat valid through agency of another. On the other hand, Ayatollah al-Khoei, one of the contemporary Shia jurists, considered hiyazat valid through agency of another and believed that in such acquisition, the client becomes the owner of the acquired property.
Hiring in Hiyazat
There is a difference of opinion among jurists regarding the permissibility of hiring in hiyazat. Some like al-Shaykh al-Tusi and al-Muhaqqiq al-Hilli have considered it permissible. Allama al-Hilli did not consider hiring in hiyazat as permissible because it is not clear whether the acquired property belongs to the hirer or the hired.
Some other jurists have said that if the mere act of acquisition results in ownership, then the person who has been hired for acquiring a permissible property becomes the owner of the property. Therefore, hiring in acquisition is not valid; however, if ownership does not take place by means of hiyazat and requires the intention of possession, then hiring is valid.
Partnership in Hiyazat
Hiyazat is also done in partnership. Partnership in hiyazat can be made such as by partnership in taking water with a container or uprooting a tree or catching fish with a fishing net and the like. There is a difference of opinion on whether the share of each partner in the partnership – in case the share is not determined – is equal or according to the amount of effort and role of each of them.
The Rule of Hiyazat
There is a rule in jurisprudence called "Man haz-a malik-a" according to which whoever acquires a permissible object becomes its owner. According to Nasir Makarim Shirazi, there is no specific text or hadith with the title "Man haz-a malik-a"; rather, this title is obtained from various traditions. Mustafa Muhaqqiq Damad considers this phrase to be only an expression of a ruling that jurists have deduced from the traditions.
Arguments and references of the rule of hiyazat
According to jurists, the arguments of the rule of hiyazat are:
Majority of the jurists for the rule of hiyazat refer to Quran 2:29, "It is He who created for you all that is in the earth,…" According to this verse, all the permissible properties on earth have been created for man to possess them, and whoever acquires something from them becomes its owner.
It is narrated from Imam al-Sadiq (a) that, "Whoever finds in a desert, a property or an animal, whose owner has abandoned it and revives it, he owns it, and such things are considered as permissible things." In another narration from Imam al-Sadiq (a) it is said, "Whoever takes hold of (dominates) something (permissible), becomes its owner." According to these and other narrations in which it is ruled to own objects such as caught birds, animals, and sea fish, the jurists have deduced that every permissible property is owned by its acquirer through acquisition.
View of common people
Ownership of permissible properties through hiyazat is a rational matter and it is also approved by religious law. According to Imam Khomeini, since the beginning of human civilization, the definite view of people has recognized that ownership can take place through revival and hiyazat, and none of the prophets, friends of God, and believers have denied it.
The book Qa'ida-yi hiyazat ba ruykard-i iqtisadi by Hassan Nazari is written about hiyazat. In this work, hayazat has been examined from jurisprudential, legal and economic aspects. Bustan-e Ketab publications published this book in 1385 SH/2006-7.
- The material for this article is mainly taken from حیازت in Farsi WikiShia.