Property with Unknown Ownership

Priority: c, Quality: b
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Majhūl al-mālik (Arabic: مجهول المالک; literally: Property with unknown ownership), is property whose owner is not known and it is impossible to give it to its owner or their heirs. According to the majority of jurists, to manipulate a property with unknown ownership, one needs to receive a permission from the Imam (a) or a Shari'a ruler.

The Notion

"Majhul al-malik" is a property owned by a person or a number of persons, but the identity or the place of its owner(s) is not known, and there is no way to give it to its owner(s) or his (their) heirs.[1]

Jurisprudential Ruling

According to the majority of jurists, to manipulate a property with unknown ownership, one needs to receive a permission from the Imam (a) or a jurist who is qualified for issuing fatwas.[2]

Instances

Some general instances of property with unknown ownership are mentioned in jurisprudential books, including:

  • Found objects: In jurisprudential terminology, a found child is referred to as "laqit" (لقیط), a lost animal is called "dalla"(ضالّه), and other found objects are referred to as "luqata" (لُقَطه). If the "luqata" is worth less than one dirham[3], then the finder can possess it. If it is worth more, then one must announce it as a found object for one year. After one year, there are three rulings in Islamic jurisprudence: (1) personal possession of the found object, (2) giving it as a charity on behalf of its real owner, (3) and trusting the Shari'a ruler (the Judicial Guardian) with it.[4] One reason for submitting the "luqata" to the Shari'a ruler is said to be the general principle that property with unknown ownership must be submitted to the Judicial Guardian.[5]
  • Property obtained via usury, seizure, theft, and gambling: Property gained in these ways must be returned to their owners or their heirs if the owners are known, and if their owners are not known and there is no hope to find the owner or their heirs, then they count as property with unknown ownership.[6]
  • Archeological remnants, treasures, and antiques: According to some jurists, archeological remnants (both movable and immovable), which are found in an unowned land or in a land which was purchased for purposes of the revival of a dead earth (Ihya' al-mawat) and the buyer knows that the found objects do not belong to the seller, count as property with unknown ownership.[7]
  • A debt to a missing creditor: If one is indebted to someone and the time for repayment has arrived, but he or she cannot find the creditor or their heirs, then in order to get rid of the debt, he or she should pay the money to the Shari'a ruler, and if there is no Shari'a ruler, then the debtor will remain in debt until they can repay it to the creditor or their surrogates (such as heirs), and if they are disappointed of finding the creditor or their heirs, then according to the majority of jurists, the property counts as being of unknown ownership and must be paid as charity on behalf of the creditor.[8]
  • Property without inheritors: If a person dies and there is no one to inherit them, then their property counts as being of unknown ownership, and according to explicit religious evidence, they will be given to the Imam or the Shari'a ruler in order to be spent for public good.[9]
  • Accidentally dead earth: An earth that used to be productive and but has lost its productivity is called "mawat bi l-arad" (accidentally dead). Lands with unknown ownership count as accidentally dead. According to the majority of jurists, they can be revived and possessed after an inquiry about their owners and being purchased or rented from the Shari'a ruler once there is no hope to find the owner. If one does not know whether or not the owners have abandoned the land, then precaution should be taken in seizing the land by the permission from the Shari'a ruler.[10]
  • Governmental ownership: According to some jurists, property owned by governments count as property with unknown ownership, and this leads to certain judicial consequences. For example, if state banks are not owners, then to receive money from them requires a permission from the Shari'a ruler. Or prizes gained via governmental lotteries count as property with unknown ownership, and thus one needs to receive the permission from the Shari'a ruler before he or she manipulates the prize.[11]

See Also

Notes

  1. ↑ Sayfī Mazandarānī, Dalīl Taḥrīr al-wasīla, al-Waqf, p. 434.
  2. ↑ See: Najafī, Jawāhir al-kalām, vol. 38, p. 336; Khomeinī, Tawḍīḥ al-masāʾil, p. 466.
  3. ↑ One Dirham equals to 12.6 "peas" or nukhuds of silvers, where each nukhud is equal to 192mg
  4. ↑ Ḥāʾirī, Luqata wa majhūl al-mālik (3), p. 42.
  5. ↑ Ḥāʾirī, Luqata wa majhūl al-mālik (3), p. 52.
  6. ↑ Ḥillī, Tadhkirat al-fuqahāʾ, vol. 10, p. 209, 210; Sayfī Mazandarānī, Dalīl Taḥrīr al-wasīla; Fiqh al-ribā, p. 133.
  7. ↑ Shāhrūdī, Farhang-i fiqh, vol. 1, p. 106.
  8. ↑ Shāhrūdī, Farhang-i fiqh, vol. 3, p. 681; Najafī, Jawāhir al-kalām, vol. 25, p. 44.
  9. ↑ Muḥaqqiq Dāmād, Waṣīyyat: taḥlīl-i fiqhī wa ḥuqūqī, p. 123.
  10. ↑ Muḥaqqiq Dāmād, Qawāʿid-i fiqh, vol. 1, p. 243.
  11. ↑ Najafī, Buḥūth fiqhīyya muʿāṣira, p. 86-99.

References

  • Ḥāʾirī, Sayyid Kāẓim. Luqata wa majhūl al-mālik (3). In Faṣlnāma-yi fiqh-i Ahl-i Bayt 58, 59 (1388 Sh).
  • Ḥillī, al-Ḥasan b. Yūsuf al-. Tadhkirat al-fuqahāʾ. Qom: Muʾassisat Āl al-Bayt, 1414 AH.
  • Khomeinī, Sayyid Rūḥ Allāh. Taḥrīr al-wasīla. Qom: Dār al-ʿIlm, [n.d].
  • Khomeinī, Sayyid Rūḥ Allāh. Tawḍīḥ al-masāʾil (muḥashā). Tehran: Muʾassisa-yi Tanẓīm wa Nashr-i Āthār-i Imām Khomeini, 1381 Sh.
  • Khoeī, Sayyid Abū l-Qāsim al-. Mawsūʿat al-Imām al-Khūʾī. Qom: Muʾassisat al-Imām al-Khūʾī, [n.d].
  • Muḥaqqiq Dāmād, Musṭafā. Qawāʿid-i fiqh. Twelfth edition. Tehran: Markaz-i Nashr-i ʿUlūm-i Islāmī, 1406 AH.
  • Muḥaqqiq Dāmād, Musṭafā. Waṣīyyat: taḥlīl-i fiqhī wa ḥuqūqī. Tehran: Markaz-i Nashr-i ʿUlūm-i Islāmī, 1420 AH.
  • Najafī, Bashīr Ḥusayn. Buḥūth fiqhīyya muʿāṣira. Najaf: Daftar-i Āyatollāh Najafī, 1427 AH.
  • Najafī, Muḥammad al-Ḥasan al-. Jawāhir al-kalām fī sharḥ sharāʾiʿ al-Islām. Beirut: Dār Iḥyāʾ al-Turāth al-ʿArabī, 1404 AH.
  • Sayfī Mazandarānī, ʿAlī Akbar. Dalīl Taḥrīr al-wasīla - al-Waqf. Tehran: Muʾassisa-yi Tanẓīm wa Nashr-i Āthār-i Imām Khomeini, 1430 AH.
  • Sayfī Mazandarānī, ʿAlī Akbar. Dalīl Taḥrīr al-wasīla - Fiqh al-ribā. Tehran: Muʾassisa-yi Tanẓīm wa Nashr-i Āthār-i Imām Khomeini, 1430 AH.
  • Shāhrūdī, Sayyid Maḥmūd. Farhang-i fiqh muṭābiq bā madhhab-i Ahl al-Bayt (a). Qom: Muʾassisat Dāʾirat al-Maʿārif al-Fiqh al-Islāmī, 1426 AH.
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