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Rule of Possession

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Not to be confused with Qa'ida Daman al-Yad.

Qa'ida al-Yad (Arabic: قاعدة اليد, Rule of Possession) is a jurisprudential rule that, under certain conditions, proves an individual's ownership of property over which they have control. According to jurists, not every type of control over objects indicates ownership, and one must refer to common usage (ʿurf) to identify the instances of the Rule of Yad. Researchers believe that "Yad" (possession) is a rule accepted not only by Muslims but by all rational human beings. Traditions have been narrated from the Shi'a Imams confirming the ownership of the person in control; however, jurists consider the primary proof of this rule to be the conduct of the rational (sirat al-'uqala), viewing the traditions as endorsements of what was previously discovered by intellect.

Among the historical instances of applying the Rule of Yad is Imam Ali (a)’s citation of this rule against Abu Bakr b. Abi Quhafa. Imam Ali (a) argued that because Fadak was under the control of Fatima al-Zahra (a), it was her property, and in case of any counter-claim, the opposing party must provide clear evidence (bayyina) and bring witnesses. The laws of the Islamic Republic of Iran, in Articles 35 and 36 of the Civil Code, follow this rule, considering any possession as an owner to be evidence of ownership. This rule is distinct from Qa'ida Dhaman al-Yad (the Rule of Liability for Possession), which is famous as the "ʿAla al-Yad" rule.

Introduction and Indication of Ownership

The Rule of Yad means that a person who has control over an object is conventionally recognized as its owner.[1] It is said that this rule has historical roots in the physical holding of objects during early human eras,[2] but today its instances are broader, including physical relationships like clothes being worn, or contractual ones like a title deed.[3]

Jurists believe that the "control" mentioned in this rule depends on the common usage of society[4] and accordingly, types of control (such as over a house or land) differ.[5] The Rule of Yad is a rule pertaining to jurisprudence and Law.[6] Researchers state that it applies across all sections of transactions such as sale and lease.[7] The terminology used in traditions for this rule indicates that it covers both legal and factual doubts.[8]

It is noted that the Rule of Yad is different from Qa'ida Dhaman al-Yad, which is known as the rule of "ʿAla al-Yad".[9] While the Rule of Yad views possession as a sign of ownership, the Rule of Liability (Dhaman) refers to the possession of others' property which results in the person's responsibility for that property.[10] Furthermore, the Rule of Yad applies to lineages and persons in some cases, while the Rule of Liability is restricted to property.[11]

The Civil Code of Iran follows this rule in Articles 35 and 36, considering possession as an owner as evidence of ownership.[12]

Among the conditions for possession to indicate ownership are that it must be as an owner, legal, manifest, and continuous—meaning not as a representative or trustee, not through force or usurpation, and without interruption.[13]

Matters of Dispute

While the authority of the Rule of Yad is certain, it is disputed in several aspects:

  1. According to Baqir Irawani, there is disagreement over whether it is a practical principle (asl) or an indicative proof (amara).[14] Template:Note According to Nasir Makarem Shirazi, most scholars like Muhammad Husayn Na'ini and Aqa Diya' al-Din al-'Iraqi consider it an "amara".[15] Makarem Shirazi believes that some expressions of Shaykh Murtada al-Ansari suggest a tendency toward viewing it as a practical principle.[16]
  2. While jurists agree on its application to physical objects, its application to the "benefits" (usufruct) of an object is disputed. Mulla Ahmad Naraqi argued against its application to benefits.[17] In contrast, most contemporaries believe it represents ownership of both the substance and the benefits. For example, if someone rents a house and another non-resident claims to have rented it, if we accept Yad over benefits, only the non-resident claimant must provide evidence.[18]
  3. According to the Encyclopedia of Comparative Jurisprudence, Islamic schools differ on whether mere control is sufficient for ownership or if active "disposal" (tasarruf) is required. Many Imami and some Hanafi jurists consider mere possession sufficient. However, others require short-term or long-term disposal.[19]
  4. Some researchers tried to apply the rule to lineages (ansab), but this has not been accepted by most jurists, who restrict the rule to property and not matters involving honor or ownership of persons.[20]

Proofs of Authority

Jurists cite the following for the authority of the Rule of Yad:

  1. The Conduct of the Rational: The view of the rational is that when someone possesses something, they are recognized as its owner.[21]
  2. The Conduct of Muslims: The custom of Muslims has been to conduct transactions with the holder of an object and only use it with their permission.[22]
  3. Consensus: By the agreement of all jurists, a person possessing something is considered its owner.[23]
  4. Traditions: Narrations acknowledging the validity of the ownership of the one in control.[24] Makarem Shirazi lists 5 such traditions in al-Qawaʿid al-fiqhiyya,[25] such as the one where Imam al-Sadiq (a) confirms that one can testify to the ownership of a person who has an item in their hand, for if not, the system of transactions would collapse.[26] Another tradition states: "Whoever has control over something is its owner."[27]

According to Sayyid Mustafa Muhaqqiq Damad, the primary proof is the conduct of the rational, and the traditions are endorsements of that innate rational perception.[28]

Instances of Application

  • Resolving disputes between spouses over household items after Divorce: Since both have possession (yad), ownership cannot be granted to one based on the general rule unless specific items are under the private control of one (e.g., in a personal closet).[29]
  • Proving the ownership of Fadak for Fatima al-Zahra (a), which was under her possession during the life of the Prophet (s).[30] Jurists, citing a report in al-Iḥtijaj,[31] consider Abu Bakr's claim that she must bring witnesses for her ownership to be invalid because she was already the possessor (owner by Yad).[32]

Notes

  1. ↑ Muḥaqqiq Dāmād, Qawāʿid-i fiqh, 1406 AH, vol. 1, p. 27.
  2. ↑ Muḥaqqiq Dāmād, Qawāʿid-i fiqh, 1406 Sh, vol. 1, p. 26.
  3. ↑ Muḥaqqiq Dāmād, Qawāʿid-i fiqh, 1406 Sh, vol. 1, p. 28.
  4. ↑ Muḥaqqiq Dāmād, Qawāʿid-i fiqh, 1406 AH, vol. 1, p. 27.
  5. ↑ Bahrozī-zād, "Qalamraw-i qāʿidih-yi yad dar aʿrāḍ wa ansāb...", p. 230.
  6. ↑ Muḥaqqiq Dāmād, Qawāʿid-i fiqh, 1406 AH, vol. 1, p. 25.
  7. ↑ Raḥmānī, "Qāʿidih-yi yad", p. 154.
  8. ↑ Raḥmānī, "Qāʿidih-yi yad", p. 154.
  9. ↑ Muḥaqqiq Dāmād, Qawāʿid-i fiqh, 1406 Sh, vol. 1, pp. 25, 61.
  10. ↑ Irawānī, al-Qawāʿid al-fiqhiyya, 1426 AH, vol. 2, p. 136; Fāḍil Lankarānī, al-Qawāʿid al-fiqhiyya, 1416 AH, pp. 83-84.
  11. ↑ Ḥusaynī-khwāh, Qāʿidih-yi ḍamān-i yad, 1390 Sh, pp. 29-30.
  12. ↑ "Matn-i qānūn-i madanī-yi Jumhūrī-yi Islāmī-yi Īrān", Official website of the Research Center of the Islamic Consultative Assembly.
  13. ↑ Sulaymānī, "Muṭālaʿih-yi taṭbīqī-yi qāʿidih-yi yad...", pp. 95-96.
  14. ↑ Irawānī, Durūs tamhīdiyya fī l-qawāʿid al-fiqhiyya, 1411 AH, vol. 1, p. 194.
  15. ↑ Makārim Shīrāzī, al-Qawāʿid al-fiqhiyya, 1411 AH, vol. 1, p. 289; Nāʾīnī, Fawāʾid al-uṣūl, 1376 Sh, vol. 4, p. 603; ʿIrāqī, Nihāyat al-afkār, 1411 AH, vol. 4, p. 21.
  16. ↑ Makārim Shīrāzī, al-Qawāʿid al-fiqhiyya, 1411 AH, vol. 1, p. 289.
  17. ↑ Makārim Shīrāzī, al-Qawāʿid al-fiqhiyya, 1411 AH, vol. 1, p. 302.
  18. ↑ Ṭabāṭabāʾī Yazdī, al-ʿUrwat al-wuthqā, 1423 AH, vol. 6, p. 586; Khumaynī, Taḥrīr al-wasīla, 1390 AH, vol. 2, p. 430; Mūsawī Bujnūrdī, al-Qawāʿid al-fiqhiyya, 1401 AH, vol. 1, p. 126.
  19. ↑ Makārim Shīrāzī, Dāʾirat al-maʿārif-i fiqh-i muqāran, 1427 AH, vol. 1, p. 373.
  20. ↑ Bahrozī-zād, "Qalamraw-i qāʿidih-yi yad dar aʿrāḍ wa ansāb...", pp. 228-231.
  21. ↑ Muḥaqqiq Dāmād, Qawāʿid-i fiqh, 1406 Sh, vol. 1, p. 27.
  22. ↑ Muḥaqqiq Dāmād, Qawāʿid-i fiqh, 1406 Sh, vol. 1, p. 27.
  23. ↑ Muḥaqqiq Dāmād, Qawāʿid-i fiqh, 1406 Sh, vol. 1, p. 27.
  24. ↑ Bujnūrdī, Qawāʿid-i fiqhiyya, vol. 1, p. 382.
  25. ↑ Makārim Shīrāzī, al-Qawāʿid al-fiqhiyya, 1411 AH, vol. 1, pp. 285-289.
  26. ↑ Kulaynī, al-Kāfī, vol. 7, p. 387.
  27. ↑ Ḥurr al-ʿĀmilī, Wasāʾil al-Shīʿa, 1409 AH, vol. 26, p. 216.
  28. ↑ Muḥaqqiq Dāmād, Qawāʿid-i fiqh, 1406 Sh, vol. 1, p. 33.
  29. ↑ Sulaymānī, "Muṭālaʿih-yi taṭbīqī-yi qāʿidih-yi yad...", p. 101.
  30. ↑ Bahārī and ʿĀmilī, "Kār-āmadī-yi qāʿidih-yi yad dar ithbāt-i mālikiyyat-i Ḥaḍrat-i Zahrā (a)...", pp. 242-243.
  31. ↑ Ṭabarsī, al-Iḥtijāj, 1403 AH, vol. 1, p. 92.
  32. ↑ Shopāʾī, Khārij Lessons of Uṣūl, Madrisiy-i Fiqāhat.

References

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