The Book of Selling and

Commercial Transactions

Lost and Found Property

& Foundlings

اللُّقَطَةِ

Glossary

Lost and Found Property & Foundlings

There are three types:
First: It is permissible to take something of insignificant value ⁹⁴⁴ and benefit from it, without announcing it [so that the owner can reclaim it]. The proof for this is the statement of Jâbir, “The Prophet (SA) permitted us to pick up sticks, whips, ropes, and similar objects and to benefit from [use] them.” ⁹⁴⁵

:وَهِيَ عَلَى ثَلاَثَةِ أَضْرُبٍ
أحدها: أَحَدُهَا: مَا تَقِلُّ قِيْمَتُهُ، فَيَجُوْزُ أَخْذُهُ وَالاِنْتِفَاعُ بِهِ مِنْ غَيْرِ تَعْرِيْفٍ؛ لِقَوْلِ جَابِرٍ : "رَخَّصَ لَنَا رَسُولُ اللَّهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ فِي الْعَصَا وَالسَّوْطِ وَالْحَبْلِ وَأَشْبَاهِهِ يَلْتَقِطُهُ الرَّجُلُ يَنْتَفِعُ بِه"

Second: An animal, such as a camel or a horse, capable of protecting itself from small predators. It is forbidden to take such animals. ⁹⁴⁶ This is because

الثَّانِيْ: الْحَيَوَانُ الَّذِيْ يَمْتَنِعُ بِنَفْسِهِ مِنْ صِغَارِ السِّبَاعِ، كَالإِبِلِ وَالْخَيْلِ،

944. The determination that something is of insignificant value is based on the customs of the people. The scholars said that it is what an average person is not expected to search for after losing it.

945. (D). Most scholars of Hadith classed it as weak, but its meaning is generally accepted. Anas reported that the Messenger of Allah (SA) came across a date in the road, and he said:

“Had I not feared it may be part of [something given in] charity, I would have eaten it.”

لَوْلَا أَنِّي أَخَافُ أَنْ تَكُونَ مِنَ الصَّدَقَةِ لَأَكَلْتُ .

946. This is the position of (A) + (+S) in all cases. (-M): If the animal is found in a village, the finder should take it, but if it is found in the desert it should be left. This is because it is unlikely that a thief will find it in the desert before the owner reaches it. (-H): The finder should take it in all cases and announce it. They said that the hadith about a stray camel pertains to the case where one knows that the animal’s owner is nearby and will surely find it. ‘Uthmân ibn ‘Affân (RA) advised the same because people had become less trustworthy, so taking the stray camel and making an announcement regarding it would be in the best interest of its owners.

the Prophet (SA) was once asked about stray camels and he said, “It (a camel) is none of your concern. It has its water [reservoir] and its feet, and it will reach water and drink it and eat off the trees until its owner returns to it.” ⁹⁴⁷ Whoever takes such an animal does not own it and is held liable for it; ⁹⁴⁸ the person would only be cleared [of liability] after surrendering it to the imam’s deputy [meaning the proper governmental authority]. ⁹⁴⁹

وَنَحْوِهَا، فَلاَ يَجُوْزُ أَخْذُهَا؛ لأَنَّ النَّبِيَّ سُئِلَ عَنْ ضَالَّةِ الإِبِلِ، فَقَالَ: " مَا لَكَ وَلَهَا؟ دَعْها معَهَا حِذَاؤُهَا وَسِقَاؤُهَا تَرِدُ الْمَاءَ وَتَأْكُلُ الشَّجَرَ حتى يَأتِيَهَا رَبٌها." وَمَنْ أَخَذَ هَذَا لَمْ يَمْلِكْهُ، وَلَزِمَهُ ضَمَانُهُ، وَلَمْ يَبْرَأْ إِلاَّ بِدَفْعِهِ إِلَى نَائِبِ الإِمَامِ.

Third: Valuable items, significant sums of money, property, and animals that cannot protect themselves from small predators. It is permissible to take these things, but one must announce [having found

الثَّالِثُ: مَا تَكْثُرُ قِيْمَتُهُ مِنَ الأَثْمَانِ وَالْمَتَاعِ وَالْحَيَوَانِ الَّذِيْ لاَ يَمْتَنِعُ مِنْ صِغَارِ السِّبَاعِ، فَيَجُوْزُ أَخْذُهُ، وَيَجِبُ

The goal here is to keep the camel for its rightful owner. All the positions are after that goal. The way to reconcile those differences is to consider the position of (A) + (+S) the default for the hadith; however, one should use that of (-H) when there is a significant risk of theft or other dangers, according to the finder’s judgement, after consideration of all of the circumstances, including the place, as in the position of (-M). [See the appendix on The Flexibilities in Islamic Legal Theory for the discussion on talfeeq
(patching together positions).]

947. Agreed upon, from Zayd ibn Khâlid.

948. So if the animal dies or gets lost, the finder will be responsible for its current market value when its owner demands it.

949. Since the imam or caliph is at the top of the hierarchy of the Muslim state, the imam’s deputy, in the language of the fuqahâ’, usually means the authority in charge.
Note that the authorities have the right to take any lost item and keep it for the owners or dispose of it and keep the value for them. (A/SM) Anyone who takes a lost item that is permissible to take and surrenders it to the authorities will be clear of liability. (A/SM)
Note that lost items of mu‘âhids (non-Muslims who have a peace covenant with the Muslim state) are given the same rulings. The Prophet (SA) said:

“It is forbidden [to consume] predatory animals with canine teeth or domestic donkeys, and [it is forbidden to take] the lost item of a mu‘âhid, unless he or she has (willingly) given it up.” (D – from al-Miqdâm ibn Ma‘dikarib; Ibn Ḥajar: S)

لا يَحِلُّ ذُو نَابٍ مِنَ السِّبَاعِ وَلَا اَلْحِمَارُ اَلْأَهْلِيُّ وَلَا اَللُّقَطَةُ مِنْ مَالِ مُعَاهَدٍ إِلَّا أَنْ يَسْتَغْنِيَ عَنْهَا

something] for one year in public places such as the entrances of the markets and mosques. ⁹⁵⁰
Whenever anyone comes seeking it and correctly describes it, then it should be given to the seeker without [requiring the] presentation of [further] evidence. ⁹⁵¹ If no one asks for it, then it becomes the finder’s property. ⁹⁵²Before disposing of it, though, the finder has to note its features (such as its case, strap, and so on), so that when its seeker comes and describes it correctly, the finder returns it or its exact like, if it is lost or damaged.

تَعْرِيْفُهُ حَوْلاً، فِيْ مَجَامِعِ النَّاسِ، كَالأَسْوَاقِ وَأَبْوَابِ الْمَسَاجِدِ. فَمَتَى جَاءَ طَالِبُهُ، فَوَصَفَهُ، دُفِعَ إِلَيْهِ بِغَيْرِ بَيِّنَةٍ، وَإِنْ لَمْ يُعْرَفْ، فَهُوَ كَسَائِرِ مَالِهِ. وَلاَ يَتَصَرَّفَ فِيْهِ حَتَّى يَعْرِفَ وِعَاءَهُ، وَوِكَاءَهُ وَصِفَتَهُ، فَمَتَى جَاءَ طَالِبُهُ، فَوَصَفَهُ، دَفَعَهُ إِلَيْهِ أَوْ مِثْلَهُ إِنْ كَانَ قَدْ هَلَكَ.

If the lost object is an animal that needs to be fed, or is a perishable item that may go bad, then the finder

لا يَحِلُّ ذُو نَابٍ مِنَ السِّبَاعِ وَلَا اَلْحِمَارُ اَلْأَهْلِيُّ وَلَا اَللُّقَطَةُ مِنْ مَالِ مُعَاهَدٍ إِلَّا أَنْ يَسْتَغْنِيَ وَإِنْ كَانَ حَيَوَانًا يَحْتَاجُ إِلىَ مُؤنَةٍ، أَوْ شَيْئًا يَخْشَى تَلَفَهُ، فَلَهُ

950. Notice that he said at the entrances of the mosques, because it is makrooh to make announcements in the mosques themselves. (A/SM) The Prophet (SA) said:

If the lost object is an animal that needs to be fed, or is a perishable item that may go bad, then the finder

مَنْ سَمِعَ رَجُلًا يَنْشُدُ ضَالَّةً فِي الْمَسْجِدِ فَلْيَقُلْ: لَا رَدَّهَا اللَّهُ عَلَيْكَ ، فَإِنَّ الْمَسَاجِدَ لَمْ تُبْنَ لِهَذَا.

The hadith clearly addresses the case of seeking a lost item, but it does not address announcing an item that was found. Many of the scholars equate the two cases since they both entail raising the voice in the mosque for something other than worship. While the analogy may not be perfect (since in the first case, the person does it out of self-interest), the announcement by the finder still entails raising the voice and causing some distraction to other worshippers, so it is best to look for alternatives. Imam Mâlik was asked about this, and he mentioned:
“I do not like raising the voice with such announcements, and I was told that ‘Umar ibn al-Khaṭṭâb ordered that the announcement is to be made by the door of the mosque. If that person [the announcer] walked to people in the mosque and told them without raising his voice, then there would be no harm, in my view.” (Mawâhib al-Jaleel by Ḥaṭṭâb ar-Ru‘ayni)
It is also possible to post the announcement in the lobby of the mosque outside the prayer room. In our times, the lobbies and attached rooms are customarily not considered part of the mosque.

951. Since the seeker’s ability to describe the item is treated like evidence.

952. The finder can dispose of it after one year but will be liable for the value whenever the rightful owner shows up to claim the property, even if more than one year has passed.

may first consume it or sell it, and then announce it. ⁹⁵³ This is based on Zayd ibn Khâlid’s narration which states, “When Allah’s Messenger (SA) was asked about picking up lost gold or silver, he told them: Keep note of the string and the container, and then announce ⁹⁵⁴ (your finding of) it for one year. If its seeker comes by at any time, ⁹⁵⁵ give it to him or her. He asked him also about sheep, ⁹⁵⁶ and he indicated: Take it; ⁹⁵⁷ it is for you, or for your brother, or for the wolf.” ⁹⁵⁸

أَكْلُهُ قَبْلَ التَّعْرِيْفِ، أَوْ بَيْعُهُ، ثُمَّ يُعَرِّفُهُ؛ لِمَا رَوَى زَيْدُ بْنُ خَالِدٍ قَالَ: سُئِلَ رَسُوْلُ اللهِ عَنْ لُقَطَةِ الذَّهَبِ وَالْوَرِقِ، فَقَالَ: "اعْرِفْ وِكَاءَهَا وَعِفَاصَهَا ثُمَّ عَرِّفْهَا سَنَةً، فَإِنْ جَاءَ طَالِبُهَا يَوْمًا مِنَ الدَّهْرِ فَادفَعْها إليه وَسَأَلَهُ عَنِ الشَّاةِ، فَقَالَ: خُذْهَا فَإِنَّمَا هِيَ لَكَ أَوْ لِأَخِيكَ أَوْ لِلذِّئْبِ."

If the item is lost or damaged during the year of announcement, without transgression (ta‘addin) on the part of the one who picked it up, then the finder bears no liability for it. ⁹⁵⁹

أَكْلُهُ قَبْلَ التَّعْرِيْفِ، أَوْ بَيْعُهُ، ثُمَّ يُعَرِّفُهُ؛ لِمَا رَوَى زَيْدُ بْنُ خَالِدٍ قَالَ: سُئِلَ رَسُوْلُ اللهِ عَنْ لُقَطَةِ الذَّهَبِوَإِنْ هَلَكَتِ الُّلقَطَةُ فِيْ حَوْلِ التَّعْرِيْفِ مِنْ غَيْرِ تَعَدٍّ، فَلاَ ضَمَانَ فِيْهَا.

953. In all cases, lost items of significant value will be returned to their rightful owners whenever they come for them and describe them accurately, even after one year. If the finder has already sold them or consumed them, he or she will return their value. If the item is food that may rot, the finder should sell it or consume it, then give its value to the owner if the owner shows up.
If the item is an animal that requires feeding, the finder must feed it. If he intends to be reimbursed by the owner for those expenses, he would be entitled to that. The finder may also consume or sell the animal and return its value to the owner whenever the owner shows up.

954. The Prophet (SA) did not specify a method of announcement. This is part of the legislative miracle of Islam. Whenever a matter is subject to change, it is governed only by general guidelines. For example, announcing in our times could be done through the local authorities, who may have a database of all lost and found items.

955. This indicates that the rightful owner may claim his or her lost item even after the one year has passed.

956. Unlike camels, sheep cannot protect themselves.

957. This means the finder will take it and announce it.

958. This means the finder will take it and announce it.

959. He is acting here like a trustee. A trustee is only liable in the case of transgression or negligence.

Subsection on Foundlings ( Laqeeṭ )

فَصْلٌ فِي اللَّقِيْطِ

A laqeeṭ is an abandoned child or foundling. The legal ruling concerning the child is that he or she is free ⁹⁶⁰ and is a Muslim. Any money found with the child belongs to him or her.

هُوَ الطِّفْلُ الْمَنْبُوْذُ، وَهُوَ مَحْكُوْمٌ بِحُرَّيَتِهِ، وَإِسْلاَمِهِ، وَمَا وُجِدَ عِنْدَهُ مِنَ الْمَالِ، فَهُوَ لَهُ.

The guardianship goes to the child’s finder if the finder is a trustworthy Muslim.

وَوِلاَيَتُهُ لِمُلْتَقِطِهِ، إِذَا كَانَ مُسْلِمًا عَدْلاً.

The sustenance of the foundling is taken from the treasury of the Muslims if there was not sufficient money [left] with the child for sustenance.⁹⁶¹ On the

وَنَفَقَتُهُ مِنْ بَيْتِ الْمَالِ، إِنْ لَمْ يَكُنْ مَعَهُ مَا يُنْفَقُ عَلَيْهِ، وَمَا خَلَّفَهُ فَهُوَ فَيْءٌ.

960. Imam Ibn al-Mundhir indicates:

“The vast majority of the people of knowledge agreed on the freedom of the foundling. This was narrated to us from the Caliph ‘Umar ibn al-Khaṭṭâb and ‘Ali ibn Abi Ṭâlib [RAHUMA]. This position was also upheld by the Caliph ‘Umar ibn ‘Abdul-‘Azeez, and also by various scholars [ash-Sha‘bi, al-Ḥakam, Ḥammâd, Mâlik, ath-Thawri, ash-Shâfi‘i, Is-ḥâq], and the scholars of ra’i [‘opinion/logical thinking’; this term usually refers to Ḥanafi scholars], and those who followed them. An-Nakha‘i [d. 96 AH/ 715 CE; a teacher of Abu Ḥaneefah], however, mentioned: If the finder picked the child up for the sake of Allah [that is, as a good deed], the child is free. However, if the finder picked the child up to take as a slave, then the finder is entitled to do so. This is, however, a strange opinion which contradicts that of the caliphs and scholars. It is also invalid upon contemplation, for the default concerning the children of Adam is freedom, because Allah [Most High] created Adam and his progeny free. Slavery is an exceptional state, and if that exception is not established, then the foundling will be judged according to the default.” (al-Mughni)

961. This is based on the statement of Caliph ‘Umar ibn al-Khaṭṭâb (RA) to a man who had taken in a lost child:

“Go. He is free, you are entitled to the child’s walâ’, and we will spend on him or her.” (Ba; al-Albâni in Irwâ’ al-Ghaleel: S)

اذْهَب، فَهُوَ حُرٌ، ولك وَلاؤه، وعلينا نَفَقَتُه.

other hand, anything the foundling leaves behind [after the child’s death] is taken by the Muslim treasury. ⁹⁶²

Whoever claims paternity of the foundling will have the child attributed to him ⁹⁶³ unless the former is a

وَمَنِ ادَّعَى نَسَبَهُ، أُلْحِقَ بِهِ، إِلاَّ أَنَّهُ إِنْ كَانَ كَافِرًا، أُلْحِقَ بِهِ

(The walâ’ is the right of inheritance between two people if one of them emancipated the other.) The Muslim treasury is responsible for the sustenance of the foundling. The finder will never be responsible for his or her expenses. If the Muslim treasury is incapable of supporting the child, the responsibility then falls on the Muslim society to provide the support. This communal obligation (farḍ kifâyah) can be satisfied by anyone from the community, including the finder, who should not, in any case, allow harm to befall the child.
In our times, and wherever Muslims live as minorities, the community should have major organizations devoted to the mission of looking after children who are orphans or otherwise deprived of parental care. Such organizations should be maintained by endowments donated by the Muslims.

962. The text says that the child’s inheritance will be treated as fay’, which refers to wealth that reaches the Muslims from non-Muslims without fighting. Whenever the child dies, his or her inheritance (aside from his or her bequests) will go to the Muslim treasury.
The statement of ‘Umar above indicates that the inheritance of the deceased foundling goes to the finder, yet the majority did not act upon it (or the other hadith reported by at-Tirmidhi and Abu Dâwood indicating the same) because they deemed all the reports weak. They argued that the Prophet (SA) said:

“Al-walâ’ belongs only to the emancipator.” (Ag – from ‘Â’ishah)

إِنَّمَا الْوَلَاءُ لِمَنْ أَعْتَقَ

The foundling is judged to be free, and the finder is not the emancipator. If the foundling dies without heirs, the inheritance shall go to the Muslim treasury. The wisdom behind this ruling is that the state treasury funded the foundling’s needs during his or her lifetime, so it should take the foundling’s inheritance after death.

963. Istilḥâq (demand for attribution) is when a person claims the paternity (or maternity according to some) of a child without a known lineage. His claim is accepted if it is possible.

disbeliever, in which case the foundling will be attached to him in lineage without following his religion, and the child will not be handed over to him. ⁹⁶⁴

نَسَبًا، لاَ دِيْنًا، وَلَمْ يُسَلَّمْ إِلَيْهِ.

Though this is still controversial, the author of this commentary believes that DNA tests could help establish the veracity of such claims and could also help determine the lineage of foundlings, which would help the authorities identify their parents. This would help safeguard the rights of the child, enjoin the responsibilities upon the parents, and remove the burden of the child’s care from the shoulders of society – though the paternity itself would be established through the established Sharia proofs, such as being born to a married mother, the testimony of witnesses, or admission.

964. This is because the default for foundlings in a Muslim society is Islam and freedom. Keep in mind that this refers to when someone claims a child without proof. If the non-Muslims claiming parenthood have proof, the child will be handed over to them to raise as they please. (Zâd al-Mustaqni‘ by Moosâ al-Ḥajjâwi).

Lost and Found Property & Foundlings

( Page : no 85)

The Book of Selling and

Commercial Transactions

Lost and Found Property

& Foundlings

اللُّقَطَةِ

Introduction

The Book of Purification

The Book of Prayer

The Book of Funerals

The Book of Fasting

The Book of Hajj and 'Umrah

Book of Zakat

The Book of Selling and Commercial Transactions

The Book of Bequests

The Book of Inheritance

The Book of Marriage

The Book of Divorce

The Book of Sadaq

The Book of Dhihar

The Book of Lian

The Book of Foods

The Book of Oaths

Book of Fatal and Non-Fatal Assault

The Book of Indemnities

The Book of Hudood

The Book of Jihad

The Book of the Judiciary

The Book of Testimonies

Appendix

Glossary

Subsection on Foundlings ( Laqeeṭ )

فَصْلٌ فِي اللَّقِيْطِ

Lost and Found Property & Foundlings