The Ghasb (Usurpation) according to Islamic Shari'ah
By: Allamah Syed Muhammad Husain Tabataba'i
Taking the property of another person and owning it without any legitimate reason of possession and forcibly occupying the property of another person in order to benefit from its profits without the intention of legally claiming it as one's own property is called ghasb (usurpation) according to Islamic Shari'ah.
Thus, the ghasb means exercising control over the property of others without having any legitimate means of control such as bay', rent, or permission.
It becomes quite clear that the ghasb is an indecent act which violates the very principle of ownership. .lust as the principle of ownership plays an effective role in t he establishment and survival of the society, the ghasb ruins and brings the society to a standstill.
Possession of a property and ownership will become invalid if the influential people of a society decide to gain control over the produce and output of the labor of the weak and the subordinates. Thus the idea of the transgression of the influential people over the personal rights of the helpless people would become predominant in the society. Consequently, in this situation, the subordinates and the weak will embark on any kind of submission, dishonor, and disrespect in order to benefit from the output of their efforts and endeavors. Thus the human society will be converted into a market in which the slaves are bought and sold and the laws and policies of the society will become entirely invalid and will be replaced by coercion and oppression.
This is why Islam has formulated strict policies for the usurper and considers usurpation a mortal sin.
According to the explicit wording of the Holy Qur'an and ahadith, any kind of sins other than shirk may be forgiven by Allah and any kind of sins including shirk may be forgiven after tawbah (repentance), but whoever has a record of usurpation and infringement upon the rights of the people, will never have any hope for salvation from being called to account by Allah and from the remuneration of his deed without being forgiven by the persons who possessed these properties and rights.
Some of The Precepts Concerning Ghasb
(i) It is wajib for the usurper to immediately give back the usurped property to its original owner. If the owner is not alive, the usurper must deliver the usurped property to his heirs, even if doing so may be a heavy loss for the usurper. For instance, if one forcibly seizes the stones or pieces of iron belonging to someone else and uses them in the foundation of a building worth hundreds of thousand times more than the stones and the iron, he should excavate the foundation and pull out the usurped stones and iron to give them back to the original owner, unless the owner agrees to accept the price of the commodity. As another example, if one usurps ten manns (each mann is of three kilograms) of wheat and mixes it with ten kharvars (each kharvar consists of one hundred manns) of barley, he should pick out all the wheat from the barley and return it to its original owner, unless he accepts to take the price of wheat.
(ii) If any defect develops in the usurped property, the usurper must not only return it to its owner exactly as it was on his usurpation, but he must also indemnify for its losses.
(iii) If the usurped property is lost, the usurper must pay its price to the rightful owner.
(iv) If the usurper squanders a part of the profits of the usurped property without using it himself, he will be responsible for the said profit. For instance, if a person who usurps the rental car of another person and puts it out of commission for a few days, he would be responsible for the loss incurred.
If the usurper gains profit from the usurped property, for example, if he nourishes a usurped sheep with good fodder, so that it becomes fat, he will have no rightful claims over the profit rendered by the sale of the sheep. If the benefits accruing from the usurped property are separable, for instance, cultivating a usurped land, one should give the usurped property along with its rent back to the original owner of the land, but the crop belongs to the usurper.
The Shuf'ah (Preemption)
If two persons own a house or another landed property as a musha' (joint ownership) and one of the partners decides to sell his share to a third party, the other partner has the right to buy his partner's share by the same contract agreed upon and exactly at the same price set for the third party. This right is called the right of shuf'ah (preemption).
It is quite clear that the right of shuf'ah has been devised in Islam to adjust and to stabilize partnerships and to eliminate losses and other mischief resulting from partnership of properties, for in many cases, the possession of the property by the new partner inflicts losses on the partner having the right of shuf'ah or serves as the source of a series of conflicts and disagreements due to differences of opinion or it may be that freedom of ownership may have benefits for the one who has the right of shuf'ah without causing any loss for the partner who wants to sell his share. The right of shuf'ah holds good for lands, houses, gardens, and other immovable properties, but it does not apply to movable properties.