H E D A T A .
B O O K XXXVII.
Of G H AX B, or USURPATION.
Definition of HAZB, in its literal fenfe, means the forcibly taking a thing
the term. \ j T from another. In the language of the l a w it fignifies the taking
o f the property of another, which is valuable and facred, without the
confent o f the proprietor, in fuch a manner as to deftroy the proprie-
Afisbywhich tor’s poffeffion of i t ;— whence it is that ufurpation is eftablifhed by
» M l exading fervice from the have of another, or by putting a burden
upon the quadruped of another; but not by fitting upon the carpet o f
another; becaufe by the ufe of the Have of another, and by loading
the quadruped of another, the poffeffion of the proprietor is deftroyed;
whereas by fitting upon the carpet of another the poffeffion of the proprietor
prietor is not deftroyed.— It is to be obferved that if any perfon know*
ingly and wilfully ufurp the property of another, he is held in law to
be an offender, and becomes refponfible for a compenfation. If, on
the contrary, he ffiould not have made the ufurpation knowingly and
wilfully, (as where a perfon deftroys property on the fuppofition of
its belonging to himfelf, and it afterwards proves the right of another,)
he is in that cafe alfo liable for a compenfation, becaufe a compenfation
is the right of man; but he is not an offender, as his erroneous
offence is cancelled.
I f a perfon ufurp any thing of the clafs of fimilars, fuch as articles
eftimable by weight, or by meafurement of capacity, and of which
the particulars are nearly equal, and it be afterwards deftroyed in his
poffeffion, he is' in that cafe refponfible to the proprietor for a fimilar;
becaufe G o d has fo ordained in the K o r a n ; and alfo, becaufe the
giving of a fimilar in return is the jufteft method, fince a regard is
thereby (hewn both to the genus and the fubftance, and confequently
the injury to the proprietor is thereby removed in the moft eligible
manner. If, however, the ufurper be not able to give a fimilar, becaufe
of no fimilar being to be found, he in that cafe becomes refponfible
for the value which the article bears at the time of the fuit or
contention. This is according to Haneefa. Aboo Toofaf maintains
that he becomes refponfible for the value the thing bore upon the day
of ufurpation. Mohammed, on the other hand, has faid that he becomes
refponfible for the value it bore upon the day when the fimilar
was not to be found or procured. The reafoning of Aboo Toofaf is,
that whenever a fimilar became unattainable, the thing then became
the fame as if it was not o f the clafs of fimilars. Hence it is neceflary
to have regard to the value on the day of ufurpation; becaufe ufurpation
being the caufe which induces refponfibility, it follows that the
value on the day of the eftablifhment of the caufe ought to be regarded.
T h e reafoning of Mohammed is, that the ufurper is refponfible
for a fm lla r ; and that, as this refponfibility is afterwards referred
X x x 2 to
A wilful
ufurper is aa
offender.
The ufurper
o f an article
o f the clafs o f
fimilars is refponfible
for
a fimilar, i f
it be deftroyed
in his poIFef-
fion.