If he takes something, he is obligated to return it if it remains, or provide its equivalent if it has perished, and no offsetting (taqass) occurs here, because the debt he is owed is not currently due to be collected, unlike the case preceding it. If he is withholding it from him without right, and he is able to secure it through a judge or a ruler, it is not permissible for him to take it otherwise, because he is able to fulfill his right through one who stands in his place, so it is similar to if he were able to fulfill it through his agent. If he is unable to do that—because he denies it and he has no proof for it, or because he does not respond to a summons for judgment and he cannot be forced to do so, or similar to this—then the famous position in the school is that he is not entitled to take the amount of his right. This is one of two narrations from Malik. Ibn Aqil said: Our modern scholars have established a view in the school for the permissibility of taking it, based on the hadith of Hind, when the Prophet (peace be upon him) said to her: 'Take what suffices you and your child according to what is customary.' Abu al-Khattab said: The permissibility of taking it can be derived for us; so if the item he is able to obtain is of the same genus as his right, he takes the amount of it, and if it is of a different genus, he exercises caution and performs ijtihad in estimating its value. This is taken from the hadith of Hind and from the statement of Ahmad regarding a pawned item: he may ride it and milk it to the extent of what he spends on it, the woman takes her maintenance, and the seller of goods takes them from the property of the bankrupt without his consent. Al-Shafi'i said: If he is unable to secure his right through proof, he is entitled to take the amount of his right from its own genus or a different genus. If he has proof and is able to secure it, there are two views regarding it. The famous position from the school of Malik is that if the other person does not have a debt owed to him by others, he is entitled to take the amount of his right, but if he has a debt upon him, it is not permissible, because they would share pro-rata in his property if he becomes bankrupt. He said:
(6) Omitted from: The original. (7) Omitted from: The original, A, B. (8) Omitted from: A, M. (9) In M: "amin" (taken from). (10) In A: "bi-hadith" (with the hadith). (11) In M: "wa-qad qala" (and he said). (12) Its takhrij (verification/source tracing) has previously been provided in: 11/348. (13) Omitted from: B. (14) In M: "rida" (consent). (15) In M: "bi-'aynihi" (by the item itself). (16) In A: "yatahasaman" (they dispute the shares).
