and take the indemnity for its decrease. Abu Hanifa said: He is given the choice between keeping it—with nothing for him—or surrendering it to the usurper and taking its value from him; because if he were to guarantee the decrease, he would receive the equivalent of its measure plus an increase, and this is not permissible, just as if he had sold a high-quality qafiz for a low-quality qafiz and a dirham. Our view is that the substance of his property remains, and only a decrease has occurred within it, so that which decreased is mandatory [to be paid], just as if it were (39) a slave who became ill. Some of the followers of Ash-Shafi'i have agreed with this regarding mold. He said: (40) He guarantees what decreased, in one opinion, and does not guarantee what was generated from it, because it is not his doing. This distinction is not sound, because dampness (41) may also be from other than his doing, and mold may be for a reason caused by him. Furthermore, that which is found in the hand of the usurper is guaranteed by him, due to its presence in his hand, so there is no difference. Abu Hanifa's statement is not sound because this food is the substance of his property and is not a substitute for it. Abu al-Khattab's statement is acceptable.

863 - Issue: He said: (If he cultivated it and its owner caught up with him while the crop is standing, the crop belongs to the owner of the land, and he is liable for the expenses. If it was claimed after the usurper took the crop, he is liable for the rent of the land.)

His saying: "Caught up with him" means he took it back from the usurper or was able to take it from him. This is the meaning of his saying: "It was claimed," meaning the one entitled to it took it. Whenever this is after the usurper has harvested the crop, it belongs to the usurper. We know of no disagreement regarding this; this is because it is the growth of his property, and he is liable for the rent up to the time of surrender and the guarantee for the decrease. If he had not cultivated it and it decreased due to neglecting cultivation, like the lands of Basra, or it decreased due to other than (1) that, he also guarantees its decrease, based on what we presented in the issue before this one. As for if its owner took it while the crop is standing in it, he does not have the right to force the usurper to uproot it, and the owner is given the choice between letting the crop remain in the land until harvest and taking the rent of the land and the indemnity for its decrease from the usurper, or paying him his expenses and the crop being his. Ash-Ubayd stated this. Most jurists said: He has the right to force the usurper to uproot it, and the ruling regarding it is the same as for planting trees, based on his (peace and blessings be upon him) saying: "There is no right for an unjust root." And because he cultivated in another's land unjustly, it is like planting trees. Our view is what Rafi' ibn Khadij narrated, saying: The Messenger of Allah (peace and blessings be upon him) said: "Whoever cultivates in the land of a people without their permission, he has no share in the crop, and he is liable for its expenses." Narrated by Abu Dawud and At-Tirmidhi, who said: It is a Hasan (sound) Hadith. It contains evidence that the usurper is not forced to uproot it, because it is property belonging to the one from whom it was usurped. It was narrated that the Prophet (peace and blessings be upon him) saw a crop on the land of Zuhayr and admired it, so he said: "How excellent is the crop of Zuhayr!" He replied: It is not for Zuhayr, but for such-and-such person. He said: "Take your crop and return his expenses to him." Rafi' said: So we took our crop and returned his expenses to him. And because it is possible to return the usurped property to its owner without destroying the property of the usurper within a short time, so it is not permissible to destroy it, just as if he usurped a ship and loaded his property onto it and took it into the sea, or usurped a plank and patched a ship with it; he is not forced to return the usurped item in the deep sea, and it is waited for until it reaches port, to protect the property from destruction. It is the same here. And because it is a crop that occurred in the property of another, so he is not forced to uproot it in a way that harms it, just as if the land were borrowed or subject to pre-emption (shuf'a). It differs from trees and date palms because their duration is long, and it is not known when they will be cleared from the land, so waiting for them leads to the total abandonment of returning the original property. Their Hadith refers to planting, and our Hadith refers to cultivation, so the two Hadiths are reconciled, and each one is applied in its appropriate place. That is better than invalidating one of them. When...