Subject : In Principle, Rights should be Taken through Court
Fatwa Number : 3004
Date : 27-10-2014
Classified : Jurisprudence
Fatwa Type : Search Fatawaa

Question :

What is the ruling of Sharia on taking one`s right through deception?

The Answer :

All perfect praise be to Allah the Lord of the Worlds. May His peace and blessings be upon our Prophet Mohammad and upon all his family and companions.

In principle, rights should be realized with the consent of the person liable for them. If the latter refuses, denies or procrastinates in giving rights to whom they belong then they, in principle, should go to court to settle that dispute. However, rights can`t be taken based on  mere claim and without proof since On the authority of Ibn Abbas (may Allah be pleased with them), that the Messenger of Allah (peace and blessings of Allah be upon him) said: "Were people to be given everything that they claimed, men would [unjustly] claim the wealth and lives of [other] people. But, the onus of proof is upon the claimant, and the taking of an oath is upon him who denies." {Related by Bukhari}. This is why courts were established, so it isn`t permissible for claimants to recover rights on their own since this could lead to greater evils, sedition or harm where the right holder could be accused of treason, theft, and vice.

If it wasn`t possible to claim one`s right through court, jurists have restricted "winning one`s right" with certain controls and conditions; the most important of which are:

First: The right isn`t a penalty for if it is then this is of great magnitude since it is applied to a person and whatever results from it is irreparable. Therefore, one should act cautiously in establishing this penalty and executing it.

Second: Recovering this right through deception shouldn`t lead to sedition for the claimant or the other person.

Third: Recovering the right through deception shouldn`t lead to inflicting harm on the claimant, such as accusing him of theft.

Fourth: The right should be recovered by the owner himself since it isn`t permissible to deputize someone else to that end.

Fifth: Not to take other than the same kind of that right if it is there and could be taken. If this wasn`t possible, then it is permissible to recover a right which isn`t of the same kind.

Six: Not to take more than what is his, whether of the same or a different kind, if necessary.

Seven: To return any excess amount.

Eight: In case another kind of right was taken, he should sell it and take what is his and give back the remainder. If he couldn`t divide it then he should sell all of it and give back the rest to the person from whom it was taken, even in the form of a gift. In addition, it isn`t permissible for the claimant to sell it to himself.

Nine: If the claimant took another kind of right and it increased, then he should give back that extra amount.

Ten: If the claimant managed to recover his right through deception and the other person gave it back voluntarily, then the claimant should return the value of what he had taken and for the highest price estimated on the day he took it, just like a usurper.

Eleven: It isn`t permissible to recover one`s right from another claimant.

Twelve: It isn`t permissible to claim one`s right from a boy or an insane person.

Thirteen: It isn`t permissible to recover Allah`s right, such as Zakah (Obligatory charity) from someone who didn`t pay it.

Fourteen: It isn`t permissible to recover the right from other than the person who took it. Thus, it isn`t permissible to recover it a bequeathed for or  an endowed for person.

Fifteen: It isn`t permissible to recover one`s right from the interdicted or the dead, except according to their share along with the other persons liable for that right.

Sixteen: It isn`t permissible to recover one`s right from other than the person liable for it. Thus, it isn`t permissible to recover it from the latter`s son, father, and brother since no soul shall bear the burden of another.

Seventeen: Not to resort to intimidation to recover one`s right.

Eighteen: The person liable for the right isn`t insolvent. 

It is worth reminding that the right should be inalienable, known, and not perceived or an illusion. This is because some people decide that they have a right to claim, although it isn`t true, such as an employee who convinces himself that he deserves more than the agreed on amount or a buyer who thinks that a seller had sold him a commodity for more than the actual price or someone who thinks that a certain person had stole something from him without having the needed proof. In principle, people are innocent and it isn`t permissible for a Muslim to justify to himself that he deserves something while he isn`t actually entitled to it. Having doubts or a sense of injustice doesn`t justify eating up people`s property unjustly. So, whoever leaves doubtful matters to protect his religion and his honor, then he will be safe.

Obviously, these conditions indicate that the jurists have placed heavy restrictions on recovering one`s right through deception. Thus, a Muslim should be keen on avoiding doubtful matters and resort to lawful and legal means to recover his right.

This is a general view of the jurists opinions regarding this matter. For more details, kindly check the book [Moghni al-Mohtaj] as regards the statement (If he is entitled to an item, then he may take it in case he didn`t fear sedition) mentioned in the book [Al-Menhaajj]. And Allah The Almighty Knows Best. 



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