وَضْع اليد

وَضْع اليد

Wad' al-yad (literally, placing the hand) means leaving or dropping, as in the phrase that one dropped someone's debt, and the hand in the sense of favour, power, holding and ownership: 'the matter is in so-and-so's hand' means it is in his control. ¹ For the jurists it is a holder's act of control over a thing, or the holder's disposal of it in the way an owner disposes. The jurists also use the phrase for the physical hand itself. ²

Hiyaza is taking hold and gathering, and wad' al-yad is the broader term; ghasb is taking an owner's property by force and open contest, and wad' al-yad is broader than ghasb. ²

First, the rules on holding a thing for ownership. The jurists agree in general that holding is evidence of ownership, with differences of detail. The Hanafis call holding and disposal among the strongest proofs of ownership, so testimony that the holder owns the thing is valid. ²³ The Malikis hold that a holding which lasts, is not contested and is used as an owner uses a thing proves ownership, while a short holding does not. Ibn Rushd gives different answers on whether a third-party holder must say where the thing came from, depending on how long the holding has lasted and whether the claimant's root of title is established. ³⁴

The way of holding varies with the thing. For land it is living in a house, building on it, digging a well, canal or channel, planting trees, sowing, making bricks on open ground; for a thick wood or a reed thicket, cutting and selling wood and using it; for pasture, cutting and selling grass or grazing animals on it. A key held by someone else does not make him the holder of a house; the one who lives in it holds it. ⁴⁵ For movables, holding is any sign that a person has the thing, such as using slaves, riding animals, milking livestock. ⁴⁵

Second, proof of holding. The Hanafis distinguish land from other things: a disputed holding of land must be proved by witnesses and is not established by the admission of both parties, nor by the judge's knowledge, because the holding of land is not visible and both parties might be feigning it. ⁵ Exceptions are claims of purchase, usurpation and theft, where proof of holding is not needed, because the claim of an act may be made against anyone who holds. ⁵ For movables, the one in whose hand the thing is found holds it, and holding may be shown by witnesses, sight or admission; if the defendant denies holding and the claimant shows by witnesses that the thing was in the defendant's hand for a year, the witnesses are heard and the defendant is treated as the holder. ⁵⁶

Third, holding another's property. Taking another's property without permission in aggression is usurpation, detailed under ghasb. Taking it by mistake, as when a person thought it was his own, makes him liable for compensation but not sinful, because error is lifted from account. The book cites a hadith on the lifting of error from this community and notes that al-Nawawi graded a hadith on the subject as hasan, as Ibn Hajar reports; the grade is attributed and recorded here as attributed only. ⁶

Fourth, disputes over holding. When two people contest land and each claims to hold it, each is asked for evidence; if both produce it, both are held to hold the land together, each the defendant for the part he holds and the claimant for the part he does not. If one shows he cannot prove his holding and the other proves it, the latter is treated as the holder. ⁶ Without evidence, the stronger holder is preferred, or they share if equal. ⁶⁷

Fifth, grades of holding. Without evidence the Hanafis give examples: the one wearing a garment has a better claim than the one holding its sleeve; the rider has a better claim than the one holding the bridle; the one seated in the saddle over the one behind him, in the apparent view; the one carrying the load on an animal over the one who hangs his jug on it; a wall belongs to the one whose beams rest on it, with the three-beam rule; and a wall joined by interlocking bricks or by a wooden piece set into another belongs to the one it is bonded with. ⁷⁸ The Malikis rank holding: first the clothes and belt a person wears, then the carpet he sits on, then the animal he rides, then the one he drives or leads, then the house he lives in. ⁸ The Shafi'is: when two contest an animal and one has a load on it, the load-holder is believed with his oath; when one holds the animal and the other holds its load, the holder of the animal has the better claim. ⁸⁹ The Hanbalis: when one rides an animal or has a load on it and the other holds its halter or drives it, the first has the better claim, on his oath, as his use is stronger. ⁸⁹

Sixth, holding a lost thing and a foundling. The Hanafis forbid the finder to take a lost thing for himself and not for its owner; the book cites a hadith in Sahih Muslim on the one who shelters a stray. ⁹ The Shafi'is: when one of two walking companions finds a lost thing and the other tells him to pick it up, the intention of the one who picks it up decides who owns it. ⁹ The Hanbalis: when two see a foundling and one takes it or puts his hand on it first, he has the better claim; the taking, not the seeing, is what counts; if one asks the other to hand it to him, the intention of the taker decides. ¹⁰

Seventh, a pilgrim in the state of ihram laying hold of game. Jurists agree it is forbidden to a pilgrim for hajj or umra to take hold of game by purchase, hire, loan or similar means, inside the sanctuary or outside it, as the Qur'an forbids it in sura al-Ma'ida (cited by sura only); it is also forbidden to take hold of game within the sanctuary even for a non-pilgrim. ¹⁰¹¹

Eighth, what does not come under holding. The rule is that a free person does not come under another's hold. ¹¹ Taking another's property without legal cause is a wrong that makes the taker liable, whether the taker is a ruler or one ruled. ¹¹

Second part, the physical hand. In prayer the jurists differ on placing the right hand on the left. ¹¹ They agree that placing the hand on the hip in prayer is disliked, for a hadith of Abu Hurayra against praying with the hip hold, and because the posture contradicts the prayer. ¹¹ At the Black Stone the circumambulant kisses it with his mouth if able, and otherwise touches it with his hand and kisses his hand. ¹¹ On graves: the Malikis, a Hanafi view and a Shafi'i view hold touching graves to be an innovation; the book quotes several jurists against touching or kissing graves, as the custom of Christians, and Ibn Taymiyya as reporting consensus that a grave is not touched or kissed. ¹¹¹²¹³ The Shafi'is in the school view and Ahmad in one report consider touching a grave with the hand disliked; al-Jamal excepts the case in which it is intended for blessing. ¹³ A Hanafi view and the Hanbali school view say touching a grave is not objectionable, and Ahmad in one report recommends it. ¹³

On yawning, it is recommended to suppress it, and if one cannot, to place the hand on the mouth. ¹³¹⁴ On sneezing, the sunna is to place the hand or garment on the mouth and lower the voice. ¹⁴ The Malikis recommend placing the hand on a sick person while praying for him, if the touch is not disliked to him. ¹⁴ On the hands of the dead: the Hanafis place the right hand on the right side and the left on the left, and forbid placing both on the chest; the Shafi'is allow placing them on the chest, the right over the left, or leaving them along the sides. ¹⁴