To understand this principle, we need to examine the following sections:

1. The definition of ‘Hand’ and ‘Possession’

2. The basis of this rule

3. Its universality

4. Conflict between this rule and the presumption of continuity

5. The possessed items

1. The Definition

In the Arabic language, the above principle may be transliterated as Al-yad amarah ala al-melkiyah. Although ‘yad’ literally means ‘a hand’, to obtain a clear understanding of the role of a hand vis-a-vis possession, we need to familiarize ourselves with the variety of usages of the word ‘yad’.

In addition to its literal meaning, ‘yad’ may also describe a handle, power, control, authority, assistance and help. Used in Islamic law, 'hand' specifically indicates possession or actual control. The holder of control is thus known as ‘dhul yad’, rightful possession as ‘yad muhiqah’ and, conversely, unrightful possession as ‘yad mubtilah’.

The application of this principle becomes apparent when one observes whether the manner in which a person treats something in their possession accords with the manner in which others treat similar items that they own. We then conclude that he/she is indeed the real owner, and rule out any possibility that the item has been stolen.

However, if another person lays claim to the ownership of that item, they have the responsibility to prove the validity of their claim. If they fail to prove that, all legal systems accept that rightful ownership has been accurately determined via the above rule. For example, a person who is taking full shopping bags home is acknowledged to be the rightful legal owner of the bags' contents. Any who wish to claim otherwise are required to submit convincing evidence to support their claim.

2. The Basis Of This Principle

From Ahadith

1. Hafs Ibn Gheyath narrates from Imam al-Sadiq (‘a) that he was asked: 'When I see something in the possession of another, may I bear witness in court that, that person is the owner?'

Imam al-Sadiq (‘a) replied in the affirmative. The questioner then asked: 'Because it might rightfully belong to someone else, should I not bear witness that I found it in their possession rather than witness that it belongs to them?'

When asked by Imam al-Sadiq (‘a) if it was lawful to buy that item from them, the man replied that it was.

The Imam (‘a) then asked, 'If it might belong to someone else how can it be purchased to become your legal property?'

The Imam (‘a) concluded, 'If you do not rely on ownership being valid, no business transaction can ever be possible or valid'.

This hadith has been reported on the authority of Al-Kulayni, in Al-Kafi Vol. 7, p. 387 and Al-Saduq, in Man La Yahduruhu al-Faqih, Vol. 3, p. 31 and Shaykh Al-Tusi, in Al-Tahdhib Tahdhib al Ahkam? Vol. 6, p. 261.

2. Uthman Ibn lsa and Hammad Ibn Uthman both narrate from Imam al-Sadiq (‘a) that a conversation took place between Imam Ali (‘a) and Abu Bakr regarding ownership of Fadak. Imam Ali (‘a) records in Nahj al­Balaghah, letter number 45, that 'Fadak was all that we possessed under this sky. However, when a group of people lusted after it, the other party with-held themselves from it knowing that Allah is the best of arbiters.'

The conversation is recorded as follows:

Imam Ali (‘a): Do you judge us contrary to Allah's rulings?

Abu Bakr: No.

Imam Ali (‘a): If I laid claim to an item in the possession of a Muslim, whom would you order to provide two witnesses?

Abu Bakr: I would ask you to provide two witnesses.

Imam Ali (‘a): And if a Muslim claimed an item in my possession, would you ask me to provide two witnesses to attest to the fact that I had owned it during the Prophet's lifetime as well as after his demise?

Abu Bakr: (Made no comment and remained silent.)

This hadith1 clearly indicates that the possession of, or ongoing authority over, an object or commodity conveys legal recognition of ownership and rightful possession.

The chain of narrators of the above hadith has been recognized to be both sound and strong.

3. Yunus Ibn Ya’qub narrates the opinion of Imam al-Sadiq (‘a) regarding a wife who predeceases her husband, and a husband who predeceases his wife. The Imam (‘a) said: 'The wife may take the household effects that are normally used by women, whilst items normally utilized by both men and women are to be shared with the deceased's heirs. Whoever holds control over an item is deemed to own that item.'2

Although this statement is part of the ruling of inheritance between a spouse and the deceased spouse's heirs, jurists believe that it conveys a general ruling that has validity beyond matters of inheritance. Especially when we observe 'Whoever' ...

4. Al-Kulayni narrates from Muhammad Ibn Muslim, on the authority of Imam al-Baqir (‘a) that when he (‘a) was asked for a ruling concerning money found in a house, he (‘a) replied, ‘If the house is occupied the money clearly belongs to the occupants. However, if a house is deserted and in ruin, whoever finds money in it acquires all rights to it.’3

From Consensus

Many jurists have relied on consensus to support the principle that possession indicates ownership. However, according to Imamiyah jurists, consensus is acceptable only in instances that reflect the approval of the error-free Imam (‘a) and as Ayatollah Bujnordi mentions in his book Al­Qawa’id al-Fiqhiyah, Vol. 1, p. 113, the above consensus does not meet the necessary criterion and thus cannot be relied upon.

It is safe to conclude that there is no need to depend on consensus as its basis is explained under the next heading 'Common practice'.

Common Practice

There is no doubt that all peoples, regardless of belief, race or degree of civilization, regard 'the one who holds authority over any item' as being its real owner. If any wish to make claims to the contrary, they are obliged to provide evidence to support that claim.

Throughout history, 'common practice' has been widely accepted in Muslim communities and no Imam or Caliph has ever rejected it.

When people observe that someone is building or demolishing something on a piece of land or letting a property for rent, they assume that unless someone else challenges that action, it is being carried out by the owner of the property or someone acting on her/his behalf. Indeed, all legal systems consider possession as constituting 'nine-tenths of the law'.

Consideration of all the available sources leads one to conclude that this is indeed a general principle that has universal acceptance.

3. The Universality Of This Principle

There is no doubt that the above principle is universal and applicable to all peoples, Muslim or non-Muslim. When one seeks to purchase a carpet, a motor car, or an item of furniture, the person or company that holds authority over that item is automatically accepted as its legal owner.

When a Muslim trader wants to import five tonnes of sugar from Cuba he opens a letter of credit and proceeds to place his order, without any need to investigate if the supplier is the real owner of the merchandise or not. This is because the above-mentioned principle is recognized by him to provide valid proof of ownership. When a tourist goes to Singapore and buys an antique clock, no doubts are entertained or investigation undertaken, regarding the item being legally owned by the vendor. This is because it is common practice to recognize the validity of this principle.

4. Conflict Between This Rule And The Presumption Of Continuity

One of the tools mujtahids use to deduce laws from their sources is the 'presumption of continuity' - istishab. This will be fully discussed under principle 7, 'Certainty is not challenged by doubt'.

What happens when these two principles conflict? For example, when 'Presumption of Continuity' leads to belief that a motor car was for some years owned by Mr A, but the 'Principle that Possession indicates Ownership' testifies to that same motor car being indeed owned by Mr B.

Although chapter 11 covers conflicting evidence and provides guidelines to the resolution of such conflicts, we will summarize the above case: Even though reliance on the principle of possession is universal, we need to bear in mind that it is normal for the ownership of a motor car to be frequently transferred from one person to another. As ownership may even sometimes be repeatedly changed in the same month, it may be concluded that the principle of possession indicates that ownership holds precedence over the presumption of continuity. Thus, certainty is challenged by another strong proof and not by any doubt.

5. The Possessed Items

It is not necessary for ownership to be based upon trade or purchase. There are items from 'ownerless' sources, such as fruit from trees on common land, water drawn from rivers or springs, and creatures hunted or fished in areas where there is no private ownership. Some items may also come into a person's possession through inheritance or by their being a beneficiary of an assurance policy.

In all the above examples, when we find an item in the possession of a person, we recognize that person to be the legal owner - without consideration as to how that item was acquired. However, if another person presents strong evidence to show that it is they who own the item, the above principle is rendered invalid.

• 1. Wasa'il al-Shi’ah, Vol. 27, p. 293.
• 2. Wasa'il al-Shi’ah, Vol. 26, p. 216.
• 3. Wasa'il al-Shi’ah, Vol. 25, p. 447.