The way of taking back unjustly taken money | The official website of Sheikh Muhammad Ali FERKUS
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Friday 13 Rabî` Al-'Awwal 1442 H - October 30, 2020 G



Fatwa: 4

Category: fatwas about selling and monetary transactions

The way of taking back unjustly taken money

The question:

A man engaged employees to perform a work for him but he did not remunerate them. Is it permissible for them to take their rights by force if they can or take them secretly if they are weak?

There are among our brothers who have founded such act on the hadith of Hind when she claimed her husband to the Prophet صلَّى الله عليه وسلَّم. They have also attributed this opinion to Ibn Hazm رحمه الله. Thank you!

The answer:

All praise is due to Allah, the Lord of the Worlds. Peace and blessing be upon whom Allah sent as a mercy to the Worlds, upon his Family, his Companions and his Brothers till the Day of Resurrection.

What is included in the content of the question is known as the issue of “obtention”. The scholars have different opinions regarding this issue. The majority of them consider that it is recommendable to not reward a person for wrongdoing by another wrongdoing, in accordance with the hadith of Abu Hurayra according to the Prophet صلَّى الله عليه وسلَّم: “Pay the deposit to him who deposited it with you, and do not betray him who betrayed you.”(1). What makes us say that it is recommendable are the verses which indicate the permissibility, as Allah’s عزَّ وجلَّ saying:

﴿وَجَزَاءُ سَيِّئَةٍ سَيِّئَةٌ مِثْلُهَا﴾ [الشورى: 40].

The meaning of the verse:

The recompense for an evil is an evil like thereof﴿ [Ash-Shûra (The Consultation): 40], and the verse:

﴿وَإِنْ عَاقَبْتُمْ فَعَاقِبُوا بِمِثْلِ مَا عُوقِبْتُمْ بِه﴾ [النحل: 126].

The meaning of the verse:

And if you punish (your enemy, O you believers in the Oneness of Allâh), then punish them with the like of that with which you were afflicted.﴿ [An-Nahl (The Bees): 126] and other verses.

The considered opinion in this question is the saying that it is obligatory to take money according to his right from the unjust person whether it is of the same kind of what was taken from him or not, but without being unjust to the oppressor, and this by taking only one’s due right after the selling, and if it exceeds his right, he should give him the excess or to his inheritors. If it does not attain the due right, then the unjust person is required to give it to him, and there is no exception only when he is forgiven the fees he owes to him.

What is considered as argument in this question is Allah’s عزَّ وجلَّ saying:

﴿وَلَمَنِ انتَصَرَ بَعْدَ ظُلْمِهِ فَأُولَئِكَ مَا عَلَيْهِمْ مِن سَبِيلٍ﴾ [الشورى: 41].

The meaning of the verse:

And indeed whosoever takes revenge after he has suffered wrong, for such there is no way (of blame) against them.﴿ [Ash-Shûra (The Consultation): 41]. And Allah’s عزَّ وجلَّ saying:

﴿وَالَّذِينَ إِذَا أَصَابَهُمُ الْبَغْيُ هُمْ يَنْتَصِرُونَ﴾ [الشورى: 39].

The meaning of the verse:

And those who, when an oppressive wrong is done to them, they take revenge.﴿ [Ash-Shûra (The Consultation): 39].

And the verse:

﴿وَالْحُرُمَاتُ قِصَاصٌ﴾ [البقرة: 194].

The meaning of the verse:

and for the prohibited things, there is the Law of Equality (Qisâs).﴿ [Al-Baqara (The Cow): 194].

And the verse:

﴿فَمَنِ اعْتَدَى عَلَيْكُمْ فَاعْتَدُوا عَلَيْهِ بِمِثْلِ مَا اعْتَدَى عَلَيْكُمْ﴾ [البقرة: 194].

The meaning of the verse:

Then whoever transgresses the prohibition against you, you transgress likewise against him﴿ [Al-Baqara (The Cow): 194].

And among the hadiths that support this opinion, the hadith of the Prophet صلَّى الله عليه وسلَّم who told Hind, the wife of Abu Sufyân, “Take what is sufficient for you and your children, and the amount should be fair and reasonable(2) as she deserves the expenses. Al-Bukhâri has also reported the hadith “If you stay with some people and they entertain you as they should for a guest, accept their hospitality, but if they don’t do, take the right of the guest from them”(3).

This been said, if we assume that the aforesaid hadith of Abu Hurayra: “… and do not betray him who betrayed you” is authentic, it cannot be taken as an argument in such question, as taking one’s right back is not a betrayal, on the contrary, it is a right and a duty. A betrayal is however, to betray, by using injustice and falsehood, a person who owes you no right, as Ibn Hazm Ad-Dâhiri declared, then As-San`âni who agreed with him by saying: “Among the arguments that support this, the hadith : “Help your brother, whether he is an oppressor or he is an oppressed one”(4), as the mentioned hadith indicates clearly the obligation, and helping the oppressor consists in taking him away from injustice by taking back the money he has unjustly taken from people”(5).

I say: all this if there is no evil that will result from taking back their rights by such a way that is equal to the wanted interest or stronger than it. If there will be an evil as a result of their action, then it is not permissible in accordance with the rule that stipulates that: “Repelling harm takes precedence over procuring benefits”.

The perfect knowledge belongs to Allah. Our last prayer is all praise is due to Allah, the Lord of the Worlds. Peace and blessing be upon our Prophet صلَّى الله عليه وسلَّم, his Family, his Companions and Brothers till the Day of Resurrection.

 

Algiers, 19th Ramadân, 1417H.
Corresponding to: January 28th, 1997.



(1) Reported by Abu Dâwûd in his “Sunan”, chapter of “Wages”, concerning a man who takes his property from the person who holds it. (hadith 3535), At-Tirmidhi in his “Sunan”, chapter of “Sellings” (hadith 1264), Ad-Dârimi in his “Sunan” (hadith 2499) and Al-Hâkim in “Al-Mustadrak” (hadith 2296) from the hadith of Abu Hurayra رضي الله عنه. As-Sakhâwi said in “Al-Maqâssid Al-Hassana” (51): “Ibn Mâjah said: it is narrated from six ways of narration, but they are all weak, I said: but the hadith becomes strong by gathering its different ways”. This hadith is judged authentic by Al-Albâni, by considering its different ways of narration, in “As-Silsila As-Sahîha” (hadith 423).

(2) Reported by Al-Bukhâri, chapter of “Expenses” concerning if the man does not spend on his family, then the wife would take from his property without his knowledge (hadith 5364), Muslim, chapter of “Judgments” (hadith 5474), Abu Dâwûd, chapter of “Wages” concerning a man who takes his property from the person who holds it (hadith 3534), An-Nassâ'i , chapter of “The manners of judges” concerning a ruler who passes sentence of an absent person when he(the ruler) knows him (hadith 5437), Ibn Mâjah, chapter of “Trades”, concerning what a woman has the right to take of her husband’s money (hadith 2381) and Ahmad (7/60) (hadith 23597) from the hadith of `Â'isha رضي الله عنها.

(3) Reported by Al-Bukhâri, chapter of “Injustices” concerning the retaliation of the oppressed one when he finds his oppressor’s money (hadith 2461), Muslim, chapter of “The fallen thing which is picked up” (hadith 4613), Abu Dâwûd, chapter of “Food”, concerning hospitality (hadith 3754), Ibn Mâjah, chapter of “Good manners”, concerning the guest’s right (hadith 3807) and Ahmad (5/145) (hadith 16894), from the hadith of `Uqba Ibn `Âmir رضي الله عنه.

(4) Reported by Al-Bukhâri, chapter of “Injustices” concerning [the saying of the Prophet صلَّى اللهُ عليه وسلَّم]: help your brother, whether he is an oppressor or he is an oppressed one (hadith 2443), At-Tirmidhi, chapter of “Trials” (hadith 2421) and Ahmad (hadith 13421), from the hadith of Anas Ibn Mâlik رضي الله عنه.This hadith is reported also by Muslim, chapter of “Virtue, keeping good relations with one’s kith and kin and good manners”, concerning helping one’s brother, whether he is an oppressor or he is an oppressed one (hadith 6582), from the hadith of Jâbir رضي الله عنه.

(5) “Subul As-Salâm” of As-San`âni (3/69).