Ḥiyāzah as the Basis of Initial Ownership in Fiqh

This theoretical premise has been applied across various fiqhi analyses and may yield new insights, particularly in explaining the nature of certain modern financial transactions, including banking operations.

When a person seeks to establish ownership over external objects, a key question arises: what is the underlying basis of such ownership? This discussion explores the answer from the perspective of a number of jurists.

Ḥiyāzah as the Foundational Cause of Ownership

Muḥaqqiq Īravānī, in his marginalia on al-Makāsib, asserts that ḥiyāzah constitutes the root of all ownership. He writes:

“Acts of acquisition (ḥiyāzāt), which are the mother and foundation of ownership-generating causes, are limited in scope. All other modes of transfer stem from them. They confer ownership within rational convention for a defined duration—so long as the object remains under the control of the possessor.”

Similarly, the late Muhammad Baqir al-Sadr holds that ḥiyāzah is the origin of all ownership. In analyzing cases of ḥiyāzah of another’s property (ḥiyāzat māl al-ghayr), he outlines four rationally conceivable scenarios:

1. Ḥiyāzah results in neither ownership nor liability

This includes two sub-cases:

Where the second party’s possession is not independent, but considered an extension of the first party’s control—such as a trustee (wadīʿ) or an agent (wakīl).
Where the second party’s possession is independent, yet does not lead to ownership because the original owner has not granted permission for acquisition, nor liability, because the owner consents to the absence of guarantee—such as in a loan for use (ʿāriyah).

2. Ḥiyāzah leads to liability but not ownership

An example is usurpation (ghaṣb). Since the owner has not permitted appropriation, ownership is not established; however, due to the lack of consent regarding liability, the usurper bears full responsibility.

3. Ḥiyāzah leads to ownership but not liability

This is the reverse of the previous case, exemplified in gifting (hibah). Here, the owner consents to appropriation. Importantly, hibah is not merely a transfer of ownership, but rather permission for appropriation—hence, possession (qabḍ) is a necessary condition. The recipient becomes the owner, and since the donor consents to the absence of liability, no guarantee is incurred.

4. Ḥiyāzah leads to both ownership and liability

This is seen in loans (qarḍ). The borrower does not become owner or liable merely through the contract; rather, ownership and liability are established upon taking possession. This is because the lender permits appropriation but does not waive liability or gratuity.

Al-Ṣadr further clarifies:

“Ownership through ḥiyāzah is the first form of conventional ownership recognized by rational understanding, as if appropriation and labor produce an external object, thereby establishing a recognized relation of entitlement.”

Conclusion

Given that the focus here is on the initial acquisition of ownership, it appears inaccurate to place contracts (ʿuqūd), unilateral acts (īqāʿāt), or inheritance (irth) alongside ḥiyāzah as primary causes of ownership. While such mechanisms do generate ownership, they do not constitute original acquisition; rather, they function as means of transfer or exchange.

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