General Rules of Jurisprudence Lesson 14

1. General Rules of JurisprudenceLesson 14 ”قاعدة اليد امارة على الملكية“ The rule of Hand part 2 “The hand sign of ownership” Is it indicating evidence or practical principle. ESTISHAAB vs. THE HAND What is the criteria of the HAND? Does the HAND indicate the ownership of the benefits Can the owner implement the rule of HAND?

2. The important evidence • The most important supporting evidence is the practice of intellectuals. • The secret behind the practice of the intellectuals is that most of the people who posses things are their belongings and they own them. • Some said that it is like an evidence which proves or indicates the ownership to the level of certainty . (like the evidence or narration of trusted, it is EMARAH) • Others said that it is like the practical principle (USOOL AMALIYA) it is used to prove the ownership only if it doubted and there were no witnesses for the claim against it. So it is only to relieve the practical responsibility.

3. Is it indicating evidence or practical principle. • This issue has an importance when there was a conflict between ESTISHAAB and this rule. • ESTISHAAB (extension of previous status) is a practical principle, so if the rule of HAND was a practical principle, then we have a case of conflict which requires a solution, but if the rule of HAND was an evidence type principle (EMARAH), then the practical principle can never conflict with the EMARAH or an indicating evidence. Because the indicating evidence prevails the practical principles.

4. THE ESTISHAAB neglect the rule of HAND • Initially no one owns a thing, before any one owns something it is not his, it belongs to some one, so the ownership is an occurring incidence, which does not exist previously. So if there was a doubt in the ownership of a person to a thing, ESTIHAAB will neglect the ownership, because for sure there was no previous ownership. The rule of HAND will support the ownership, because the one who has the control of it, proves the ownership. There fore is this a conflict, and if yes then which one prevails, the rule of HAND or ESTISHAAB, and why? • The rule of HAND prevails, because it is more specific to the ownership, and the specific rules are exempted from general rules and principles. • The rule of HAND is proven by both the authentic narrations and the practice of the intellectuals, so it is more stronger than ESTISHAAB. • And those who considered it EMARAH, as an indicating evidence, without any doubt to them it prevails the ESTISHAAB, because the EMARAH prevails or overrules the practical principles.

5. If the previous status was known: • If the previous status was unknown, and now it was in the hand then the rule of HAND prevails or overcomes the ESTISHAAB. • But if something was recently in a HAND or under the control of some one, and the recent status was unknown, but the previous status was for surly known, the we have two situations: • If there was enough evidence to prove it for the previous owner, and there was no possibility of a transaction happening to the recent owner then in this case ESTISHAAB prevails, for example it was known that this person has usurped the house, or the house was rented house, or …, and now the usurper claims the ownership, he has the control, possession, so the ESTISHAAB will prevail, because the previous status is confirmed that it was not his and now there is a doubt, so it will not be considered his belonging. • If there was a possibility of such transaction happened between the previous owner and the one who has his hand then the HAND will prevail. Example the case of FADAK, there were strong possibilities as it will be discussed later.

6. Conflict between the rule of HAND and the lease or rent contract • If some one lives in a house and he has full control over it, and claims that the house is his, using the rule of HAND, and the one who claims that it is his house, he has lease deed or rent contract which proves his claim, in this case the lease is an evidence and it is like the witnesses, so the ownership proving document overcomes the rule of HAND

7. What is the criteria of the HAND? • There is no specific criteria of the HAND or the control or the possession, it is how the URF or the custom understands it, which is a control in a way that he can sell it, buy it or what ever he can do which indicates in the community or the society that he is the real owner. Otherwise if we say that: • Something in the grip of hand like a pen, that cannot be the criteria because the house and the car cannot be held in the HAND. • If it is said something which is under control without complete freedom, such as the president he has the control on the country, but he cannot do what ever he wants with what ever is under his control. • If it is said under possession, then the rented house is under possession, or the representative who has been given the authority over the belonging of a person. So the criteria is the URF the community or the society which considers his control or possession in a specific way which indicates his ownership.

8. Does the HAND indicate the ownership of the benefits: • A person can own the benefits of a thing without owning such thing, such as rented car or a house, the benefits are owned by the persons who pays the rent of that thing. • So if we knew that a person was not an owner for sure, but we doubted that whether he owns the benefit or not, he is living in the house, and it is not his house, but he is staying in it and getting the benefits of living in it, now if there was a doubt that this person is living with the permission or paying the rent or not, there was a doubt, so can we implement the rule of HAND and prove that he owns the benefit? • No it can not be proven by the use of the rule of the HAND, because the evidence of the rule of the HAND does not stretch out to the cases other than the ownership of the thing, and not its benefits. • The benefits do not have a real existence, but they exist when they are consumed, but the things exist in reality.

9. Can the owner implement the rule of HAND? • If a person finds something in his house, and that thing is under his control, so can he consider that thing belongs to him? • If there were people entering his house regularly, then it is considered glean or someone's lost belonging (LOQATA) and the rules of LOQATA or glean are implemented, yes if it was found in a place where no one enters except the owner, then he can consider it his belonging based on the rule of the HAND. • This is based on the following narration:

10. The evidence: • - الحسن بن محبوب عن جميل بن صالح قال: قلت لابي عبدالله (ع): رجل وجد في بيته دينارا قال: يدخل منزله غيره؟ قلت: نعم كثير قال: هذه لقطة قلت: فرجل قد وجد في صندوقه دينارا؟ قال: يدخل احد يده في صندوقه غيره أو يضع فيه شيئا؟ قلت: لا قال: فهو له • The SAHEEHAH narrated by JAMEEL son of SALEH, said that I asked ABO ABDILLAH (Imam ASSADIQ (AS)): A man finds in his house DINAAR (Golden coin currency of that time)?, He (AS) said: Does any one else enters his house?, I said: Yes, plenty, He (AS) said: then it is a lost belonging (glean), I said: What if a man found DINAAR in his box?, He (AS) said: does any one else other than him puts his hand in that box, or puts something in that box? I said: No, He (AS) said: then it is his.