Nahb (plunder)

Nahb (plunder) is, in the lexicon, taking by force and dominance in the open; the jurists use it in two senses: taking by force in the open, and taking what the owner has permitted, such as what is scattered at feasts. It differs from embezzlement, usurpation, theft and brigandage. ^{1 2}

Nahb in the lexicon is taking by force and dominance over property; to plunder someone is to take his goods, and "to make plunder" is to leave goods open to be seized. A hadith says that when something was scattered and the people did not take it, the Prophet ﷺ asked "why do you not plunder?"; Ibn Hajar weakened its chain. ^{1 2} The jurists use two senses. The first is taking by force and dominance in the open: the Hanafis say it is taking openly by force from the outskirts of a town or village; the Shafi'is say taking by force and dominance while knowing the property; the Hanbalis say one who relies on strength and takes property as spoils. The second is taking what the owner has permitted, such as what is scattered at feasts. ²

Embezzlement (ikhtilas). Taking a thing in its owner's presence by quick snatching, in flight, whether the taker comes openly or secretly; plunder does not require quickness. Both are taking another's property without right. ² Usurpation (ghasb). Taking another's property by force, wrongfully, without brigandage; for the Hanafis, removing the owner's hand from his valued property openly by force. Plunder is narrower, since usurpation may occur without the owner's presence. ² Theft (sariqa). Taking, by a sane adult, a guarded sum or its value, belonging to another with no claim to it, secretly; plunder is open in the owner's presence. ²

Brigandage (hirabah). For most jurists, also called road-cutting, it is going out to take property, to kill or to terrify, openly and defiantly, relying on strength and far from help. Its relation to plunder in taking property is that both take another's property without right; brigandage depends on the absence of help, plunder does not. ³ The ruling on plunder (taking by force in the open). Taking another's property without his owner's consent is forbidden: seizing, plundering or stealing it is not lawful, on surah al-Baqarah verse 188 and surah al-Nisa verse 29, on the hadith "your blood, your property and your honour are forbidden to you", on the prohibition of plunder and of mutilation, and on "whoever plunders is not of us". Al-Qurtubi says the Sunnis agree that one who takes anything called property, small or great, is thereby a wrongdoer; Ibn Hajar al-Haytami counts seizing others' property by injustice among the grave sins. ^{3 4} The penalty for plunder. Plunder is a disobedience with no prescribed penalty, on the hadith "there is no amputation for the traitor, the plunderer or the embezzler", so it is not theft or brigandage; a discretionary penalty is due. ⁴ Resisting the plunderer. It is lawful, on the hadith "whoever is killed defending his property is a martyr". If the owner is killed he is a martyr; if the plunderer is killed his blood is lost, on the report of the man who asked the Prophet "what if he fights me?" and was told "fight him", and "if he kills me?" "you are a martyr", and "if I kill him?" "he is in the Fire". The jurists differ on repelling an assailant of property, see the entry on assault. ^{4 5} Its effect on transactions. (a) Picking up stray animals in a time of plunder is disputed; see the entry on lost property. (b) Accepting a deposit in a time of plunder is lawful and recommended for one who trusts his own honesty, and may be obligatory; for depositing a deposit with another in such a time, the Hanafis and Malikis allow it with a trusted guarantor, without liability; the Shafi'is and Hanbalis require returning it to its owner or his agent, and if that fails, to the judge or a trustworthy person. (c) A claim that a deposit was lost by plunder: if the cause was hidden, as theft, the depositary is believed on oath; if the cause was apparent, as fire or a raid or the plunder of an army, proof by general report or sight is needed. (d) A loan repaid in a time of plunder: the Shafi'is and Hanbalis say the lender need not accept it; the Hanbalis add that he need not accept it even if the borrower is harmed, since harm is not removed by harm. ^{5 6}

In detail, on the Shafi'i account of a claim that a deposit was lost by plunder: if the depositary claims loss by an apparent cause, such as the plunder of an army, and that cause was not known in that place, his word on the loss is not accepted; if it was known by witnessing or by widespread report, then if it was known to have struck the whole place so that the deposit's survival cannot be supposed, he is believed without oath, since the apparent state suffices; but if it was not known to have struck all and the deposit may have escaped, he is believed on oath. If he states no cause of loss he is believed on oath and is not made to name it; if he refuses the oath, the owner swears that he does not know of the loss and recovers. The Hanbalis say a claim of loss by an apparent cause is not accepted without witnesses testifying that the cause occurred in that district; if he cannot produce them he is liable, since such proof is not impossible, and widespread report suffices to establish the apparent cause. ⁶

On the loan, the Shafi'is add: if the lender stipulates a term for his own benefit, such as a time of plunder, while the borrower is solvent, the contract is invalid in the sounder view, since it draws a benefit; in the other view the contract is valid and the condition void. The safataja being a loan made to escape the danger of the road, the jurists differ on its ruling; see the entry on it. ^{6 7}

In Tabsirat al-Hukkam: if a group raids a man's house and takes what is in it while people watch, and they do not testify to seeing what was taken but know that a raid and plunder occurred, Ibn al-Qasim and Ibn al-Majishun say the plunderer's word stands, with his oath; Mutarrif, Ibn Kinana and Ibn Habib say the plundered man's word stands, with his oath, for what plausibly belongs to him, the burden falling on the wrongdoer. Malik, on one whose house thieves entered, who stole his goods and plundered his property and meant to kill him while he resisted and fought them, and who then claimed to know them or not: he is believed against them if they are known as thieves who take theft lightly, and he is not made to bring proof; the case happened in Medina in Umar's time, and Umar made them pay on his word and gave them a severe punishment. ⁷

If evidence establishes that a man plundered a purse and he says it held so much while its owner says otherwise, the plunderer's word stands with his oath, as Malik said. Ibn al-Qasim reports of him that if the plunderer threw the purse in a ruin without knowing its amount, or did not throw it and the two dispute the amount, the plunderer's word stands with his oath; Mutarrif, Ibn Kinana and Ashhab say in this and the like that the plundered man's word stands if he claims what plausibly belongs to him. ⁷

The jurists illustrate the plundering of a permitted thing by what is taken of what is scattered at weddings and feasts — sugar, nuts, almonds and the like — and they differ over taking what is scattered on such occasions: some say it is permitted, others say it is disliked; the details are in the entry on intihab. ⁷