Ta'wid (compensation for harm)

التعويض

Ta'wid is in language a substitute, and in law the payment of a monetary replacement owed for harm done to another. It differs from taththim (fixing a price in an exchange), from taqwim (valuation), which belongs to compensation, from arsh (the sum owed for an injury short of death), and it is narrower than daman (liability). ^{1 2} Compensation is owed only against harm and is binding; harm may fall on property, its use, life, or a part of the body. ² Unlawful destruction calls for compensation by agreement, whether the right is God's (as hunting in the sacred state) or a person's. Lawful destruction calls for compensation only where another's right is involved. ² For a destroyed thing: a fungible item is replaced by its like, a valued item by its value at the place of destruction. ² For the loss of use: most jurists hold use guaranteed by the one who takes it; the Shafiis and Hanbalis guarantee the use of usurped property, the Malikis guarantee the yield of property used or left idle, and the Hanafis hold use is not property, except in three cases: an endowment, an orphan's property, and property prepared for rent. ^{3 4} In trusts such as deposit and agency, the holder is liable only for negligence or transgression, and so is a private hired worker; the shared worker is disputed. ^{4 5} On instigation: most jurists place liability on the instigator; the Malikis pursue him only when the actual wrongdoer cannot pay; al-Nawawi holds no liability for mere cause, such as opening a store or guiding a thief; the Hanbalis let the owner hold either. ^{4 5} On coercion, the jurists differ whether the coercer alone is liable or the coerced too. ⁵ Liability falls on one who destroys directly or by causing. The thing destroyed must be valuable property, and the destroyer must be liable in law. ⁵ Animals are guaranteed for damage to crops only where a keeper is present and does not restrain them; the rest is disputed. ⁵ Killing carries blood money where retaliation does not apply; loss of a limb carries its fixed sum, or else a just assessment. ⁵ No jurist, the book notes, spoke of monetary compensation for moral injury; the term is a recent one. ⁶