Use of the borrowed thing and its guarantee

This section gathers the general rules of the ariya, the loan for use: the validity of a clause that waives or imposes liability, whether the loan binds the lender, the case of the borrower who refuses to return the item on demand, disputes between lender and borrower over the nature of the contract, and the dispute over its return. The positions of the four schools are set out with their internal views and classical sources. The ariya is called "liable" by those who charge its loss to the borrower, and "a trust" (amana) by those who tie it only to his fidelity.

The status of the clause that waives or imposes liability

The jurists differed over the borrower who stipulates the waiver of liability in an ariya, according to those who say the ariya is liable, or over the lender who stipulates liability upon the borrower, according to those who say the ariya is a trust: is such a clause valid or not?

The majority of the jurists hold that the contract remains as it is: the clause, whether present or absent, has no effect in changing the nature of the contract, apart from a minor divergence that follows. Whoever says the ariya is liable does not validate a stipulation waiving liability: that is the school of the Shafi'is and the Hanbalis. Whoever says the ariya is a trust in the hands of the borrower, like the Hanafis, holds that stipulating liability upon the borrower is not valid: it remains a trust in his hands.

Whoever distinguishes between what can be lost beyond the borrower's reach and what cannot, like the Malikis, holds that stipulating the waiver of liability is not valid for what can be lost beyond him, on the sound view in their school, and that liability cannot be imposed either for what is a trust, such as what cannot be lost beyond him. For most of them the clause therefore does not change the nature of the contract: for those who call it a trust, the clause imposing liability on the borrower is not valid; and for those who call it liable, they do not change the nature of the contract into a trust by waiving liability, and they keep the liability upon him.

Here is the detail of each school. The Hanafis have two views on the clause imposing liability upon the borrower.

The first: if the lender stipulates liability upon the borrower, the clause is valid. Al-Hadadi judged it definitively in Al-Jawhara al-Nayyira: "if he stipulates liability in it, it becomes liable by the clause". He relies on the words of the Prophet (peace be upon him) to Safwan ibn Umayya, when the latter lent him a coat of mail:

"Are you taking it by force, O Muhammad?" He replied: "Rather a loan for use for which I answer"Words of the Prophet (peace be upon him) to Safwan ibn Umayya, reported by al-Bukhari

He therefore took it with the clause of liability (Al-Jawhara al-Nayyira, 4/168-169). The second view, the sound one in the school, is that if the lender stipulates liability upon the borrower, the clause is idle and void and there is no liability. If he says: "lend me your mount or your garment, and if it is lost I answer for it", or: "I lend it to you with a clause of liability", the clause is void and he does not answer for it (Al-Jawhara al-Nayyira, 4/169; Al-Lubab, 1/653; Majma' al-Anhar, 3/482; Al-Ashbah wa-l-Naza'ir, p. 100-101).

Al-Baghdadi (may Allah have mercy on him) says: stipulating liability upon the borrower is void; he cites it in the chapter on guarantee (kafala) of Al-Hidaya. It has been said that if the lender stipulates liability, the thing becomes liable with us, in one transmission; al-Zayla'i mentioned it and judged it definitively in Al-Jawhara without saying "in one transmission", yet he then cited a branch from Al-Buzaziyya drawn from Al-Yanabi'. He then says: as for the deposit (wadi'a) and the leased property, they are never liable under any circumstance. Yet Al-Buzaziyya says: "lend me this on condition that if it is lost I answer for it": he lent it and it was lost, with no liability, according to the constant rule of similar cases. In Al-Muntaqa: if he says to another "lend me your garment, I answer for it", there is no liability upon him; the clause is void, and the same ruling applies to the other trusts, such as deposits (wada'i') and the like (Majma' al-Damanat, 1/163).

It is said in Al-Durr al-Mukhtar: "the clause of liability is void, like the clause of its absence in the pledge (rahn), contrary to Al-Jawhara". Ibn Abidin comments: "his words, the clause of liability is void, are the view followed by the majority, as we have established. His words, like the clause of its absence, mean the absence of liability. His words, in the pledge, mean if it perishes. His words, contrary to Al-Jawhara: there she judged it definitively liable by the clause of liability without saying 'in one transmission', although the text carries two transmissions, as appears from al-Zayla'i's wording and from what we quoted from Al-Hindiyya." In Al-Buzaziyya: "lend me this on condition that if it is lost I answer for it": it was lost, and he does not answer for it. End of quotation. In Al-Tuhfa: if he stipulates liability in the ariya, is the clause valid? The masters differ on it. End of quotation (Hashiyat Ibn Abidin, 8/389).

As for the Malikis, they say on the sound view in their school: liability is established upon the borrower for what can be lost beyond him even if he stipulates with the lender the waiver of liability in that respect, because liability rests upon him from the origin, and the lender derives no benefit from his clause.

Another view holds that his clause benefits him, because it is a known matter and the waiver of liability is also known. In any case the clause does not corrupt the contract on the sound view; it has been said that it corrupts it, and the lender then has the fee (ujra) of what he lent.

But if the ariya is of the kind that cannot be lost beyond the borrower, such as mounts and the like, or if evidence is established, there is no liability upon the borrower even if the lender stipulated liability. The ruling is then that of its loss without evidence, unless his lie becomes apparent; and the clause has no effect, even for something he feared, such as a road, a river or the like.

The ariya with a clause of liability turns into a corrupt hire (ijara), for it is as if he hired it out for its value, which is unknown; there is then the fee of the like with liability for the lapse (fawat) upon enjoyment of the benefit, and the contract dissolves before enjoyment of the benefit (Al-Taj wa-l-Iklil, 4/289; Sharh Mukhtasar Khalil, 6/124; Al-Sharh al-Kabir with the hashiya of al-Dasuqi, 5/147; Al-Sharh al-Saghir, 8/187; Bidayat al-Mujtahid, 2/236).

As for the Shafi'is, al-Khatib al-Shirbini (may Allah have mercy on him) says: if he lends it on condition that it be a trust, the clause is void, as mentioned by the two shaykhs (al-Nawawi and al-Rafi'i), and they did not address the validity or corruption of the contract. The purport of al-Isnawi's words is its validity, and it is to that that their expression "the clause is void" alludes (Mughni al-Muhtaj, 3/273; see Al-Bayan, 6/510; Rawdat al-Talibin, 3/621; Al-Najm al-Wahhaj, 5/148; Tuhfat al-Muhtaj, 6/701-702; Hashiyat Qalyubi, 3/48-49).

As for the Hanbalis, Ibn Qudama (may Allah have mercy on him) says: if he stipulates the waiver of liability, it does not fall away, and al-Shafi'i said this. Abu Hafs al-Ukbari said: it falls away. Abu al-Khattab said: Ahmad alluded to it; it is the view of Qatada and al-Anbari, for had he permitted its loss, its liability would not have been due; likewise when he waives its liability upon him.

It has been said: rather the school of Qatada and al-Anbari is that the thing is not liable unless its liability is stipulated, in which case it is due, by the words of the Prophet (peace be upon him) to Safwan: "rather a loan for use for which I answer".

Our argument: any contract that requires liability is not changed by a clause, such as what is taken into possession by a sale, valid or corrupt; and likewise what requires trust, such as the deposit (wadi'a), the partnership (sharika) and the mudaraba. As for the Prophet (peace and blessings of Allah be upon him), his deed was an information about the nature of the ariya and its ruling.

The difference arises when the lender permits destruction: destruction is an act whose permission is valid and whose ruling falls away, for no cause of liability arises together with the permission. But the waiver of liability here would be the negation of the ruling despite the presence of its cause, and that is not for the owner: he does not own the permission of that (Al-Mughni, 5/129; Al-Kafi, 2/382).

Is the ariya binding on the lender?

The jurists differed over the ariya: is it binding or not, so that the lender may take it back whenever he wishes? This, after their agreement that the borrower may return it whenever he wishes, because it is a permission (ibaha): it is for him like the permission to eat, for one who may abstain from it (Al-Mughni, 5/133).

The Malikis hold that the ariya is either restricted by a task, such as lending land to cultivate it entirely or in part, the grinding of an irdabb (a grain measure) or its load, or the riding of a mount; or restricted by a term, such as dwelling in a house for a month. In that case it is binding: the lender may not take it back before the term or the specified task, nor take it before it, because the term has become a right of the borrower and the lender can no longer retract, just as he cannot retract in a gift (hiba).

"O you who believe, fulfil your contracts"

Surah al-Ma'idah, 1

"Every good deed is a charity"Reported by al-Bukhari and Muslim

This also because the lender has transferred to him the ownership of the benefit for a known term, the thing standing in his hands by a lawful contract: retraction is therefore no longer possible, as with the slave bequeathed for his service or property granted for life ('umri).

If the borrower has planted and built, and the fixed term then ends, or a term in which a similar benefit is enjoyed, the owner has the choice: either he takes from the borrower his planting and building by uprooting them, or he gives him their value uprooted, if the thing keeps a value after uprooting, whether that was stipulated in the contract or not.

For the borrower has returned the ariya occupied by his property: it must therefore be removed from it, and the origin of this is the case of one who returns a house with belongings inside. Then, what necessarily accompanies a thing does not need to be stipulated, and one of the requirements of the ariya is to return it empty so that the owner may enjoy it. Finally, it is like the meaning of leaving part of the ariya in his hands, for the place of the planting cannot be used by the owner, nor planted in, nor sown, nor built upon: it is thus like one who borrowed belongings and returned part of them while keeping another part in his hands: he must return it.

If on the other hand the ariya is unrestricted, such as lending a garment to wear, land to cultivate, or a house to dwell in: two views in the school.

• The first: he must leave it in the borrower's hands for a term in which a similar benefit is enjoyed, that is, what custom normally destines it for: the owner may not take it back before, because custom counts as a condition. The scope of the customary term applies to what is lent for something other than building and planting, or to those before they occur, or after they have occurred while the lender has not paid the borrower what he spent; if he paid what was spent on building or planting, removal before the customary term is permitted.
• The second, the sound one: if the ariya is unrestricted it is not binding: the owner takes it back whenever he wishes, and the measure of what it is usually lent for is not required, on the relied-upon view.

Another view: if he lends it for building or farming and these occur, the customary term binds by agreement; except that if he planted or built, even close to the time of the loan, he is paid what he spent on it (Al-Ishraf, 3/105-106, nos 964-965; Al-Ma'una, 2/186; Al-Dhakhira, 6/220; Al-Taj wa-l-Iklil, 4/291-292; Sharh Mukhtasar Khalil, 6/126; Al-Sharh al-Kabir with the hashiya of al-Dasuqi, 5/151-152; Al-Sharh al-Saghir, 8/193).

The majority of the jurists, Hanafis, Shafi'is and Hanbalis, hold that the contract of ariya is a revocable contract, not binding: the lender may take back his property whenever he wishes, whether a term is fixed or not. For it is a contract of benefit and mutual assistance; it is ownership without counter-value, hence not binding; and binding it would move it from the ruling of ariya to the ruling of hire. If its ruling could vary, for the lender, according to the term fixed, it would also vary for the borrower; the benefit of the term being to prevent the borrower from disposing of the thing after it elapses.

This also because future benefits have not been acquired in his hands: he does not own them by the loan, as if the thing itself had not been acquired. And because the ariya is a favor and a benefaction from the lender, and a benefit for the borrower: were we to make it binding, people would turn away from it (Tuhfat al-Fuqaha, 3/179; Bada'i' al-Sana'i', 6/216-217; Al-Ikhtiyar, 3/70; Al-Jawhara al-Nayyira, 4/168; Al-Lubab, 1/652; Mukhtasar al-Waqi'a, 2/127; Tabyin al-Haqa'iq, 5/88; Al-Hawi al-Kabir, 7/118; Al-Bayan, 6/516; Al-Muhadhdhab, 1/363; Al-Najm al-Wahhaj, 5/153; Mughni al-Muhtaj, 3/277-278; Tuhfat al-Muhtaj, 6/709-710; Al-Mughni, 5/133; Sharh Muntaha al-Iradat, 4/103; Kashshaf al-Qina', 4/80).

The jurists then differed: if land is lent to cultivate or build on, may the lender take it back? The Hanafis say: if he lends land to build on it or plant it, either without a term, or for a term such as ten years or the like.

If the loan is unrestricted and the borrower builds or plants, the owner may take back his land whenever he wishes, for the ariya is not binding, and the borrower must take his planting and building, for he occupied the land of another without its owner consenting to it. The borrower may not either make the lender liable for the value of his planting and building while leaving them in place, for there has been no deception (gharur): the ariya is taken back in every case.

If the loan is for a term, the lender may also take it back, but the borrower has the choice: either the lender becomes liable for the value of the planting and building left standing, because he deceived him by fixing a long term and then taking back the land before its end; or the borrower takes his planting and building, if the uprooting does not harm the lender's land. If the uprooting harms, the choice belongs to the lender: either he takes the planting and building paying their value, or he is satisfied with cutting them.

But if he lent the land to cultivate, the borrower cultivated it, and the lender wants to take it back while the crop has not ripened: that is not permitted to him; the land remains in the borrower's hands under the regime of hire until he takes the harvest, for that is a short and known term. The matter is examined from both sides, unlike planting and building: were it to become a hire, the lender would be harmed by the length of the term (Tuhfat al-Fuqaha, 3/179; Bada'i' al-Sana'i', 6/216-217; Al-Ikhtiyar, 3/70; Tabyin al-Haqa'iq, 5/88).

The Shafi'is say: if he lends land to build or plant without mentioning a term, then takes it back after building or planting: if the lender stipulated the cutting, such as demolition for free, that is, without compensation, the work binds the borrower by the clause, because he consented to bear the harm that the uprooting would inflict on him. If he refuses, the lender may cut, and the borrower must level the land if that was stipulated, otherwise not.

If the clause of uprooting was not stipulated and the borrower chooses to uproot, he uproots without compensation (arsh), for it is his property and he accepted its decrease; he is not required to level the land on the soundest view, for the loan, with the lender's knowledge that the borrower may uproot, implies consent to what the uprooting causes.

The second view, which al-Nawawi (may Allah have mercy on him) validated: the uprooting binds him, for he did it by his own choice; if he is prevented from it, he is not compelled, and if he uproots, he must restore the land to its previous state. If he does not choose uprooting, he does not uproot for free: the lender has the choice between keeping the work for the fee of the like, or having it uprooted, or having the building demolished while paying the compensation for the decrease, namely the difference between its value standing and uprooted.

If the lender chooses none of these options, the borrower does not uproot for free if he pays the fee, because of the absence of harm; and the same applies if he does not pay it, on the soundest view (Al-Bayan, 6/519-520; Al-Najm al-Wahhaj, 5/154, 157; Mughni al-Muhtaj, 3/279, 281; Tuhfat al-Muhtaj, 6/717, 720; Al-Dibaj, 2/372-373).

As for the Hanbalis, Ibn Qudama (may Allah have mercy on him) says: if one lends something for a benefit during which taking back the ariya would harm the borrower, taking it back is not permitted, for taking it back harms the borrower and harming him is not permitted. Example: a plank is lent to caulk a ship; he caulked it and went to sea: taking it back is not permitted while he is at sea, but it becomes possible again before entering the sea and after leaving it, in the absence of harm.

If he lends land in which to bury a dead person: taking it back is permitted as long as he has not buried him; once the burial is done, taking it back is no longer permitted as long as the dead body has not decomposed. If he lends a wall on which to rest the ends of his planks: that is permitted, like lending land for building and planting; taking it back is permitted as long as he has not placed the wood, and after placing it as long as he has not built upon it, for there is no harm in that. If he builds upon it, taking it back is not permitted, because of the demolition of the building.

If he says: "I will pay you the compensation for the decrease caused by the uprooting", the borrower is not bound by it, for if he uproots, it is what belongs to the borrower that is removed, and the borrower is not required to remove part of his property against payment of its value. If the wall collapses and the wood falls with it, or if the borrower removes it by his own choice, he cannot restore it, whether he built the wall with his tool or otherwise, for the ariya is not binding. Taking it back was prevented before the collapse only because of the harm done to the borrower by removing what he was permitted to place upon; and that has ceased. The same applies if the wood and the wall fall together.

If he lends land to cultivate something: taking it back is permitted as long as he has not cultivated; once the cultivation is done, taking it back is no longer permitted until the crop ends. If he offers him the value of the crop to become its owner, that is not granted to him, Ahmad stated it explicitly, for the crop has a term at which it ends. If it is of the kind harvested green (qasil: what is cut from the crop while green, as fodder for the mounts), taking it back is permitted at the time when harvesting is possible, in the absence of harm; otherwise, taking it back occurs only at its end. And if he permitted him to build and plant on the land, taking it back is permitted before the uprooting.

If he planted and built, the owner may take back what lies between the planting and the building, for neither the borrower's ownership attaches to it, nor does taking it back harm him: it is as if he had built and planted nothing. If the borrower chooses to take his building and planting, that is granted to him, for it is his property and he owns its transfer; he must then level the pit, as al-Qadi mentions, for the borrower consented to it when accepting the loan, knowing that he may uproot his planting. It is also possible that leveling the pit is required of him because the uprooting is of his own choice: were he prevented from it he would not be compelled, and the leveling of the pit would then be required of him, as if he had laid waste a land he had not borrowed.

If he refuses to uproot, the lender pays him what decreases through the uprooting, or the value of his planting and building standing, and the borrower is compelled to it, for it is a taking back within the ariya without harm. If the borrower says: "I will pay the value of the land so that it become mine", that is not granted to him, for the planting is accessory and the land the principal: that is why the planting and the building follow the land in sale, without the land following them. Al-Shafi'i said all of this.

Abu Hanifa and Malik said: the borrower is required to uproot without liability, unless the lender lent it to him for a known term and then took it back before its end: in that case the lender did not let him enjoy the term, and the uprooting is required of him, as if the clause had been stipulated.

Our argument: he built and planted with the lender's permission, without a clause of uprooting: uprooting without liability is therefore not required of him, just as if the lender demanded it before the term expired. Their words "he did not deceive him" are rejected, for the planting and the building are meant to remain, and the fixing of the term points to its beginning: it is as if he said: "do not plant after this term".

If the lender refuses to pay the value and the compensation for the decrease, and the borrower refuses to uproot and pays the fee, the work is not uprooted, for the loan requires benefit without liability, and permission covering what remains permanently and whose removal harms implies consent to keeping it.

"An usurped share of water has no right"Reported by al-Bukhari

His words indicate, by their inverse meaning, that a share of water not taken by usurpation gives a right. Thereupon, if the two parties agree on a sale, the land is sold with its planting, and each of the two is given the measure of his right. It is asked: what is the value of the land without planting or building? If the answer is: ten, it is said: and how much is it worth planted and built? If the answer is: fifteen, then the lender has two thirds of the price and the borrower one third of it (Al-Mughni, 5/133-135).

When the lender demands return and the borrower does not return

The Hanbalis hold in one view that the burden of returning rests upon the lender; al-Mardawi says: it has been said that the burden of returning rests upon the owner; he mentions it under the thirty-eighth rule (Al-Insaf, 6/116).

If the lender demands the ariya and it is not returned: the ariya, as mentioned, is liable without restriction among the Shafi'is and the Hanbalis, and a trust among the Hanafis; the Malikis, for their part, distinguish between what can be lost beyond the borrower and what cannot. If the lender asks the borrower to return the ariya and the latter refuses it to him: the Shafi'i and Hanbali school holds the liability, for it is liable from the origin in their view.

As for the Hanafis, who say it is a trust, they say: if the lender demands the ariya and the borrower refuses it to him, he is liable, and this is apparent. If he does not refuse it, but says to its owner: "leave it with me until tomorrow, then I will return it to you", the lender consents, and the thing is then lost: he is not liable, for he lent it a second time. This is how the question is put in Al-Asl.

In Fatawa Abi al-Layth the question is put in another form: if the borrower says: "yes, I will return it", then neglects the return until a month passes, and it is then stolen from him, two aspects are distinguished. The first: the borrower was unable to return it at the time of the demand: no liability. The second: he was able to return it at the time of the demand, and this carries three aspects: if the lender expressed displeasure, or expressed neither displeasure nor satisfaction, the liability is due in these two cases; if he expressed satisfaction, saying: "there is no harm in it", there is no liability, and the thing then becomes a new loan from the outset.

And if he did not demand the return, and the borrower did not return it until it was lost: if the ariya was unrestricted, he is not liable; if it was for a term and the term elapsed without return, he is liable. Likewise if it was for a term by the benefit, for example if he borrowed an axe to chop wood, chopped it and did not return it until it was lost: he is liable (Al-Mabsut, 11/148; Al-Muhit al-Burhani, 5/522-523; Majma' al-Damanat, 1/167; Hashiyat Ibn Abidin, 8/418).

Disagreement between lender and borrower: loan for use or hire?

The lender and the borrower may disagree about the ariya: is it a loan for use, a hire, an usurpation (ghasb), a deposit, or something else? Here is the exposition.

First case: they disagree, is it an ariya or a hire?

If, for instance, the mount is in a man's hands, and the owner says: "I hired it to you to go to such a place for such a fee", and the rider says: "you lent it to me, without fee", two possibilities arise.

First possibility: the mount remains.

If the mount remains intact and undiminished, the disagreement occurred either right after the contract, or after the lapse of a term for the like of which a fee would be due. If it occurred right after the contract: the rider's word with his oath is retained among the Shafi'is and the Hanbalis, for the origin is the absence of a contract of hire and the rider's innocence of it: he swears and returns the mount to its owner as a loan for use. Likewise if the owner claims that it was a loan and the rider says: "I hired it": the owner's word with his oath is retained, for the origin is the absence of a contract.

If the disagreement occurs after a term for the like of which a fee would be due has elapsed, and the owner claims the hire while the rider claims the loan: the Shafi'is, in a view related by al-'Umri and by Ibn Qudama from Abu Hanifa, retain the rider's word, for the owner agreed to permit him the benefit, and the origin is his innocence of the fee claimed: the word is therefore the rider's.

The Malikis, the Shafi'is in the school, and the Hanbalis retain the owner's word with his oath, for the two parties differ over how the benefits were transferred into the rider's ownership: the word is the owner's, as if they differed over a thing, the owner saying "I sold it to you" and the other "you gave it to me". For benefits follow the same regime as things in ownership and contract, and if the two differed over things, the word would be the owner's: so it is here. And because all agree that benefits do not pass to the rider except through the owner's transfer: his word is retained on the manner of the transfer, as for things; the owner therefore swears and earns the fee.

It is related in Al-Mudawwana al-Kubra: the question was asked: what do you think of a man who rides my mount to Palestine, and to whom I say: "I hired it out to you", and who answers: "you lent it to me"? The answer was: the word is the owner of the mount's, unless he is of the kind of men who do not hire out mounts, such as the man of noble standing, honored and wealthy: that is my opinion, and Allah knows best (Al-Mudawwana al-Kubra, 15/172).

They then differed over the amount of the fee: when it is said that the word is the owner's, the Shafi'is hold that if he swears he earns the fee; but they differ: does he earn the fee of the like or the named fee? Two views among the Shafi'is and the Hanbalis.

Second possibility: the mount has perished

One of the two views: he earns the fee of the like, for had they agreed on a contract of hire while differing over its amount, the named fee would not be due; since he does not earn the named one, it is more fitting that they did not agree on the amount of the hire. The second view: he earns the named fee that he claims, for it became due by the owner's word and his oath: what he swore upon is due as in the original case.

A third possibility exists among the Shafi'is: the owner earns the lesser of the two amounts, the named fee or the fee of the like. For if the named one is greater, he does not earn the excess, for that cannot be earned by his mere claim or his oath; and if the fee of the like is greater, he does not earn an excess over the named one, for he is the one claiming it.

Second possibility: the mount has perished. Al-'Umri, the Shafi'i (may Allah have mercy on him), says: if they differ after the loss of the mount, it is examined: if it perished after being handed back, before the lapse of a term for the like of which a fee would be due, and the owner claims a contract of hire (even were its contract valid, it would have dissolved by the death of the mount after the handing back), his claim to the fee is not valid, for the rider acknowledges owing him the value of the mount, and he does not claim it.

Shaykh Abu Hamid says: it will be said to the owner of the mount: he has acknowledged to you the value of the mount; if you wish, confirm him, saying that you lent it to him, and take its value from him; if you do not confirm him, you have nothing.

If the mount perished after the lapse of a term for the like of which a fee would be due, the owner claims the fee for the time elapsed and not the value, and the rider denies the fee and acknowledges the value. Our companions differed on this: some say: it is examined: if the fee and the value are equal, the judge takes it from the rider and pays it to the owner without an oath, for they agree on the owner of the mount's right to it, while differing over its cause.

If the value is greater than the fee, the judge obliges him to pay the measure of the fee, and it will be said to the owner: "you do not claim an excess over the measure of the fee; if you wish to earn it, acknowledge that you lent it and did not hire it out". If the fee is greater than the value, the judge obliges him to pay him the measure of the value, and the ruling on the excess follows the two ways as when the mount remains. Others say: his acknowledgment of the value falls away, for he acknowledged it to one who does not claim it; the owner claims the fee and the rider denies it: whose word prevails? On the two ways, as when the mount remains (Al-Bayan, 6/532-533; see Al-Muhadhdhab, 1/336; Rawdat al-Talibin, 3/632-633; Mughni al-Muhtaj, 3/283).

Ibn Qudama (may Allah have mercy on him) says: if they differ over that after the perishing of the beast, before the lapse of a term for the like of which a fee would be due, the word is the owner's, whether he claims the hire or the loan. For if he claims the hire, he acknowledges the rider's innocence of its liability, and his acknowledgment concerning himself is accepted; and if he claims the loan, he claims its value, and the word is his.

The rider says "you hired it to me" and the owner says "I lent it to you"

The continuation: the two differed over the manner of taking possession, and the origin, for what a man holds of another's property, is liability, by the words of the Prophet (peace and blessings of Allah be upon him):

"What the hand takes, it answers for until it returns it"Reported by al-Bukhari and Muslim

If the owner swears, he earns the value, and the amount belongs to the rider's word with his oath, for he denies the disputed excess, and the origin is its absence. If the disagreement occurs after the lapse of a term for the like of which a fee would be due and the beast perished, and the fee equals its value, or what the owner claims of the two is less than what the rider acknowledges: the word is the owner's, without an oath, whether he claims the hire or the loan, for an oath has no purpose over something acknowledged to him.

It is also possible that he takes it only with an oath, for he claims something that cannot be confirmed: the rider acknowledges to him what he claims, and he swears upon what he claims. If what the owner claims is greater, for instance if the value of the beast is greater than its fee: the owner claims that it was lent so that the value be due to him and denies the right to the fee, while the rider claims that it was hired; or if the fee is greater than its value: the owner claims to have hired it out so that the fee be due to him, and the rider claims that it was lent.

The word is the owner's in both situations, according to what we have established: when he swears, he earns what he swore upon. Al-Shafi'i's school in all of this follows what we have mentioned (Al-Mughni, 5/136-137; Kashshaf al-Qina', 4/92-93).

Second situation: they differ, the rider saying "you hired it to me" and the owner "I lent it to you".

If they differ, in the reverse of the previous situation, the rider saying "you hired it to me" and the owner "I lent it to you", and the mount remains: the word is the owner's for the denial of the hire. If he swears that he did not hire it out, he takes it back; if he backs off, the rider swears and earns the right to keep it: that is the school of the Shafi'is and the Hanbalis.

If a term entitling to a fee has elapsed, the rider acknowledges the fee, and the owner denies it: the owner does not earn it except by confirmation (tasdiq).

The Shafi'is say: if this disagreement occurs after the loss of the mount: if it perished after being handed back, before the lapse of a term for the like of which a fee would be due, the owner claims that it was lent so as to earn its value, and the rider denies the loan: the word is the owner's by unanimous view, for the disagreement here bears on the thing itself, not on the benefit; the rider took possession of the thing, and the origin, for what a man holds of another's property, is liability, by his words: "what the hand takes, it answers for until it returns it".

If the disagreement occurs after the term has elapsed, the rider acknowledges to the owner the fee, and the owner claims the value. If the value equals the fee, it has been said: it is paid to him without an oath, for the two agree that the owner is entitled to it.

It has been said: the fee is not established, for he does not claim it, but the owner swears upon the value; and likewise for the two views if the value is less: does the owner earn it without an oath? And if the value is greater, he does not earn the excess over the fee without swearing; and does he earn the measure of the fee without swearing? On the two views (Al-Bayan, 6/532-533; Rawdat al-Talibin, 3/633-634; Al-Mughni, 5/136; Kashshaf al-Qina', 4/93).

The disagreement over the return of the ariya

The jurists differed if the borrower says: "I returned it to you" and the lender: "you did not return it". The Shafi'is and the Hanbalis retain the lender's word, for the origin is non-return, like a debtor who claims to have discharged his debt (Al-Tanbih, p. 113; Kashshaf al-Qina', 4/93).

The Malikis say: if the lender and the borrower differ over the return, the lender saying "you did not return it" and the borrower "I returned it to you", an examination is required. If the ariya is of the kind that cannot be lost beyond the borrower and he did not receive it with witnesses: the word is the borrower's, affirming that he returned it, with his oath. If it is of the kind that can be lost beyond him: the word is the lender's, affirming that it was not returned, whether the borrower received it with witnesses or without; and likewise what cannot be lost beyond him if he received it with witnesses: the word is the lender's, affirming that it was not returned (Sharh Mayara, 2/312).

The return that absolves the borrower.

The jurists of the four schools agree: if the borrower returns the mount to the lender or to his agent to receive it, he is absolved of the liability by that. But they differ if he returns the lent thing to the lender's wife, to his children, or to the place he took it from, each school with its own detail.

The Hanafis, by way of istihsan, which is also the view of the Malikis, say: if he returns the mount with his servant or one of his dependents, or with the lender's male or female slave, or in person to the owner's house, he is not liable if it perishes. For the hand of one of his dependents, in returning, counts as his hand, as their hand counts as his in safekeeping; and the manifest custom is that the borrower returns the lent thing by the hand of one of his dependents: he therefore relies on them, and that is permitted from the owner's side by indication.

The rationale of the istihsan: the owner keeps the mount only through its groom; if the borrower hands it to the owner, he in truth hands it to the groom; likewise if he returns it to the groom. And the manifest custom is that the owner commands his groom to hand it to the borrower and to take it back from him when the need is over: handing it to him is therefore permitted by indication. This applies to lent things other than precious ones: for the latter, delivery to the owner is indispensable, otherwise he is not absolved.

The analogical reasoning for all cases would have it that he is not absolved as long as the thing has not reached its owner, like the depositary who returns the deposit without being absolved of the liability as long as the deposit has not reached the owner's hand. The difference, according to the answer of the istihsan, lies in custom: it is manifest among people that the mount's groom is the one who hands it to the borrower at the time of the loan, and the one who takes it back from him at the end of the need; no such custom exists for the deposit, for the owner of the deposit receives it himself, and he deposited it only because he was not content to have it in the hands of his dependents (Al-Mabsut, 11/139-140; Al-Muhit al-Burhani, 5/526; Tabyin al-Haqa'iq, 5/89-90; Al-Bahr al-Ra'iq, 7/283; Majma' al-Anhar, 3/486; Majma' al-Damanat, 1/167-168; Hashiyat Ibn Abidin, 8/402; Al-Banani, margin of Al-Zarqani, 6/131).

The Shafi'is and the Hanbalis hold that he is not absolved by that, which is the analogical reasoning among the Hanafis, as mentioned. The Shafi'is say: the required and absolving return consists in delivering the thing to the owner or to his agent for that; if he returns the mount to the stable, or the garment to the house he took it from, he is not absolved of the liability.

If he returns the mount to the lender's house without finding him and delivers it to his wife or his child: if the receiver hands it to the claimant and it is lost, the lender has the choice: either the borrower is liable, or he fines the wife or the child. If he fines the borrower, it goes back upon them; if he fines them, it does not go back upon the borrower (Rawdat al-Talibin, 3/634).

The Hanbalis say: if the borrower returns the mount to its owner's stable or to his boy, who attends to his service and his affairs, slave or free, he is not absolved by that; or if he returns it to the place he took it from or to the owner's property without delivering it to anyone, he is not absolved; or if he returns the ariya to dependents who have no custom of receiving his property, he is not absolved of the liability, for he returned it neither to its owner nor to his agent therein: he is like a stranger.

But if he returns the mount or another lent thing to one whose custom it is for that to pass through his hands, such as a groom to whom he returns the mount, or a wife managing his property, or a general agent for the collection of his dues, the borrower is absolved of the liability, for that is permitted by custom, like the case where the owner had explicitly permitted it (Al-Sharh al-Kabir, 5/370; Al-Mubdi', 5/147; Al-Insaf, 6/116; Kashshaf al-Qina', 4/91).

Ibn Qudama (may Allah have mercy on him) says: if the thing remains, the borrower must return it to the lender or to his agent to receive it, and he is thereby absolved of its liability. If he returns it to the place he took it from or to the owner's property, he is not absolved of its liability; al-Shafi'i said this. Abu Hanifa said: he is absolved, for it becomes like a thing received: returns, by custom, go to the owners' properties, and it is therefore permitted by way of custom.

Our argument: he returned it neither to its owner nor to his agent therein: he is therefore not absolved, as if he gave it to a stranger. What is mentioned collapses in the case of the thief, if the thief returns the stolen thing to its place of safekeeping (hirz); and the custom mentioned is not known. If he returns it to one whose custom it is for that to pass through his hands, such as his wife managing his property, or the mount to its groom: the school's analogy is that he is absolved, said al-Qadi, for Ahmad said, concerning the deposit, that if the depositor delivers it to his wife, he is not liable for it; and because that is permitted by custom, like the case where he would have explicitly permitted it (Al-Mughni, 5/130).