Islamic Fiqh > Endowments (waqf) and property > Wadi'a: the deposit of trust > The owner permits the use of the deposit (case 2)
Contents
Updated on 25 September 2026 at 6:57 PM
This part belongs to the full section: All sections of this part.
This part of the chapter on the wadi'a (deposit) gathers the rules governing what the depositary may and may not do with the property entrusted to him: use authorized by the owner, spending and borrowing from the deposit, trading with it, moving it from one place to another, and traveling with it. The positions of the four schools (Hanafi, Maliki, Shafi'i and Hanbali) are set out with their arguments and classical references. The guiding principle remains constant: the deposit is a trust (amana), and the depositary incurs liability (daman) only through transgression or negligence.
There is no liability upon the depositary for a mere intention of transgression in the deposit: a word or an act is required, for he has not betrayed by word or act and is therefore not liable, like one who did not even form an intention. But if he takes the property out intending to use it and does not use it, he is liable, for taking it out is already a transgression, similar to the one he would have committed by using it (al-Mughni 6/308; Kashf al-Qina' 4/214; Sharh Muntaha al-Iradat 4/243, 245; Matalib Uli al-Nuha 4/160; Manar al-Sabil 2/280).
Case 2: the owner permits him to use the deposit. The people of knowledge are unanimous: when the depositor permits the depositary to use the deposit, its use is permitted for him. Imam Ibn al-Mundir (may Allah have mercy on him) said: "They agreed on the permissibility of its use with the authorization of its owner" (al-Ijma' 566).
The fuqaha, however, differ on what follows: does the deposit become corrupt and turn into a loan for use (ariyya), or does it remain a deposit without liability if the property is damaged by an authorized use? The Shafi'is and the Hanbalis hold that it becomes corrupt and turns into a loan for use: if the property is damaged before the use, the depositary is not liable; if it is damaged after, he is liable, for the loan for use is, in their view, subject to liability.
The Shafi'is say: when the depositor permits the depositary to use the deposit and he uses it, it is a corrupt (fasid) deposit, because a condition contrary to what the contract requires has been introduced into it. If an animal is deposited with permission to ride it, or a garment with permission to wear it, it is a corrupt deposit; if the depositary rides or wears it, the property becomes a corrupt loan for use. If it is damaged before the riding or the use, he is not liable, as in the valid deposit, by attaching the corrupt deposit to the valid one regarding liability and its absence; if it is damaged after, he is liable, as in the valid loan for use, by attaching the corrupt loan to the valid one. The cause of the corruption of the loan in this case is that the depositor did not make the loan an objective in itself, but a condition set in exchange for safekeeping (Mughni al-Muhtaj 4/135; Tuhfat al-Muhtaj 8/313; Nihayat al-Muhtaj 6/132).
The Hanbalis say: if the owner permits the one who received the property to dispose of it, that is, to use it, and he does so according to the permission, the property becomes a loan for use subject to liability, like a pledge (rahn) whose owner permits the pledgee to use it. If he does not use it, the property remains a trust (amana), for the benefit was not intended and did not occur, and the intended aspect then prevails (Kashf al-Qina' 4/203).
The Hanafis, for their part, hold that the depositary permitted to use the deposit may use it without the property turning into a loan for use, and without liability if it is damaged without transgression or negligence on his part: use does not contradict the deposit, and that is why the command to keep the property while using it is valid from the outset (al-Mabsut 11/115; al-'Inaya 12/218; Majma' al-Anhar 3/473).
The Majallat al-Ahkam al-'Adliyya and its commentary Durrar al-Hukkam state: "Just as the depositary may use the deposit with its owner's permission, he may also lease it, lend it for use and pledge it. But if he leases it, lends it or pledges it, without its owner's permission, to another, and the deposit perishes in the hands of the lessee, the borrower for use or the pledgee, or is lost or its value decreases, the depositary is liable." Authorized use therefore falls under borrowing for use (Durrar al-Hukkam 2/267), and the property remains in any case free of liability, whether deposit or loan for use: both are a trust in the Hanafi view, and liability arises only through transgression or negligence. The Malikis, for their part, have no explicit text on this issue.
On spending the deposit (infan), the fuqaha do not differ: if the deposit consists of money and the depositary spends it, he is liable, as most fuqaha established explicitly. Article 787 of the Majalla states: "If the depositary spends the money of the deposit on his own affairs or consumes it, he is liable".
There is an exception: if he spends not for himself but for a benefit belonging to the deposit's owner, as when the latter is absent and has a wife or dependents he must support, and the judge assigns them a maintenance from the deposited money: if the depositary disburses this maintenance by the judge's order, no liability falls upon him; if he disburses it on his own initiative, without the judge's order, he is liable. Article 799 of the Majalla specifies: "If the owner of the deposit is absent and the judge assigns, at his request, a maintenance from the deposited dirhams for those whom the deposit's owner must support, and the depositary disburses that maintenance from the deposited dirhams, no liability is required; but if he disburses it without the judge's order, he is liable" (see Durrar al-Hukkam 2/280; Murshid al-Hayran 3/1224).
The Malikis say: it is disliked (makruh) for the solvent depositary to borrow from the deposit he holds, when it is money or fungible goods; if he is insolvent, it is forbidden for him to borrow from the deposit absolutely, whether the property is fungible or non-fungible (al-Sharh al-Kabir with the Hachiya of ad-Dassouqi 5/123; Sharh Mukhtasar Khalil 6/110, 111; Tahrir al-Mukhtasar 4/345). The texts of the Shafi'is and the Hanbalis on this issue come in the following question.
If the depositary holds a deposit of money or fungible goods and takes part of it to spend it, the question divides into two cases. First case: he takes all or part intending to spend it, does not spend it, returns it to its place, and then the property is lost or damaged. The fuqaha differ: is the depositary liable by the mere taking?
The Hanafis and the Malikis hold that the depositary who takes part of the deposit to spend it and then returns it a second time to its place incurs no liability.
The Hanafis say: if he takes part of the deposit's dirhams intending to spend them, does not spend them, then returns them to their place, and they are lost days later, no liability falls upon him, for the taking itself is not a destruction (itlaf), and the intention of destruction is not a destruction, so it entails no liability. The basis is what is reported from the Messenger of Allah (peace and blessings of Allah be upon him):
"Allah, blessed and exalted is He, noble is His order, has pardoned my community for what their souls whisper to themselves, so long as they do not speak of it or act upon it."Reported by al-Bukhari (6287)
The apparent meaning of the hadith implies that what the soul whispers to itself is pardoned in general, except what is specified by evidence.
Al-Kasani says (Badai' as-Sana'i' 6/213): on this basis, if a sealed bag is deposited with him and he unties it, or a locked box and he opens the lock taking nothing from it, and then the property is lost or the depositor dies: if the deposit still exists as a specific object, it is returned to its owner, for it is the very substance of his property, and "whoever finds the substance of his property is most entitled to take it back", according to the words of the Messenger of Allah (peace and blessings be upon him). If the property cannot be identified as a specific object, it becomes a debt in the depositary's estate, shared among the creditors, for by dying while ignorant of the state of the deposit, he destroyed it in meaning: he prevented the property from being beneficial to its owner through that ignorance, which is the definition of destruction (see also al-Hidaya 3/216; al-'Inaya 12/260; al-Jawhara an-Nayyira 4/156; al-Lubab 1/646; Majma' al-Anhar 3/473).
The Malikis say: if he takes money from the deposit without spending it, then returns it to its place, and it is lost or stolen together with the rest, no liability falls upon him; the same applies to all fungibles, whether the taking took the form of a loan or not. The reason is that liability attaches to spending and taking: when the latter ceases, the liability ceases with its cause. The wives of the Companions, moreover, used to borrow the property of orphans and lend it out.
The depositary's statement, supported by his oath, that he returned the property to its place, is accepted when the owner disputes it, unless the owner had authorized him to borrow it, saying: "I permit you to borrow it or to borrow from it", or: "If you need, take". He is then absolved only by returning to the owner what he took, for his borrowing is in that case a borrowing from the owner: the property passes from his keeping to his responsibility (dhimma) and becomes like other debts (al-Ichraf 'ala noukat masa'il al-khilaf 3/110, 111, no. 968; at-Taj wa-l-Iklil 4/263, 264; Sharh Mukhtasar Khalil 6/110, 111; al-Sharh al-Kabir with the Hachiya of ad-Dassouqi 5/124, 125; Tahrir al-Mukhtasar 4/346, 347; Bidayat al-Mujtahid 2/234).
The Shafi'is and the Hanbalis hold that if the depositary takes out the money to spend it, he is liable even if he does not actually spend it; even if he was interrupted and returned the property to its place, and it is then damaged, he is not released from liability because of his transgression, and he must, according to the Hanbalis, return it immediately.
The Shafi'is say: if he takes the dirhams from their place to spend them, not thinking they belong to him, he is liable even if he does not spend them, for the act is coupled with the intention of transgression; if the amount taken is damaged in his hand, he is liable for it. If he takes it thinking it is his property, he is liable only if he benefits from it. And if he takes part of the dirhams, such as one dirham, he is liable only for that one so long as he does not break a seal or smash a lock: even if he returns it, the liability does not disappear, and even if all of it is damaged, he guarantees the dirham or what he took, without being liable for the rest.
If he forms the intention of taking the deposit to destroy it after taking possession of it, without doing so, he is not liable according to the explicit and most correct view, for he produced neither an act nor a transgressive extension of the hand, but he is at fault. If he does it, he is liable, as if he had intended it from the start (al-Najm al-Wahhaj 6/367, 368; Kanz al-Raghibin 3/456, 457; Mughni al-Muhtaj 4/146, 147; Tuhfat al-Muhtaj 8/345, 346; Nihayat al-Muhtaj 6/148, 149; al-Dibaj 3/119).
The Hanbalis say: if the depositary transgresses in the deposit, taking out the money to spend it, or taking it out intending betrayal within the deposit, or taking it out out of desire to look at it, then returns it to its protected place, the character of trust is broken and he is liable for his disposition over another's property without authorization; he must return it immediately, for it is a pure trust that ceased through the transgression, and it does not become a trust again without a new contract, as if he returned it to its owner and the owner then returned it to him: that would then be a second deposit.
There is therefore no liability upon the depositary for a mere intention of transgression: a word or an act is required, for he has not betrayed by word or act, and he is not liable, like one who formed no intention. If he takes the property out intending to spend it and does not spend it, he is liable, for taking it out is a transgression similar to the one he would have committed by spending it (al-Mughni 6/308; Kashf al-Qina' 4/214; Sharh Muntaha al-Iradat 4/243, 245; Matalib Uli al-Nuha 4/160; Manar al-Sabil 2/280).
Imam Ibn Qudama (may Allah have mercy on him) said: whoever is entrusted with property and takes part of it is liable for what he took; if he returns it, itself or its equivalent, the liability does not cease. This is what al-Shafi'i said. Malik said: no liability upon him if he returns it, itself or its equivalent. The people of reasoned opinion (ahl al-ra'y) said: if he does not spend what he took and returns it, he is not liable; if he spends it and then returns it, itself or its equivalent, he is liable.
And this is our argument (the Hanbalis'): liability attached to his personal responsibility (dhimma) from the taking, as proven by the fact that if the property were damaged in his hand before its return, he would be liable for it; it therefore ceases only by returning it to its owner, like usurped property. As for the rest of the deposit, it must be examined: if it was in a sealed or tied bag and the seal is broken or the knot untied, he is liable, whether something was taken from it or not, for he violated the protection by a transgressive act. If he tears the bag above the knot, he is liable only for what he tore, for he did not violate the protection (of the contents). If there is no bag, or the bag is untied, or they are garments of which he takes one piece and returns it in kind, he is not liable for the rest, for he did not transgress against anything else. If he returns a substitute that is distinguishable, he is not liable for the rest; if it is not distinguishable, the apparent meaning of al-Kharqi's words is that he is not liable for the rest, for the transgression was specific to what he took, and the liability is therefore specific to it.
As for mixing the returned property with other property, it does not entail liability, for the depositary must return it together with them and has thus not deprived himself of the possibility of returning them, unlike the case where he mixed the deposit with other property. If the owner had permitted him to take from the deposit without ordering him to return a substitute, and he takes and then returns a substitute for what he took, it is like returning the substitute of what he was not permitted to take.
The qadi said: he is liable for all of it, and this is al-Shafi'i's view, for he mixed the deposit with what cannot be distinguished from it and is thus liable for all of it, as if he had mixed it with something other than the substitute; but we have established a difference between the substitute and what is not, so the analogy does not hold.
Abu Hanifa said: if he breaks the seal of the bag, liability for the deposit does not fall upon him, for he did not transgress against anything else (than what he took). For us, he violated the property's protection and is therefore liable if it is damaged, as if the property had been deposited with him in a locked box and he opened it and left it open; and we do not accept that he did not transgress beyond the seal (al-Mughni 6/310, 311).
Second case: he takes the property or part of it, spends it, returns a substitute to its place, and then all of it is damaged or stolen. The fuqaha differ: is the depositary who takes part of the deposit's dirhams and spends it liable for the whole or only for the amount taken? The question likewise comprises two cases.
First case: he returns the equivalent, and then it is lost or stolen. The fuqaha differ: if the depositary takes part of the deposit's dirhams, spends them, then returns their equivalent to its place, and all of it is lost or stolen together with the rest, is he liable for everything or only for what he took?
The Malikis hold that there is no liability: if he takes money from the deposit, spends it, returns it to its place, and it is lost or stolen together with the rest, no liability falls upon him; the same applies to all fungibles, whether the taking took the form of a loan or not. The reason is that liability attaches to spending and taking: when the latter ceases, the liability ceases with its cause. The wives of the Companions used to borrow the property of orphans and lend it out. The depositary's statement, supported by his oath, that he returned the property to its place, is accepted if the owner disputes it, unless the owner had authorized him to borrow it, saying: "I permit you to borrow it or to borrow from it", or: "If you need, take": he is then absolved only by returning to the owner what he took, for his borrowing is then a borrowing from the owner: the property passes from his keeping to his responsibility and becomes like other debts (al-Ichraf 'ala noukat masa'il al-khilaf 3/110, 111, no. 968; at-Taj wa-l-Iklil 4/263, 264; Sharh Mukhtasar Khalil 6/110, 111; al-Sharh al-Kabir with the Hachiya of ad-Dassouqi 5/124, 125; Tahrir al-Mukhtasar 4/346, 347; Bidayat al-Mujtahid 2/234).
Al-Mudawwana reports, in the chapter on "one who is entrusted with dirhams or wheat, spends them, and then the property is damaged, whether he returned the equivalent of what he spent or not", this dialogue: "I deposited dirhams and wheat with a man; he spent part of the dirhams or ate part of the wheat: is he liable for the whole of the wheat and the dirhams in Malik's view?" Answer: "He is liable only for what he ate or spent, not for the rest." "If he returns the equivalent of the wheat he ate and the equivalent of the dirhams he spent into the deposit, does the liability fall away?" Answer: "Malik said: yes, the liability falls away for the dirhams, and the wheat, in my view, has the same status." "Is his statement that he returned it into the deposit accepted?" Answer: "Yes, thus Malik said." "Why does Malik accept this statement?" Answer: "Do you not see that if he had said that he took nothing from it, little or much, or that it had perished, his statement would be accepted?" "If he borrowed the whole of the deposit and then returns its equivalent to its place, is he absolved from liability in Malik's view?" Answer: "Yes, thus Malik told me regarding the dirhams; all deposits are of this kind: if he returns the equivalent, provided he is able to produce the equivalent, as by measure or weight, in my view" (al-Mudawwana al-Kubra 15/147).
The majority of the fuqaha, the Hanafis, the Shafi'is and the Hanbalis in one view, hold that if the depositary spends part of the deposit and then returns the equivalent of what he spent, mixing it with the rest so that it cannot be distinguished, and all of it is then damaged, he is liable for all of it: he was made a destroyer of the deposit by spending part of it and mixing his own property with it, for the equivalent he paid is his own property, and mixing amounts to consumption (istihlak). If he returns it and it remains distinguishable from the rest of the dirhams, no liability falls upon him except for what he took, with the following distinction.
The Hanafis say: if he spends part of the deposit and then returns the equivalent, mixing it with the rest, and all of it is damaged, he is liable for the whole of the deposit, for he was made a destroyer of the property by spending part of it and mixing the rest with his own property (al-Hidaya 3/216; al-'Inaya 12/260; al-Jawhara an-Nayyira 4/156; al-Lubab 1/646; Majma' al-Anhar 3/473).
The Shafi'is say: if he takes dirhams from the deposit and returns a substitute for them, and the substitute cannot be distinguished from the rest, he is liable for all of it, for having mixed the deposit with his own property; if it is distinguishable, the rest is not guaranteed against him; if it is distinguishable from part of them, by a feature differentiating them, such as black or white color or the coin's stamp, he guarantees only the part that cannot be distinguished. If he returns it in kind, he is not liable for the rest of the dirhams, even if all of it is damaged or he himself can no longer be distinguished from it, for that mixing existed before the taking; if half of it is damaged, he guarantees half, that is, half of the dirhams only. All of this applies if the property was neither under seal nor under lock; if he breaks the seal or the lock, he is liable for all of it, the violation of the seal entailing liability (Asna al-Matalib 3/80; Mughni al-Muhtaj 4/147).
The Kitab al-Umm of al-Shafi'i (may Allah have mercy on him) says: "When a man entrusts dinars or dirhams to a man, and the latter takes from them a dinar or a dirham and then puts a substitute in its place: if what he put back can be distinguished from his dinars and dirhams, and the whole of the dinars is lost, he is liable only for what he borrowed; if what was put in place of what he took cannot be distinguished or recognized, and the dinars are damaged, he guarantees all of them" (al-Umm 4/137).
The Hanbalis, in one view, hold that if he takes dirhams from the deposit, spends them and then returns them, and the whole of the deposit is lost or stolen, no liability falls upon him except for the amount he took, for he is a transgressor by his taking and is therefore liable only for that.
The commentary of al-Zarkashi takes up the question, citing al-Kharqi: "Whoever is entrusted with property, takes part of it and then returns it, itself or its equivalent, and all of it is lost, owes the value of what he took." The commentary specifies: if property is entrusted to someone, he takes part of it and returns it, and all of it is lost or damaged, he owes only the value of what he took, for that is the measure of his transgression. This is the famous of the two narrations, to the point that the qadi, in his commentary, as well as Abu al-Barakat and Abu Muhammad in al-Kafi and al-Mughni, mentioned no other. The second narration: he is liable for all of it, reported by the author of al-Talkhis and others, for it is a deposit in which he transgressed and he is therefore liable for it, as if he had taken all of it (Sharh al-Zarkashi 2/300-302). The qadi is cited there again: he is liable for all of it, al-Shafi'i's view, for he mixed the deposit with what cannot be distinguished from it; and a difference has already been established between the substitute and what is not, so the analogy does not hold.
If the depositary did not return what he took but a substitute, the companions have four ways:
Know that the condition of this question, with Abu Muhammad and Abu al-Barakat, is that the dirhams and the like be neither sealed nor tied. If they are sealed or tied and he unties the knot or breaks the seal, he is liable for all of it without dispute, for having violated the protection: this is the correct view according to the qadi, who likens it to one who opens a cage and lets the bird fly away. No explicit text from Ahmad establishes this, and Muhanna transmitted from Ahmad what implies that he is liable only for what he took: in the case of a man who deposits ten dinars in a purse, if the depositary takes one dinar, spends it and then puts another in its place, and the ten are lost, he guarantees the dinar and not the nine. Al-Talkhis also mentions that al-Baghawi reported from Ahmad what establishes it, and it follows: if he tears the purse above the knot, he guarantees only the compensation for the tear; if he tears it below the knot, he guarantees everything, according to the famous view of the companions.
The strength of al-Kharqi's words implies that a mere intention of transgression entails no liability, and this is the firmly held madhhab, accountability being lifted as long as he neither speaks nor acts. That is why, if he takes it to the market intending to spend it and then returns it, he is liable according to the sounder of the two views, because of the act performed. The qadi said: it has been said that he is liable by the mere intention, because it is coupled with holding the property, which is an act; and this view may lead to saying that the fleeting thought does not engage one, while firm resolve ('azm) does, according to one of the two views. And Allah knows best.
Imam Ibn Hubayra (may Allah have mercy on him) said: they differed in the case where the depositary takes something out of the deposit intending to damage it and spends it, then his faith returns to him and he restores its equivalent, and the deposit is then damaged.
Abu Hanifa said: if he returns the property in kind, he is not liable; if he returns its equivalent while it can be distinguished from the rest, and the whole of the deposit is damaged, he guarantees the amount of what he had taken; if what he returned cannot be distinguished from the rest, he guarantees all of it.
Malik said: if he returns the property in kind or its equivalent, when it has an equivalent, he is not liable; and it is reported from him that he is liable. Al-Shafi'i said: he is liable in every case. Ahmad said, according to what al-Kharqi reported: he guarantees the amount of what he took, even if he returns it, itself or its equivalent (al-Ifsah 2/8).
Second case: he steals the rest before returning what he took or its equivalent. The fuqaha differ: if the depositary takes part of the dirhams deposited with him, and the rest is stolen before he has returned what he took or its equivalent, is he liable for the whole of the deposit (what he took and what was stolen) or only for what was stolen?
The majority of the fuqaha, the Hanafis, the Malikis, the Shafi'is and the Hanbalis according to the madhhab, hold that if the depositary takes part of the deposit's dirhams, spends them, and the rest is damaged or stolen before he has returned what he took, he is liable for what he took only, with no liability for the rest. The reason is that liability follows the measure of the betrayal, and he betrayed in part, not in the rest; in the rest he preserves the ownership, and what he spent does not taint the rest: it is as if two deposits had been entrusted to him and he spent one, without being liable for the other. His statement about the spending, supported by his oath, is accepted (al-Hidaya 3/216; al-'Inaya 12/260; al-Jawhara an-Nayyira 4/156; al-Lubab 1/646; Majma' al-Anhar 3/473; at-Taj wa-l-Iklil 4/263, 264; Sharh Mukhtasar Khalil 6/110, 111; al-Sharh al-Kabir with the Hachiya of ad-Dassouqi 5/124, 125; Tahrir al-Mukhtasar 4/346, 347; al-Najm al-Wahhaj 6/367, 368; Kanz al-Raghibin 3/456, 457; Mughni al-Muhtaj 4/146, 147; Tuhfat al-Muhtaj 8/345, 346; Nihayat al-Muhtaj 6/148, 149; al-Dibaj 3/119; al-Mughni 6/308; Kashf al-Qina' 4/214; Sharh Muntaha al-Iradat 4/243, 245; Matalib Uli al-Nuha 4/160; Manar al-Sabil 2/280).
The Hanbalis, in one narration, hold that if property is entrusted to someone, he takes part of it and then returns it, and all of it is lost or damaged, liability for all of it falls upon him: it is a deposit in which he transgressed, and he is therefore liable for it, as if he had taken all of it.
Al-Zarkashi reports in his commentary that al-Kharqi said: "Whoever is entrusted with property, takes part of it and returns it, itself or its equivalent, and all of it is lost, owes the value of what he took." The commentary specifies that this is the famous of the two narrations, to the point that the qadi, in his commentary, as well as Abu al-Barakat and Abu Muhammad in al-Kafi and al-Mughni, mentioned no other.