Islamic Fiqh > Endowments (waqf) and property > Wadi'a: the deposit of trust > Trading with the deposit
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Updated on 25 September 2026 at 6:57 PM
This part belongs to the full section: All sections of this part.
If the depositary is liable for the property even though he returned what he took, he is, with all the more reason, liable for all of it if he does not return what he took and the rest of the deposit is damaged.
The fuqaha differ concerning the depositary who holds a deposit of money, takes it and trades with it: is this permitted for him or not? They agree first that if he takes the deposit's money and trades with it, he is liable, for he transgresses in property without its owner's authorization.
The majority of the fuqaha, the Hanafis, the Shafi'is and the Hanbalis, hold that it is not permitted for him to take the deposit's money and trade with it, for it is a trust in his hands (al-Hawi al-Kabir 5/361).
The Malikis have two views. The first: trading with the deposit without its owner's permission is forbidden absolutely. The second: trading with the deposit without permission is disliked when the depositary is solvent and the property is fungible, such as money; if the depositary is insolvent, or the property is non-fungible, trading without the owner's permission is forbidden, whether the depositary is solvent or not.
According to both views, the profit from the trade after the sale belongs to the depositary, for he is liable for the property until he returns it to its owner; and when he returns the capital, the profit becomes lawful for him and he need not give it as charity.
Al-Hattab said: the text of al-Mudawwana is: "One who is entrusted with property and trades with it: the profit belongs to him, and he need not give it as charity; trading with the deposit is disliked".
Abu al-Hasan al-Saghir said: the same applies to the executor (wasi) who trades with the property of orphans: the profit belongs to him, unlike the muqarada partner and the muqarid.
Abd al-Haqq said: the difference is that property is given to the muqarada partner and the muqarid in quest of gain, so they may not appropriate that gain without the owner, whereas the depositary did not enter in quest of gain: he intended only safekeeping, and is therefore entitled to the principal of the property, not the profit; this is sound according to an-Nukat of the shaykh, and the executor too is charged only with keeping the orphan's property.
Al-Mudawwana also says: one with whom merchandise is placed in muqarada, who buys with it and trades in it: if it is damaged, he is liable, and if he makes a profit, it belongs to the owner, unlike the deposit, for the muqarada partner sought the profit and cannot cut it off from the owner to appropriate it; if the property is damaged, he is liable for his transgression, whereas the depositor intended only safekeeping and thus has no share of the profit.
The beginning of the book of qirad in al-Muntaqa carries this text: our companions do not differ over the fact that when the muqarada partner buys for himself with the capital, the owner may choose between taking what he bought for him or holding him liable for the capital, for the property was given to him only as an agent over his merchandise and to buy what he was ordered, and he is therefore most entitled to what he bought. This holds if he obtained the order before selling what he bought; if what he bought escapes him, its profit belongs to the owner of the capital, and its loss is borne by the muqarada partner (Mawahib al-Jalil 7/229, 230; ad-Dhakhira 9/178; at-Taj wa-l-Iklil 4/262, 263; Sharh Mukhtasar Khalil 6/111; al-Sharh al-Kabir with the Hachiya of ad-Dassouqi 5/123, 124; Tahrir al-Mukhtasar 4/346; Hachiyat as-Sawi on al-Sharh al-Saghir 8/154).
The fuqaha differed over the profit from the trade: is it lawful for the depositary? Do the two share it? Must it be given as charity? Or does the profit belong to the bayt al-mal? Six views emerge.
Imam Ibn Battal (may Allah have mercy on him) said, regarding the first view: the soundest of these views is that of the one who holds that the profit belongs to the usurper and the transgressor. The proof in his favor: the property has entered his responsibility like his own property, and people have no objective in the very substances of dinars and dirhams, but in the disposition they make of them; if he usurped property from a man and then wished to return its equivalent while the original was still in his hand, that would be permitted to him on the principle of Malik's view; if he is therefore permitted to return something other than the property itself, the profit belongs to him. The hadith of the chapter is the proof:
A man hired a laborer and then said to him: "All that you see among the camels, cattle, sheep and slaves comes from your wage." The laborer replied: "Are you mocking me?"Reported by al-Bukhari, in the chapter: one who hires a laborer who neglects his wage, then the master works with it and the capital increases, or one who works with another's property and gains an advantage
This shows that the Sunna, among them, was that the profit belongs to the transgressing worker, and that there is no right for the owner of the capital; the Prophet (peace and blessings of Allah be upon him) reported it, confirmed it and did not abrogate it.
It has also been reported from Umar ibn al-Khattab what indicates that the profit belongs to the transgressor by reason of liability. Malik reported in al-Muwatta:
Abu Musa lent to Umar's sons, Abdallah and Ubaydallah, money from the bayt al-mal for a profit-sharing trade; they bought goods with it, carried them to Medina and made a profit. Umar said: "Return the capital and its profit." Ubaydallah said: "This does not befit you: had the property perished or diminished, we would have been liable." A man said: "Make it a qirad, O commander of the believers." He said: yes. He then took from them half of the profit.Reported by Malik in al-Muwatta
Umar thus did not disapprove of his son's statement that they would have been liable had the property perished: the profit therefore became lawful for him, and none of the Companions present disapproved of it (Sharh Sahih al-Bukhari by Ibn Battal 6/397, 398; see Mukhtasar Ikhtilaf al-'Ulama' 3/176; Badai' as-Sana'i' 6/14; al-Hidaya 4/13; al-'Inaya 13/355; Sharh Fath al-Qadir 6/475; Majma' al-Anhar 4/83; Mawahib al-Jalil 7/229, 230; ad-Dhakhira 9/178; at-Taj wa-l-Iklil 4/262, 263; Sharh Mukhtasar Khalil 6/111; al-Sharh al-Kabir with the Hachiya of ad-Dassouqi 5/123, 124; Bidayat al-Mujtahid 2/234; Tahrir al-Mukhtasar 4/346; Hachiyat as-Sawi 8/154; al-Ichraf 6/336, 337; Majmu' al-Fatawa 30/130; Mukhtasar al-Fatawa al-Misriyya 379).
Shaykh al-Islam Ibn Taymiyya (may Allah have mercy on him), after reporting the story of Umar (may Allah be pleased with him) with his sons, said: Umar acted upon this, and it is the best of the views disputed by the fuqaha in the question of trading with the deposit and with other people's property; there are four views in Ahmad's madhhab and among others. Does the profit belong to the bayt al-mal, as being the money of the bayt al-mal? Or does the profit belong to the worker, because ownership of the substances was acquired by purchase into his responsibility, and both give it as charity because it is impure? Or do they share it as in the muqarada? This fourth view is the one Umar applied (Majmu' al-Fatawa 30/130; Mukhtasar al-Fatawa al-Misriyya 379).
Imam Ibn Rushd (may Allah have mercy on him) said: the scholars differed over a famous question in this chapter: one entrusted with property transgresses in the deposit, trades with it and makes a profit: is that profit lawful for him or not? Malik, al-Layth, Abu Yusuf and a group say: if he returns the capital, the profit is lawful for him, even if he is a usurper of the property, all the more so if he is a mere depositary. Abu Hanifa, Zufar and Muhammad ibn al-Hasan say: he returns the principal and gives the profit as charity. Others say: the principal and the profit belong to the owner of the deposit. Others say: he may choose between the principal and the profit. Others say: the sale concluded in that trade is corrupt, and these are the ones who oblige to give the profit as charity after death. Whoever considers the disposition says the profit belongs to the one who disposes, and whoever considers the principal says it belongs to the owner of the property. That is why, when Umar (may Allah be pleased with him) ordered his sons Abdallah and Ubaydallah to dispose of the capital that Abu Musa al-Ash'ari had lent them from the bayt al-mal, and they traded with it and made a profit, he was told: "make it a qirad", and he accepted, for it has been reported that a share belongs to the worker and a share to the owner of the property, and that this is equitable (Bidayat al-Mujtahid 2/234).
Sixth view: that of the Shafi'is: if the usurper trades with the usurped property, or with another's property in his hand, whether a deposit, a pledge, property lawfully at his disposal (mubah) or a loan for use, without the owner's permission: if he sells or buys with the property in kind, the transaction is void and he does not own the compensation ('iwad); if he has consumed the property or it is lost, he guarantees the equivalent or the value; the profit obtained is returned, if possible, to the owner of each contract concerned, otherwise it is lost property.
And if he embraces Islam, or buys on credit and then delivers the usurped property, the contract is valid and the delivery corrupt; his responsibility is not released from the price, and the usurper owns what he took together with its profits (Rawdat al-Talibin 3/685; Mughni al-Muhtaj 3/312; Nihayat al-Muhtaj 5/209; Hachiyat al-Ramli on Asna al-Matalib 2/357; Bahr al-Madhhab 7/105).
Imam Ibn al-Mundir (may Allah have mercy on him) said: they differed concerning the depositary or the muqarada partner who transgress by using the deposit or the merchandise without their owners' permission. One group said: each of the two is liable as soon as he transgresses in the property, and the profit belongs to the owner: this is the view of Ibn Umar, Nafi' his freedman and Abu Qilaba, and Ahmad and Ishaq held it. One group said: the whole of the profit belongs to the worker: we reported it from Shurayh, al-Hasan al-Basri, Ata' ibn Abi Rabah, al-Sha'bi, Yahya al-Ansari and Rabi'a; it is the view of Malik and al-Thawri. Al-Thawri said: "I prefer that he refrain from it out of piety".
Al-Awza'i said likewise: "it is safer that he give it as charity". One group said: "the profit, such as it is, should be given as charity, which is dearer to me": this is the view of al-Sha'bi, reported also from Mujahid; al-Nakha'i said it concerning the transgressing muqarada partner, Hammad said it, as did the people of reasoned opinion, who said concerning a deposit worked with: the profit belongs to the worker, who gives it as charity and must not consume it.
Abu Bakr (Ibn al-Mundir's own kunya) said: the soundest of all this is the following: when a man transgresses in a deposit he holds, or usurps property and buys with the substance of that property a slave girl for a hundred dinars, saying to the seller: "I bought this slave girl from you with these hundred dinars", the sale is void, for he bought a slave girl with property that does not belong to him. It is therefore not permitted for him to have relations with the slave girl, nor to free her, nor to sell her, nor to give her away, for he is not her owner. If he sells her for two hundred dinars and makes a profit of a hundred dinars, his sale is void, for he sold what he did not own. When the slave girl passes into the hands of her buyer, she remains the property of the first seller, and the seller is not the owner of the two hundred dinars he received: these belong to the buyer of the slave girl.
If the depositor or the one whose property was usurped comes with evidence testifying to the hundred dinars in his favor, judgment is given for him and he takes them; the seller of the slave girl then has recourse against the transgressing buyer in the deposit and takes back the slave girl if he finds her with him; if he does not find her with him and he has sold her, he takes her from whoever holds her, if that is established by testifying evidence.
If the slave girl is consumed and unrecoverable, and the transgressor sold her for two hundred dinars which he still holds: if the two hundred dinars constitute the value of the slave girl, the seller takes them; if he holds more than two hundred dinars, he takes the two hundred dinars and imposes on him a fine covering the full value of the slave girl. If her value is a hundred dinars, it is not permitted, in my view, to take the value of the slave girl, which is a hundred dinars: he seeks the transgressor in the deposit, who returns the hundred dinars to the one from whom he took them; nothing else is permitted, in my view. If the one from whom he took them has died, restitution passes to his heirs; if he cannot reach him, neither him nor his heirs, he waits until he despairs of reaching him, then gives it as charity, in accordance with what we reported from Ibn Mas'ud, Ibn Abbas and Mu'awiya ibn Abi Sufyan. This is the madhhab of al-Hasan al-Basri and al-Zuhri, and Malik held it regarding lost property (luqta) whose owner is despaired of.
Two other views exist in this question. One: this property is given to the bayt al-mal; we reported this view from Ata'. The second: the property is held forever until it is known whether its owner is alive or dead; this resembles al-Shafi'i's madhhab of suspending the property in such a case until the situation of its owner is clarified.
Abu Bakr said: if the buyer is not holding the substance of the property, but used to buy merchandise, and then misappropriates money from the deposit, the purchase remains valid and the money remains in his responsibility: he owns the merchandise by the contract of sale, the profit belongs to him, the loss is upon him, and he owes the owner the equivalent of the dinars he destroyed. This is the second of al-Shafi'i's two views and the view of most of his companions (al-Ichraf of Ibn al-Mundir 6/336, 339).
The fuqaha of the majority, the Hanafis, the Shafi'is and the Hanbalis, establish explicitly that the depositary may not borrow from the deposit he holds: if he takes something from it, he is liable; if he returns it afterwards and the deposit is damaged, the distinction set out earlier applies.
The Malikis, for their part, give the question in detail:
The justification of this lawfulness: dinars and dirhams do not freeze into specific objects, so that there is, so to speak, no prejudice for the depositor in the benefit the depositary draws from the deposit when he returns its equivalent; the depositary could have returned the equivalent and kept the property while its substances remain. The depositor, for his part, abstained from benefiting from it although he was able, so the depositary may benefit from it, like one who benefits from the shade of a wall or the light of his lamp; this contrasts with the executor who borrows from the orphan's property: he is at fault (Mawahib al-Jalil 7/229; at-Taj wa-l-Iklil 4/261, 262; Sharh Mukhtasar Khalil 6/110; al-Sharh al-Kabir with the Hachiya of ad-Dassouqi 5/123; Tahrir al-Mukhtasar 4/345).
Al-Lakhmi, of the Malikis, said (at-Tabsira 11/5990): the depositor must be considered: if the depositary knows of him that he sees no objection to it in his inmost self, or that he is of a generous nature, borrowing is permitted; if he knows of him the disapproval, it is not permitted. Indeed, if the owner had forbidden it from the time of handing over the property, or had said: "no objection if you borrow it", there would be no disagreement over the fact that he is deprived of benefiting from it; and if the situation is ambiguous, borrowing is disliked.
What al-Lakhmi held is what Shaykh al-Islam Ibn Taymiyya said: he was asked about borrowing from the deposit without permission, and he answered: "as for borrowing from the depositor's property, if the depositary knows, with a knowledge in which his heart finds assurance, that the owner of the property consents to it, and this is known only with a man whom you have fully tested and whose estimation of you you know, as has been transmitted from more than one, and as..." (the answer continues in the following part).
If he places the deposit in a protection equivalent to that of its like, then moves it to another protection of its like, he is not liable, whether he moved it to a protection equal to the first or lower; for the owner entrusted the safekeeping to his judgment and effort, and permitted him to secure it by any protection equivalent to that of its like. That is why, had he placed it in that second protection from the start, he would not have been liable for it: the same applies when he moves it there afterwards.
If he moves it to a protection lower than that of its like, he is liable, for the handing over of the deposit requires by default a protection equivalent to that of its like: if he leaves it in what is lower than it, he becomes a transgressor and is liable. If he places it in a higher protection, he is not liable, for whoever accepts the protection of its like accepts, with all the more reason, what exceeds it, unless the owner forbids him (al-Hidaya 3/218; al-Jawhara an-Nayyira 4/161, 162; al-Lubab 1/648, 649; al-Ikhtiyar 3/32; al-Muhadhdhab 1/356; al-Bayan 6/477; al-Mughni 6/304).
The Malikis make the lawfulness of moving conditional on need: if the move is not necessary, or if it is necessary but he moves it otherwise than to its like and the property is damaged during the move, he is liable (at-Taj wa-l-Iklil 4/257; al-Sharh al-Kabir with the Hachiya of ad-Dassouqi 5/121; al-Qawanin al-Fiqhiyya p. 246).
On moving the deposit, the fuqaha differ concerning one who holds a deposit and to whom the owner said: "keep it in this house or this place", without forbidding him elsewhere, and the depositary then moves it to another house or place than the one designated: is he liable or not? The rest of the detail appears in the following cases.
If he afterwards moves the property to an equivalent or higher protection, or the property is stolen afterwards, no liability falls upon him, for whoever is content with a protection is content with its equivalent and, with all the more reason, with what exceeds it; whether out of necessity or without necessity (Badai' as-Sana'i' 6/210; al-Hidaya 3/218; al-Jawhara an-Nayyira 4/161, 162; al-Lubab 1/648, 649; al-Ikhtiyar 3/32; at-Taj wa-l-Iklil 4/257; al-Sharh al-Kabir with the Hachiya of ad-Dassouqi 5/121; al-Qawanin al-Fiqhiyya p. 246; al-Muhadhdhab 1/356; al-Hawi al-Kabir 8/368, 369; al-Bayan 6/477; al-Najm al-Wahhaj 6/356, 357; Mughni al-Muhtaj 4/139, 140; Tuhfat al-Muhtaj 8/324, 326; Nihayat al-Muhtaj 6/138, 139; al-Dibaj 3/113; al-Mughni 6/304; Kashf al-Qina' 4/205, 206; Sharh Muntaha al-Iradat p. 234, 235).
The preceding detail applies when the property is not moved to another town; if it is moved to another town, a detail applies, set out in case 4: moving from one town to another.
The Malikis and the Shafi'is establish explicitly that when the depositor has designated a place for the deposit's safekeeping and the depositary moves it to another town without excuse, and the property is then damaged, he is liable for it. Ibn Juzayy the Maliki (may Allah have mercy on him) said: moving the deposit: if he moves it from one town to another, he is liable, unlike moving it from one dwelling to another (al-Qawanin al-Fiqhiyya p. 246). Al-Qarafi (may Allah have mercy on him) said: moving the deposit from one town to another is covered neither by the owner's permission nor by anyone else's; if the property is damaged, he is liable (ad-Dhakhira 9/167).
Imam al-Shafi'i (may Allah have mercy on him) said: if the property is entrusted to him in a populated village and he moves it to an unpopulated village, or to a built-up part of the village and he moves it to a ruined part, and the property is damaged, he is liable in both cases. If the property is entrusted to him in a ruin and he moves it to a built-up part, or in a dangerous place and he moves it to a safe place, he is not liable: he has improved the situation (al-Umm 4/136).
As for the Hanafis, Imam al-Kasani (may Allah have mercy on him) said: if he is told: "keep the deposit in this house of yours", and he keeps it in another house of his: if the two houses are equal in protection or the second is better protected, the property does not enter his liability, for the restriction of place has no effect; if the first is better protected than the second, the property enters his liability, for the restriction has effect when the protections differ. Likewise, if he is ordered to place it in his house in this town and forbidden to place it in his house in another town, the same detail applies (Badai' as-Sana'i' 6/210).
Imam al-Mawardi (may Allah have mercy on him) summarizes the whole in four degrees of moving the deposit: the first, from one town to another; the second, from one dwelling to another; the third, from one room to another; the fourth, from one box to another.
If the depositary moves the property to a protection lower than the one designated, or to what is less protected, when he has no need to, he is liable, for he contravened his owner's order without any benefit to himself; it is therefore not permitted to defeat the purpose the deposit's owner sought in designating the place, without necessity (al-Sharh al-Kabir with the Hachiya of ad-Dassouqi 5/121; al-Muhadhdhab 1/356; al-Hawi al-Kabir 8/368, 369; al-Bayan 6/477; al-Najm al-Wahhaj 6/356, 357; Mughni al-Muhtaj 4/139, 140; Tuhfat al-Muhtaj 8/324, 326; Nihayat al-Muhtaj 6/138, 139; al-Dibaj 3/113; al-Mughni 6/303, 304; Kashf al-Qina' 4/205, 206; Sharh Muntaha al-Iradat p. 234, 235).
The Hanafis and Abu Sa'id al-Istakhri among the Shafi'is hold that if the deposit's owner forbids the depositary to take it out of the designated place, and he moves it to a place equal in protection or higher, no liability falls upon him, for he moved it to a protection equivalent to the designated one or higher: it is as if the prohibition did not bear on moving; on the other hand, if he moves it to a lower protection, he is liable without dispute (Badai' as-Sana'i' 6/210; al-Hidaya 3/218; al-Jawhara an-Nayyira 4/161, 162; al-Lubab 1/648, 649; al-Ikhtiyar 3/32; al-Muhadhdhab 1/356; al-Bayan 6/477).
Second scenario: there is an excuse, such as danger of destruction, which obliges him to move the deposit. The Shafi'is and the Hanbalis establish explicitly that if the deposit's owner designates to the depositary a place of safekeeping and forbids him to take the property out of it, and the depositary fears for the property its damage by a fire or a cause whose outcome is destruction, he must move it; if he does not move it in that state and leaves it in the protection designated by the owner, from which taking it out was forbidden, until it is damaged, liability falls upon him, whether the property is damaged by the feared danger or by something else, for he is negligent (mufrit).
A note by Ibn al-Mundir (may Allah have mercy on him) in al-Ichraf (6/344) sheds light on the case of fire: they differed concerning a fire that breaks out in the house, while the depositary is able to take the deposit out of its place and does not do so. One says: he is liable, for it is as if he destroyed it, he who was charged with keeping it and let it be lost; this resembles al-Shafi'i's madhhab, who said: one to whom animals are entrusted and who does not feed them until they perish is liable. Another says: no liability upon him, for it is the fire that destroyed it; this resembles the Muslim man surrounded by flames, while another Muslim able to rescue him does not do so: the latter is disobedient, but there is neither retaliation nor reason to slay him for it.
Imam Ibn Qudama (may Allah have mercy on him) said: if the deposit's owner orders the depositary to keep it in a designated place and he keeps it there without fearing for it, no liability falls upon him without dispute, for he obeys the order and is not negligent with another's property. If he fears for it a flood or destruction and takes it out to a protected place, and the property is then damaged, no liability falls upon him either, without dispute, for moving it was in that case an obligatory safekeeping, and he is charged with keeping it. If he leaves it despite the fear and the property is damaged, he is liable, whether the damage comes from the feared danger or from something else, for he was negligent in the safekeeping: keeping the property means moving it, and leaving it means losing it. If he fears nothing for it and moves it to a lower protection, he is liable, for he contravened the safekeeping he was ordered to perform.
If he moves it to a lower protection while fearing for it, it must be considered: if he can secure it in an equivalent or higher protection, he is also liable for it, for his negligence; if he can secure it only in a lower protection, he is not liable, for securing it that way is more protective than leaving it, and he has no other possibility (al-Mughni 6/303; Kashf al-Qina' 4/205, 206; Matalib Uli al-Nuha 4/150, 151).
If the deposit's owner says to him: "do not take it out of that protection, even if you fear for it destruction", it is permitted for him to take it out in that state, for it is a case of excuse, and he is therefore not liable for the move, which is an increase of good and safekeeping; as if he were told: "destroy it", and he does not destroy it until it perishes by itself. The Shafi'is and the Hanbalis, however, differ: if the depositary does not move it in that state and the property is damaged, is he liable for it? Two views. The first, which is the correct one with them: he is not liable, for he obeyed his owner's order, the prohibition against taking it out despite the fear of destruction being established by an explicit text, so that he is permitted to leave it in that state; as if he were told: "destroy it", and he destroys it. The second: he is liable, for he exposed the property to danger by leaving aside the move despite the fear, the owner's prohibition aiming only at safekeeping, and safekeeping here consisting in taking it out; it is as if the owner had not forbidden him to take it out (al-Muhadhdhab 1/359, 360; al-Hawi al-Kabir 8/368, 369; al-Bayan 6/477; al-Najm al-Wahhaj 6/356, 357; Mughni al-Muhtaj 4/139, 140; Tuhfat al-Muhtaj 8/324, 326; Nihayat al-Muhtaj 6/138, 139; al-Dibaj 3/113; al-Mughni 6/303, 304; Kashf al-Qina' 4/205, 206; Sharh Muntaha al-Iradat p. 234, 235).
The Hanafi madhhab, in this case, is that moving it is obligatory upon him when he fears the property's damage. Imam al-Kasani (may Allah have mercy on him) said: among the causes that change the state of the contracting party (the depositary) from trust to liability: abandoning safekeeping; he bound himself by the contract to keep the deposit in such a way that, if he abandons its safekeeping until the property perishes, he guarantees its equivalent, by the way of suretyship (kafala). That is why, if he sees someone stealing the deposit while he is able to prevent him, he is liable for having abandoned the safekeeping to which the contract bound him: this is the meaning of our shaykhs' saying: "the depositary is seized by the liability of the contract" (Badai' as-Sana'i' 6/211).
Abu Muhammad ibn Ghanim ibn Muhammad al-Baghdadi the Hanafi (may Allah have mercy on him) said: if the depositary's house burns and he does not move the deposit to another place while able to, he is liable for it, given that he could have kept it by moving it to another place (Majma' ad-Damanat 1/212; Tanqih al-Fatawa al-Hamidiyya 5/155).
One who holds a deposit and then wishes to travel with it: the question comprises four cases. First case: the depositor permits him to travel with the deposit. The fuqaha do not differ: if the depositor permits the depositary to travel with the deposit, the travel is permitted, and if the property is damaged because of the travel, no liability falls upon him.
Second case: the depositor forbids him. The fuqaha do not differ: if the depositor forbids the depositary to travel with the deposit and he travels with it, without excuse, he is liable for it, for he contravened its owner, the restriction of place having effect, safekeeping in the town being more protective, unless he is forced to travel with it, as in the evacuation of a town's inhabitants, an enemy attack, a fire or a flood, or if the ruler intends to seize the property: if he travels with it and finds no one with whom to leave it in safety, and the property is damaged, no liability falls upon him, for it is a case of necessity and he has no other possibility.
If he leaves the property in that case without traveling with it and it is damaged, the soundest view among the Shafi'is and the Hanbalis is that he is liable, for he abandoned the best option and is considered to have wasted the property. The Hanbalis say: if highwaymen attack him and he throws the deposited property away to hide it, and it is lost, no liability falls upon him, for this is the custom of people in protecting their property (Kashf al-Qina' 4/212, 213; Mukhtasar al-Waqi'a 2/132; al-Jawhara an-Nayyira 4/158; al-Ichraf 'ala noukat masa'il al-khilaf 3/111-113, no. 969, 970; Tahrir al-Mukhtasar 4/345; Sharh Mukhtasar Khalil 6/109; al-Sharh al-Kabir with the Hachiya of ad-Dassouqi 5/122, 123; al-Bayan 6/483; Mughni al-Muhtaj 4/137, 138; al-Mughni 6/302; al-Kafi 2/377; Matalib Uli al-Nuha 4/157).