Islamic Fiqh > Endowments (waqf) and property > Wadi'a: the deposit of trust > Traveling with the deposit without permission or prohibition
Contents
Updated on 25 September 2026 at 6:57 PM
This part belongs to the full section: All sections of this part.
This second part (conclusion) of the chapter on what the depositary may do treats ten questions: the depositary traveling with the deposit, disposing of the deposit by sale, lease, loan or pledge, sub-depositing it with a third party with or without an excuse, keeping the deposit with one's children or wife, returning a deposit shared among several partners, and the deposit claimed by two persons. Each question is treated with the positions of the four schools and their classical references. The guiding thread remains the same: defining from what point the depositary leaves his mission of safekeeping and becomes liable for the loss of the deposit.
The Shafi'is first specify the case of fear arising on the road: if the depositary, having stopped because of a fear, is attacked by highway robbers and throws the deposit into a wasteland to protect it, and the deposit is then lost, he is liable for it. The same applies if he buries it out of fear of them as they approach, and then loses the place where he hid it ("Mughni al-Muhtaj", 4/138).
The third situation is the one in which the deposit was entrusted to the depositary without being permitted to travel with it and without being forbidden to do so, and the depositary travels. The jurists ask: is it permitted for the depositary to travel with the deposit or not? Two situations arise. If the road is dangerous, or the country he is heading to is not safe, the scholars agree that it is not permitted for him to travel with the deposit, because he exposes it to danger ("al-Jawhara an-Nayyira", 4/158; "Mukhtasar al-Waqi'a", 2/132, and the previous sources). If the road is safe, with nobody normally intending harm, any attacker being repelled by himself or his companions, and if the country of destination is safe, the jurists differ: is it permitted for him, in this case, to travel with the deposit or not?
The Hanafis and the Hanbalis, according to the sound view among them, hold that it is permitted for him to travel with the deposit when it requires no carriage or expense, for several reasons:
This applies to what requires neither carriage nor expense. If the deposit requires carriage and expense, they differ: Abu Hanifa and the Hanbalis make no distinction between what requires carriage and expense and what does not. Abu Yusuf said: if the deposit requires carriage and expense, traveling with it is permitted if the journey is short, and forbidden if it is long. Muhammad said: traveling with it is not permitted in this case, because the outward state of the owner indicates that he would not accept it; the depositary then becomes like the agent for sale to whom it is not permitted to travel with the goods sold, and if he travels, he is liable for it. What requires carriage and expense is what needs the back of a mount or the wage of a porter ("Bada'i' as-Sana'i'", 6/209; "al-Hidaya", 3/217; "al-Bahr ar-Ra'iq", 7/278; "al-Jawhara an-Nayyira", 4/158-159; "al-Ikhtiyar", 3/31; "Mukhtasar al-Waqi'a", 2/132; "al-Lubab", 1/646-647).
This is the case where the owner is absent from the town, as well as whoever keeps his wealth or his deputy in charge of receiving it. If, however, the owner is present in the town, or whoever keeps his wealth or his deputy, and he nevertheless travels with the deposit, the Hanbalis differ on two views:
The Malikis hold that if the depositary travels with the deposit while able to leave it with a trustworthy person, and it perishes, he is liable for it, unless he returns it safe and sound to the place where it was and it perishes afterwards: there is then no liability upon him for lack of a cause of liability, and the burden of the claim that he returned it safe and sound rests upon him. If he cannot find a trustworthy person and fears for it if it is left, there is no liability upon him if he takes it along and it perishes, with no distinction between the travel of moving with one's family, a trade journey, or a visit journey.
It is related in "al-Mudawwana al-Kubra": I said: if a man entrusts me with a deposit and my departure to some lands draws near, and I fear for it, so I take it along and it is lost, am I liable according to Malik's view? He said: yes. I said: what do I do with it then? He said: you deposit it, according to Malik's view, and do not expose it to perishing ("al-Mudawwana al-Kubra", 15/145).
They argued against the permissibility of traveling with the deposit by what Qadi 'Abd al-Wahhab said: travel does not preserve the deposit when it could be deposited in the town, so he is liable for it as if he had left it in a ruinous place where custom does not admit that it be kept; and because the owner only authorized him to keep it in the town, not to take it out of it, as if he had authorized him to keep it in his hand without authorizing him to deposit it with another; since depositing it with another entails liability by exceeding what he was authorized to do in keeping it, the same applies if he travels with it.
When he wants to travel, it is permitted for him to deposit it with a trusted and satisfactory person of the town, with no liability upon him, whether he can reach the judge or not. The Shafi'is differ: some say that if he deposits it with someone other than the judge, he is liable for it; our proof is that he deposited it out of need with a satisfactory trusted person, which resembles depositing it with the judge; and because he is one of the two means of keeping it, so that reliance is placed on his diligence, like the lock ("al-Ishraf 'ala nukat masa'il al-khilaf", 3/111, 113, nos. 969, 970; "al-Ma'una", 2/182-183; "at-Taj wal-Iklil", 4/261; "Tathbir al-Mukhtasar", 4/345; "Sharh Mukhtasar Khalil", 6/109; "ash-Sharh al-Kabir ma'a Hashiyat ad-Dasuqi", 5/122-123).
The Shafi'is add: if the depositary wants to travel, even for a short journey, and he received the deposit while the owner was present, he must return it to the owner or his agent, because he stands in his place, whether he is a specific agent for recovering it or for all his affairs, so as to leave the custody. If he hands it to another, he is liable for it with regard to the stranger, even if he is certainly just, and with regard to the judge according to the sounder view, because the judge has no authority over him.
If the owner or his agent cannot be found because of absence, imprisonment or hiding, and he cannot reach them, he returns it to the judge if he is trustworthy and safe, because he is the absent person's deputy, and he must accept and have witnesses attest upon himself that he received it; and if the qadi orders him to hand it to a trustworthy person, it is permitted. If the judge cannot be found, because there is no judge in the town or the judge is not trustworthy, he hands it to a trustworthy person whom he trusts, so as not to suffer harm from the delay of the journey; as it is reported:
The Prophet (peace and blessings of Allah be upon him) had deposits entrusted with him in Mecca; when he decided to make the Hijra, he deposited them with Umm Ayman and left Ali (may Allah be pleased with him) to return them.Reported without a specified narrator in the sheet
He must have the witnessing performed, according to the sounder of the two views, because the trustworthy person may deny. If he hands it to the judge or to the trustworthy person while able to reach the owner or his agent, he is liable for it for deviating from what is incumbent upon him, like the judge who marries a woman while her guardian exists. Likewise if he hands it to a trustworthy person while a trustworthy judge exists: he is liable according to the sounder view, because the justice of the judge is agreed upon.
According to the second view, he is not liable if he hands it to a trustworthy person while the judge exists, because he is excused, having deposited it with a trustworthy person; this resembles the case where he finds neither the owner, nor his agent, nor the judge, and hands it to a trustworthy person: he is then not liable.
If he contravenes and travels with the deposit, he is liable for it if he is not compelled to travel, whether the journey is long or short, and whether the road is safe or dangerous: the safety of travel is not certain, fear may arise on the road; traveling with the deposit while exposing it to risk amounts to distancing it from its owner, and this is a transgression; and the custom of keeping deposits and securing them runs in the towns, not in travels, so departing from custom in this matter is a transgression. But if a necessity calls him to travel, such as a sedition, a fire or a flood striking the town, and he finds no one with whom he can place it in safety, it is permitted for him to travel with it, with no liability, even if the road is dangerous: this is a case of necessity, for he can do nothing else.
Disposing of the deposit means every contract that the depositary concludes whose subject is the deposit in his hands, such as selling the deposit, leasing it, lending it (qard), granting it as a loan for use (i'ara) or pawning it, and the like, which count as a disposal. This act of the depositary has two situations: if it takes place with the permission of the owner of the deposit, it is valid by consensus, the depositary becomes the owner's agent, the rules of agency apply to him, and there is no liability upon him; if he disposes of it by sale, lease or otherwise without the permission of the owner of the deposit, he is a transgressor and liable for it.
Ibn Nujaym the Hanafi (may Allah have mercy on him) said: the deposit is neither to be deposited with another, nor lent, nor leased, nor pawned; if he does any of these things, he is liable for it ("al-Bahr ar-Ra'iq", 7/275; "Majma' ad-Damanat", 1/194; "Hashiyat Ibn Abidin", 8/337; "al-Fatawa al-Hindiyya", 4/338).
The Hanafis said: the reason the depositary may not lease it is that lease is a binding contract and deposit is a non-binding contract; if the depositary were the owner of the lease, either the bindingness of what is not binding would result, that is, the deposit contract would be made binding although it is not, or the absence of bindingness, meaning that the lease would become non-binding although it is binding. Accordingly, the depositary may not lease the deposit without permission for his own benefit, nor lease it for the depositor's benefit either, nor grant it as a loan for use, because the depositary is not the owner of the benefits of the deposit; and since the loan for use is a transfer of ownership of benefits, it is not possible for a person to own what he does not own.
He may not pawn it with another either, because pledge is satisfaction by legal construct, and no person may discharge his debt with another's wealth without its owner's order. Thus, just as the depositary may not pawn the deposit without permission for his own debt or for the debt of a stranger, he may not pawn it for the depositor's debt either without permission, because pledge is a binding contract and the deposit is not a binding contract.
If he uses it without permission, or leases it, loans it or pawns it and hands it over, and the deposit perishes, is lost or loses value during the use, whether in the depositary's hand or in the hand of the lessee, the borrower for use or the pledgee, even without transgression or negligence, liability becomes binding upon the depositary, because these acts, being disposals over another's property without permission, entail liability ("Murshid al-Hayran", 3/1219-1220). In this case the owner has the choice between holding the depositary liable, or holding the lessee, the borrower for use or the pledgee liable.
It is stated in article 712 of "Majallat al-Ahkam al-'Adliyya": the depositary may not dispose of the deposited item in his hands by lease, loan for use or pledge without its owner's permission; if he does so and it perishes in the hand of the lessee, the borrower for use or the pledgee, the owner has the choice between holding the depositary liable, or holding the lessee, the borrower for use or the pledgee liable.
It is stated in "Durrar al-Hukam", the commentary on "Majallat al-Ahkam": if the depositary leases the deposit without permission to another and hands it over, then it perishes in the lessee's hand, the depositor has the choice: if he wills, he holds the depositary liable, because he is like an usurper, and in this case the depositary may not have recourse against the lessee if the perishing in his hand occurred without transgression or negligence; if he wills, he holds the lessee liable, because he is like the usurper of an usurper. If he grants it as a loan for use without permission and it perishes in the borrower's hand, the depositor has the choice: holding the depositary liable, and in this case the depositary may not have recourse against the borrower if the perishing occurred without transgression or negligence, for the depositary has become the owner of the loan by reason of the liability, and the loaned item is a trust in the borrower's hand; or holding the borrower liable, and the latter, in this case, may not have recourse against the depositary.
If he pawns it without permission with another and the depositor does not ratify the pledge: if the deposit exists, the depositor may recover it in kind from the pledgee; if it perishes, the depositor has the choice: holding the depositary liable, and he may then not oblige the pledgee to pay its highest value; or holding the pledgee liable, and if the depositor holds him liable, the pledgee has recourse against the depositary. If he sells the deposit without permission to another and it perishes after the handover in the buyer's hand, the depositor has the choice: holding the depositary liable, in which case the sale stands; or holding the buyer liable, and the latter has recourse against the depositary. If he gives the deposit as a gift without permission to another and hands it over, and it perishes in the recipient's hand, the depositor has the choice: holding the depositary liable, and the depositary may not, in this case, have recourse against the recipient; or holding the recipient liable, and he may not have recourse against the depositary ("Durrar al-Hukam", 2/269-270).
The jurists, however, differ: if the depositary leases the deposited item, to whom does the rent belong? To the owner of the deposit or to the depositary? Likewise if he sells it and makes a profit. The Hanafis hold that the rent belongs to the depositary in return for his guaranteeing of the deposit ("al-Mabsut", 11/126). Imam as-Sarakhsi (may Allah have mercy on him) said: if he leases the camels, that is, the deposited camels, for Mecca and takes the rent, the rent is his, because it became due by his contract; the yield is not like the offspring, nor like wool and milk, for those come into being from the capital and are owned with the ownership of the capital, whereas this does not come into being from the capital; rather it becomes due by the contract, and therefore belongs to the contracting party ("al-Mabsut", 11/126).
The same dispute should apply to the case in which he trades with the deposit's wealth and makes a profit: according to Abu Yusuf, it is lawful for the depositor; according to Abu Hanifa and Muhammad, it belongs to the depositor but is not lawful for him, and he must give it in charity. The question has been treated in detail above, with the scholars' sayings, and this is what I found stated explicitly regarding the depositary's sale of the deposit, as in "al-Muhit al-Burhani" by Imam Burhan ad-Din Ibn Maza, where he said: the origin of the issue is: if the depositary sells the deposit and makes a profit, then guarantees it, is the profit lawful for him? It is upon this difference.
That is: according to Abu Hanifa and Muhammad, the profit is not lawful for him, because the condition of lawfulness according to them is ownership and guarantee, and the guarantee, although required at the time of the exchange, was not accompanied by ownership. According to Abu Yusuf, the profit is lawful for him, because the condition of lawfulness is only the guarantee, and it is found here ("al-Muhit al-Burhani", 5/456).
As for the Malikis, they said: if someone is entrusted, for example, with camels, a mount or a ship, and he transgresses over it by leasing it, for example for Mecca, and it returns in its state, with no defect in its substance compared to its state on the day of the deposit, but he kept it away from its markets, whether for trade or for personal use: if it was expensive during its absence, its owner has the choice between two things:
The same ruling applies to the borrower for use and the lessee who exceed the stipulated distance: its owner has the choice: taking the mount together with the rent of the distance by which they exceeded, and its upkeep is then upon him; if its upkeep exceeds the rent, the owner owes nothing and takes nothing in addition, or he takes its value on the day of the leasing. This is when it returns in its state. If a change has occurred in it diminishing it, its owner has the choice among three things, whether it was kept away from its markets or not:
If it perishes, its owner receives its value on the day of the leasing, for that is the day of the transgression, and there is no rent for it even if it is greater than the value, unless the depositary offers to pay him the rent ("at-Taj wal-Iklil", 4/272; "Sharh Mukhtasar Khalil", 6/115; "ash-Sharh al-Kabir ma'a Hashiyat ad-Dasuqi", 5/133; "Tathbir al-Mukhtasar", 4/355; "Minah al-Jalil", 7/27).
It is related in "al-Mudawwana al-Kubra": I said: what do you think if someone deposits camels with me and I lease them for Mecca: does their owner receive anything from the rent or not? He said: everything whose origin is a trust, if he leases it, its owner has the choice, if the camels return safe and in their state: to take their rent and take the camels, or to leave them to him and have him guarantee their value, with nothing of the rent for him, if he kept them away from their markets and their benefits; and this is like a man to whom another loaned or leased a mount for a certain place and who transgressed over it; for none of this is guaranteed except through his transgression in it: all of this is one single door; this applies to the deposit and to the debt, according to Malik's view concerning the one who borrows the mount and transgresses, and the one who leases it and transgresses over it; this, in leasing and loan for use, is Malik's saying ("al-Mudawwana al-Kubra", 15/157).
The Malikis also said: if the depositary sells the deposit without its owner's permission while it is merchandise, its owner, as long as it is not lost, has the choice between ratifying the sale and taking the price for which it was sold, or revoking the sale and taking back his goods. If it is lost, he is awarded the greater of the price or its value on the day of the transgression, because the depositary is an unauthorized intermeddler (faduli); the same applies to every seller who transgresses over another's goods, even an usurper, and such is likewise the ruling of selling the deposit without trading in its price.
If he sells it by way of trade, its sale is detailed as follows: if he sells it against goods, goods against goods, and so on, there is no profit for him, but the fee is his; if he sells it for dirhams, the profit made in its price belongs to its owner. An example is that merchandise is deposited with him which he bought for ten and sold for twenty: its owner has the choice between ratifying the sale and taking the twenty, or revoking the sale and taking back his goods; after its loss, he chooses between ratification with the taking of what it was sold for, or the guarantee of its value on the day of its sale; the meaning is that he receives the greater of the price and the value. The apparent meaning of the words of the school's scholars is that there is no fee for him in the sale, because he transgresses through it; and the difference between this and the merchant selling goods against goods, for whom the fee is established, is that the merchant only acted under constraint, unlike this one.
an-Nafrawi gives this notice: the depositary, as regards deserving the profit when trading with the deposited item, is like the guardian who trades with the orphans' wealth: the profit is his and the loss is upon him; their like is also the administrator of the waqf who trades with the waqf's wealth, except that the guardian and the administrator are forbidden to dispose of what is in their hands; and their like again is the usurper of dirhams who trades with them: he owes only the capital, and the profit is his, for he would be liable only if the owner of the dirhams were a merchant according to the relied-upon view; because all those mentioned did not take the wealth in order to grow it for its owner, unlike the co-owner in indivision and the mudarib when they trade with what is in their hands: there is no profit for them, but for the owner of the wealth; and if a loss occurs, it is upon them for their transgression.
He gives another notice: the locus of the choice given to the owner of the deposit between ratification and revocation, and so on, runs as long as the contract of sale has not taken place in his presence, or the sale has reached him and he remains silent for a period such that he is considered consenting; otherwise the sale binds him and he takes what it was sold for, little or much ("al-Fawakih ad-Dawani", 2/268-269; "Mawahib al-Jalil", 7/229; "As'hal al-Madarik", 2/274).
As for the depositary depositing the deposit with another: three situations. First situation: its owner permits him to deposit it with another; if the owner of the deposit permits the depositary to deposit it with another person, it is valid.
Third situation: depositing the deposit with a stranger, which has two forms. First form: depositing it with a stranger without an excuse. The jurists of the four schools, the Hanafis, the Malikis, the Shafi'is and the Hanbalis, agree that the depositary may not deposit the deposit with a stranger without an excuse, even if the stranger is trustworthy, for the owner accepts only his own trustworthiness: a thing does not guarantee its like, like the agent who may not delegate to another. If he deposits the deposit with a stranger, he becomes liable for it, because he accepted it in his hand, not in the hand of another; hands differ in trustworthiness; he is therefore liable for it as if he had been forbidden to deposit it: he was ordered to keep it himself, and the owner accepted no one else for it.
The depositary is taken into consideration in the deposit, because of people's difference in safekeeping and trustworthiness: the depositor may accept that his wealth be deposited with one person rather than another. When the depositary does that and hands the deposit to a stranger, he abandons the safekeeping he committed himself to by imposing another upon it, and he becomes liable, because the depositary did not accept it from him.
The jurists differ in this case: if he deposits it with a stranger without an excuse and it is lost with him, who bears the liability? The first one? Or may the owner hold whichever of the two he wills liable? The majority of the jurists, the Malikis, the Shafi'is and the Hanbalis within the madhhab, together with the two Companions among the Hanafis, Abu Yusuf and Muhammad, hold that the owner may hold whichever of the two he wills liable: if he wills, he holds the first liable; if he wills, the second. If he holds the first liable, he does not have recourse against the second; if he holds the second liable, he has recourse against the first.
The reason is that the cause of liability exists in each of the two: the first, because he handed another's wealth to another without his permission; the second, because he took another's wealth without permission; each of the two is a cause of liability, so the owner is given the choice: if he wills, he holds the first liable; if he wills, the second, like the one who deposits with an usurper alongside an usurper. Only, if he holds the first liable, he does not have recourse against the second, because the first became the owner of the deposit by paying the liability, so it appears that he deposited his wealth with him of his own accord: he is a depositary in whose hand the deposit perished, and nothing is due from him. If he holds the second liable, he has recourse against the first, because the first deceived him by depositing it with him, and the liability of deception is incumbent upon him, as if he had stood surety for him regarding what he owes of custody in this contract; the liability of deception is a suretyship liability once it is known.
This ruling applies if the second does not know the situation, that is, does not know that the first depositary deposited it with him without an excuse. If he knows that he deposited it with him without an excuse, the liability is established upon him according to the Shafi'is and the Hanbalis within the madhhab, and he does not have recourse, with what he paid, against the first, for he entered the matter while already liable, and there is no recourse.
Imam Abu Hanifa and the Qadi among the Hanbalis said: if he deposits it with one with whom it is not permitted to deposit, and it is lost in the second one's hand, the liability is upon the first, not upon the second. The reason for Abu Hanifa's view is that the hand of the second depositary is not a hand of liability, but a hand of keeping and protecting the deposit from the causes of perishing, so that it cannot be a cause of liability, because it belongs to beneficence toward the owner. Allah, Exalted is His rank, says:
« No path [of blame] lies against those who do good »
Surah At-Tawbah, 91
It would also have been fitting that the liability not fall upon the first as well, because the depositing on his part is the direct establishing of a cause of preservation and safekeeping for it, so that he was beneficent in it; only he has become specified by the text, and the second depositary remains upon its apparent meaning. All of this is when the second has not consumed it: if he consumes it, the liability is upon him by consensus, and the owner has the choice: if he wills, he holds the first liable, or the second; if he holds the first liable, the latter has recourse against the second, and if he holds the second liable, he does not have recourse against the first ("Bada'i' as-Sana'i'", 6/208; "Majma' ad-Damanat", 1/211; "al-Jawhara an-Nayyira", 4/150-151; "al-Ikhtiyar", 3/30; "Mukhtasar al-Waqi'a", 2/133; "al-Lubab", 1/644; "at-Taj wal-Iklil", 4/266; "Sharh Mukhtasar Khalil", 6/112; "ash-Sharh al-Kabir ma'a Hashiyat ad-Dasuqi", 5/127; "Tathbir al-Mukhtasar", 4/349-350; "al-Muhadhdhab", 1/361; "al-Bayan", 6/487, 489; "Mughni al-Muhtaj", 4/135-136; "al-Mughni", 6/103; "Sharh az-Zarkashi", 2/296; "Kashshaf al-Qina'", 4/211; "Manar as-Sabil", 2/277; "al-Ifsah", 2/9).
Second form: depositing the deposit with a stranger because of an excuse. The depositary may have an excuse: that a fire has broken out in his house, or that he fears fire or drowning. This has two types. First type: being able to return it to its owner or his agent in charge of receiving it, or to whoever is among his dependents, according to the majority, contrary to the Shafi'is: it is then not permitted for him to deposit it with a stranger; if he does so, he is liable for it, because he handed it to other than its owner without his permission and without an excuse; he is therefore liable for it as if he had deposited it without an excuse, and this is a place of agreement among the jurists ("Bada'i' as-Sana'i'", 6/208; "Majma' ad-Damanat", 1/211; "al-Jawhara an-Nayyira", 4/150-151; "al-Ikhtiyar", 3/30; "Mukhtasar al-Waqi'a", 2/133; "al-Lubab", 1/644; "at-Taj wal-Iklil", 4/266; "Sharh Mukhtasar Khalil", 6/112; "ash-Sharh al-Kabir ma'a Hashiyat ad-Dasuqi", 5/127; "Tathbir al-Mukhtasar", 4/350-351; "al-Muhadhdhab", 1/361; "al-Bayan", 6/487, 489; "Mughni al-Muhtaj", 4/135-136; "al-Mughni", 6/103; "Sharh az-Zarkashi", 2/296; "Kashshaf al-Qina'", 4/211; "Manar as-Sabil", 2/277; "al-Ifsah", 2/9).