Islamic Fiqh > Endowments (waqf) and property > Wadi'a: the deposit of trust > Being unable to return the deposit to its owner or his agent
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Updated on 25 September 2026 at 6:57 PM
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Second type: being unable to return it to its owner or his agent. The jurists agree that if he finds neither its owner nor his agent, and the judge is a tyrant, it is permitted for him to deposit the deposit with a stranger. They differ when the depositary cannot return the deposit to its owner or his agent although a judge exists: is it permitted for him to deposit it with another or not? The Hanafis, the Malikis and the Hanbalis in one view hold that it is permitted for him to deposit it with another even with the existence of the judge, only he is not believed in the handing over to another on the ground of an excuse except with evidence.
The Hanafis said: if there is an excuse, such as a fire that broke out in his house, or he is on the ship and fears drowning, and he cannot return it to its owner or to whoever is among his dependents, and he hands the deposit to another, there is no liability upon him, because the handing over to him has, in this case, become a necessary way of safekeeping, and the handing over is then by the owner's permission, indicatively: he is therefore not liable. If he deposits it with another and claims that he did so because of an excuse, he is not believed in that except with evidence, according to Abu Yusuf, and this is the measure of Abu Hanifa's view (may Allah have mercy on him), as Shaykh al-Quduri mentioned; because the handing over to another is, in origin, a cause of liability, and the claim of necessity is the claim of an accidental matter by which he seeks to repel the liability from himself: it is therefore believed only with proof; this is when the deposit perished in the hand of the second depositary. If he consumed it, the owner has the choice by consensus: if he wills, he holds the first liable, and if he wills, the second; if he holds the first liable, he has recourse against the second, and if he holds the second liable, he does not have recourse against the first, because the cause of liability truly exists in the second, namely the consumption ("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).
The Malikis said: as for the depositary, if an excuse arises with him, such as fearing the dilapidation of his dwelling, the demolition of his house, or an affliction befalling him: if he is able to return it to its owner and does not return it, he is liable for it, because he is able to reach the owner. If he is unable to return it to its owner, whether because of absence or imprisonment, it is permitted for him to deposit it with a trustworthy person, with no liability upon him if it perishes or is lost with the second depositary, and he must have witnesses attest that he deposited it for this excuse; he is not believed if he claims that he deposited it for the excuse without evidence, and the evidence must see the excuse: his saying "bear witness that I deposited it for the excuse" without their seeing it is not sufficient.
This ruling applies when this excuse arises after the deposit. If it existed at the time of the deposit, and the depositor (al-mudi', with kasra) is discerning, it is not permitted for the depositary (al-muda', with fatha) to deposit it with another, and there is no liability upon him if it perishes so long as he did not deposit it; if he is not discerning, the depositary is liable for it, whether it is lost with him or with another, unless its loss with the latter stems from a cause other than the one he feared ("at-Taj wal-Iklil", 4/266; "Mawahib al-Jalil", 7/232; "Tathbir al-Mukhtasar", 4/350-351; "Sharh Mukhtasar Khalil", 6/112; "ash-Sharh al-Kabir ma'a Hashiyat ad-Dasuqi", 5/127-128).
Imam Malik (may Allah have mercy on him) was asked about the man to whom a man entrusts a deposit and who entrusts it to another: is he liable? He said: if the man intended a journey, or his house was dilapidated, or any similar excuse, I see that there is no liability upon him; if he has no excuse of this kind, I see him as liable ("al-Mudawwana al-Kubra", 15/76).
The Shafi'is and the Hanbalis in one view hold that it is not permitted for him to hand it to a stranger while the judge exists. The Shafi'is said: if an excuse exists but the depositary is able to return the deposit to its owner or his agent, he returns it to them, and it is not permitted for him to deposit it with a stranger; if he does so, he is liable for it. 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, and the witnessing is obligatory 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, which resembles the case where he finds neither the owner, nor his agent, nor the judge, and hands it to a trustworthy person: he is not liable ("al-Muhadhdhab", 1/361; "al-Bayan", 6/487-488; "Rawdat at-Talibin", 4/578-579; "an-Najm al-Wahhaj", 6/349, 354; "Mughni al-Muhtaj", 4/135, 137; "ad-Dibaj", 3/110, 112; "Tuhfat al-Muhtaj", 8/314, 319).
The Hanbalis said: if he deposits it with another because of an excuse, such as fearing for it a fire or a tyrant or the like, and he finds neither its owner nor his agent, it is permitted, with no liability upon him, because of the excuse. They differ, however: is it obligatory upon him, in this case, to hand it to the judge, or is it permitted to deposit it with a trustworthy person while the judge exists? Two views in the madhhab: one of them is that if he can reach the judge, it is not permitted for him to deposit it with a trustworthy person, because none other than the judge has authority; the second is that handing it to the judge is not required; depositing it with a trustworthy person suffices, with no liability upon him, because the latter may be safer for it and dearer to its owner ("al-Mughni", 6/103; "al-Mubdi'", 5/238; "al-Insaf", 6/325; "Sharh az-Zarkashi", 2/296; "Kashshaf al-Qina'", 4/211; "Sharh Muntaha al-Iradat", 4/240; "Manar as-Sabil", 2/277). This is when he finds the judge; if he does not find the judge, he hands it to a trustworthy person.
This ruling applies to matters other than seeking the help of others in carrying the deposit and keeping it in the lock, as well as watering it and feeding it, as the Shafi'is and the Hanbalis stated: there is no liability upon him even if it perishes in this case, because custom runs toward seeking help, and because he did not remove it from his hand nor delegate its safekeeping to another ("al-Muhadhdhab", 1/361; "Kashshaf al-Qina'", 4/211, and the previous sources).
The jurists differ concerning the depositary: is it permitted for him to hand the deposit to his children, his servant or his trustworthy wife, with no liability upon him if the deposit perishes in their hands, or is it not permitted for him to hand it to any of them? The majority of the jurists, the Hanafis, the Malikis and the Hanbalis, hold that it is permitted for the depositary to hand the deposit to whoever is among his dependents, such as his child, his parents and his wife, and his personal hired servant according to Abu Hanifa, to keep it if they are trustworthy: he kept it the way he keeps his own wealth, which resembles keeping it himself, as if he handed the livestock to the shepherd or the animal to his boy to water it. The stranger is excluded: handing it to him does not count as safekeeping on his part.
The Hanafis said: the depositary may keep the deposit himself and with his dependents, his wife, his child, his parents and his personal servant whom he hired for serving or assisting, even if he is forbidden to keep it with them, because what is incumbent upon him is to keep it the way he keeps his own wealth, and he keeps his own wealth with his dependents; the depositary cannot stay constantly at home to keep the deposit, nor carry it along when he goes out: he therefore has no alternative to keeping it with his dependents.
And because what the contract requires is safekeeping, and a person, by custom, only undertakes to keep another's wealth the way he keeps his own: now he keeps his own wealth at times in his hand and at times in theirs; he may therefore keep the deposit in their hands as well, and keeping it in their hands thus falls under the contract indicatively. Likewise, he may return the deposit through their hands, even if it perishes before reaching the owner: there is no liability upon him, because their hand is, in meaning, the depositary's hand; as long as the wealth is in their hands, it is preserved by his keeping. He may not, however, hand the deposit to anyone other than them except for an excuse.
Whoever is among his dependents is the one who dwells with him: his wife, his child, his servant and his slave, provided they are trustworthy. It is also said: the one who dwells with him and whose upkeep he bears, whether a relative or a stranger. Likewise, it is permitted for him to hand it to a trustworthy person among his trusted ones who is not among his dependents, such as the partner in an 'inan or mufawada partnership, and this is the position given in fatwa among them, because these people keep his wealth: their hand is like his hand; if he keeps it with others, he is liable for it.
Likewise the two money-changers if they are partners: if one of the two places the deposit in his companion's bag or box and orders his partner to keep it, and the latter carries the bag and it is lost, he is not liable for it ("Bada'i' as-Sana'i'", 6/207-208; "al-Ikhtiyar", 3/30; "Mukhtasar al-Waqi'a", 2/132; "al-Jawhara an-Nayyira", p. 150; "al-Lubab", 1/644; "Majma' ad-Damanat", 1/211).
The Malikis said: it is permitted for the depositary to place the deposit with his wife, his son, his slave girl or his servant accustomed to that, by reason of the length of their residence with him and the trust placed in them, with no liability upon him if the deposit perishes or is lost with them; the depositary is believed in handing it over to his family, and he swears if the wife denies receiving it from him, if he is suspected. It is also said: unconditionally; if she misappropriates it, he is fined, and the owner of the deposit has no right to administer oaths to the depositary's family, unless the depositary is insolvent, in which case the owner of the deposit may administer the oath to the wife. If those mentioned are not accustomed to receiving deposits, such as depositing with his wife upon marrying her, with his slave girl upon buying her, or with the servant upon hiring him, he is liable for it if it perishes or is lost ("at-Taj wal-Iklil", 4/266; "Mawahib al-Jalil", 7/232; "Tathbir al-Mukhtasar", 4/350-351; "Sharh Mukhtasar Khalil", 6/112; "ash-Sharh al-Kabir ma'a Hashiyat ad-Dasuqi", 5/127; "Hashiyat as-Sawi", 8/162).
The Hanbalis said: if he hands the deposit to one whose custom it is to keep it for him among his family, such as his wife, his boy or his steward, he is not liable for it; for he kept it the way he keeps his own wealth, which resembles keeping it himself, as if he handed the livestock to the shepherd or the animal to his boy to water it; the stranger is excluded, since handing it to him does not count as safekeeping on his part ("al-Mughni", 6/302; "al-Insaf", 6/324; "Kashshaf al-Qina'", 4/211; "Manar as-Sabil", 2/227).
The Shafi'is, for their part, hold that it is not permitted for the depositary to deposit the deposit with another, even if it is his wife, his child or his slave, without the permission of the owner of the deposit; if he deposits it with them, he is liable for it, because the depositor did not accept the trustworthiness of another nor his hand: he deposited with someone in whom the depositor did not place his trust, and he is therefore liable for it as if he had deposited it with a stranger ("al-Muhadhdhab", 1/361; "al-Bayan", 6/487-488; "Rawdat at-Talibin", 4/578-579; "an-Najm al-Wahhaj", 6/349, 354; "Mughni al-Muhtaj", 4/135-136; "ad-Dibaj", 3/110-112).
The jurists differ when the deposit is shared between two men or more and deposited with a person, and one of the partners requests his share of the deposit during the absence of his partner: is it permitted for the depositary to hand him his share of the deposit, or not? Three views stand, after their agreement that he does not hand him the whole deposit. The first view, which is the madhhab of the Shafi'is and of the Qadi among the Hanbalis: it is not permitted for him to hand him his share of the deposit even if he requests it, except through the judge, by referring the matter to him so that he may divide it and hand him his share of it if it divides; for the two partners agreed on the depositing, so likewise in the recovery, and the deposit needs a division that requires a ruling or an agreement, which the depositary does not possess ("Rawdat at-Talibin", 4/595; "Asna al-Matalib", 3/84; "Mughni al-Muhtaj", 4/149; "Kashshaf al-Qina'", 4/224; "Sharh Muntaha al-Iradat", 4/254-255).
The second view, which is the view of Imam Abu Hanifa (may Allah have mercy on him): handing over to one of the two partners of the deposit is not permitted in any case, whether the deposit is fungible, such as what is weighed, measured or counted, like dinars and dirhams, or whether it is of valued kind; if he hands something to him during the other's absence, he is liable for it, and the judge may not order him to hand anything to him as long as the absent one has not come. The reason for Abu Hanifa's view is that if the depositary hands something to the present partner, it can only be in one of two ways: either he hands him from both shares together, or he hands him from his share alone. The first has no basis, for handing over the absent one's share to him is legally impossible; the second is not possible either, because his share is dispersed in the whole, the deposit being shared between the two of them and distinguishable only by division; and dividing over the absent one is not permitted, because his share is in the undivided part, and it cannot be handed to him, for the handing over takes place in the specific separated item, which the undivided part is not; his right in the undivided part and in the specified separated item comprises two rights, and his right is distinguished only by division, and the depositary has no authority to divide, unlike the shared debt, for he is demanded to hand over his right, debts being settled by their like ("Tuhfat al-Fuqaha", 3/173; "Bada'i' as-Sana'i'", 6/210; "al-Hidaya", 3/217; "Tabyin al-Haqa'iq", 5/80; "al-Jawhara an-Nayyira", 4/160; "al-Ikhtiyar", 3/32; "al-Lubab", 1/647; "Mukhtasar al-Waqi'a", 2/133-134).
The third view, which is the view of the Hanbalis and of the two Companions among the Hanafis, Abu Yusuf and Muhammad: the dividing of the deposit when it is fungible and not diminished by division: if one of the two partners requests his share of the deposit during the absence of the other partner, or in his presence but with his refusal to take it, the depositary must hand it to him; if he refuses to hand over his share, he is liable for it. What is not fungible, such as valued goods, may not be handed to him. The Hanbalis said: if two persons deposit with him something measurable or weighable that divides obligatorily, since it is not diminished by being separated, and one of the two requests his share of the deposit because of his partner's absence, or his presence and refusal to take it, or his refusal to authorize his companion to take his right, the depositary hands his share to him obligatorily, because the share of one of the two partners can be distinguished from that of the other without loss or harm; if one of the two requests his share, he must hand it to him as if it were already separated. What is not fungible: his share may not be handed to him, because fairness in its division cannot be guaranteed, its need for valuation making it a conjecture and an estimation ("al-Muharrar fil-Fiqh", 1/364; "al-Insaf", 6/349; "Kashshaf al-Qina'", 4/224; "Sharh Muntaha al-Iradat", 4/254-255; "Matalib Uli an-Nuha", 4/174).
The two Companions among the Hanafis said: if the deposit is undivided between two men and one of them comes requesting his share, it is divided and his share is handed to him. The reason for their view is that he requested his share alone, so he is ordered to be handed it, because he acts upon his own property without the presence of the absent one, as when two men have a shared debt upon a man and one of them comes requesting his share of the debt: he hands him his share according to what we said; it is the same here; and this is because he demands of him the handing over of what he handed him, namely the half which is his: for this reason he has the right to take it if he gets hold of it, and likewise the depositary is ordered to hand it to him. Al-Kasani (may Allah have mercy on him) said: this does not constitute a valid division over the absent one, without dispute; even if the remainder perishes in the depositary's hand and the absent one then comes, he has the right to share with his companion in what was taken, according to them all. And if what was taken perishes in the hand of the holder, and the absent one then comes, the holder may not share with his companion in the remainder ("Bada'i' as-Sana'i'", 6/210). The dispute between Abu Hanifa and the two Companions concerns the fungibles; if the deposit is of valued kind, such as clothes, slaves and animals, he is liable for it by consensus ("Majma' ad-Damanat", 1/213).
Before the second case, the sheet reports the end of the first case, that of the acknowledgment to one of the two. The Hanbalis said: likewise, if he acknowledges the deposit to the second after having acknowledged it to the first, it is handed over to the first, because he acquired it by his acknowledgment, and its value is imposed upon the depositary for the second ("al-Mughni", 6/310). an-Nawawi said: if he has wealth in his hand and two men come, each claiming to be its depositor, if he acknowledges to one of them this specific thing, he gives it to him; must he also swear an oath for the other? The question rests upon: if he acknowledged to Zayd a thing and then acknowledged it to 'Amr, does he pay 'Amr if we say no? Then no; and if we say yes, the oath is presented to him: if he swears, the other's claim lapses, and if he refuses to swear, the other swears. Then: does the wealth remain suspended between them until they come to an agreement, or is it divided between them as if he had acknowledged it to both, or does the defendant pay the value for it? Three views from Ibn Surayj, and Ibn as-Sabbagh said that the madhhab is the third ("Rawdat at-Talibin", 4/599).
Second case: the acknowledgment of the deposit to the two together. The Hanbalis said: if two persons claim the deposit and he acknowledges it to both of them together, it is between the two of them, as if it were in their hands and they were claiming it against each other; the oath is required of him for each of them for half of it; if he refuses the oath, its equivalent becomes due from him and the two of them divide it; if he refuses the oath for one of them without the other, the equivalent of its half is due to the one for whom he refused to swear ("al-Mughni", 6/310; "al-Qawa'id" by Ibn Rajab, 402; "al-Mubdi'", 5/246; "al-Insaf", 6/346; "Kashshaf al-Qina'", 4/223-224; "Sharh Muntaha al-Iradat", 4/253). The Shafi'is said: if he has wealth in his hand and two men come, each claiming to be its depositor, and the depositary says: it is for you both, it is like wealth in the hands of two persons claiming it against each other: if one of the two swears, the judgment is for him, and the other has no claim against the depositary because of his refusal; if they both refuse or both swear, it is placed between them, and the ruling of each of them in the other half is like the ruling in the whole with respect to the one to whom he did not acknowledge it ("Rawdat at-Talibin", 4/599-600).
Third case: acknowledging the deposit to one of the two without knowing which of them is its owner. The jurists differ when the deposit is in his hand and two persons dispute over it, each of them claiming that it is his property and that he deposited it with him, while the depositary does not know which of the two is its owner, and says: one of you two deposited it, but I do not know which. The Hanafis said: if he has a thousand dirhams in his hand and two men come, each of them claiming that he deposited them with him, and the depositary says: one of you two deposited them and I do not know which, this is, in origin, one of two cases: either the two claimants agree to take the thousand and to have it between them, or they do not agree and each of them claims that the thousand is his alone.
If they agree on that, the thousand is theirs, and the depositary may not refuse to hand it over to them, because he acknowledged that the thousand belongs to one of them; and when they agree that it be between them, they may not be prevented from that; and they may not administer an oath to the depositary after the amicable settlement. If they do not agree and each of them claims that the thousand is his, he hands nothing to either of them, because of the ignorance of the one who acknowledged the deposit; and each of them may administer an oath to the depositary. If they both administer the oath to him, the matter has three possible outcomes: that he swears for both of them, that he refuses for both of them, or that he swears for one of them and refuses for the other.
If he swears for both of them, their dispute ceases immediately until evidence is established, as in the rest of the rulings. May they still agree to take the thousand between them after the oath? This is the well-known dispute between Abu Hanifa and Abu Yusuf on the one hand, and Muhammad on the other: according to the two Companions they may not, and according to Muhammad they may; this is the question of the amicable settlement after the oath. If he refuses for both of them, the thousand is divided between them in halves, and he guarantees another thousand between them, so that each of the two obtains a full thousand; for each of the two claims that the whole thousand is his; when he refuses for them, and refusal is a grant or an acknowledgment, it is as if he had granted each of the two a thousand or acknowledged a thousand to each of them: a thousand is therefore awarded between them, and he also guarantees another thousand to be between them, so that each of the two obtains a full thousand. If he swears for one of them and refuses for the other, the thousand is awarded to the one for whom he refused, and nothing is due to the one for whom he swore, for the refusal is a proof for the one for whom one refuses, not for the one for whom one swears ("Bada'i' as-Sana'i'", 6/210-211).
The Malikis said: if two men claim the deposit and the depositary says: it belongs to one of you two, but I have forgotten and do not know which of you it is, they both swear and it is divided between them in halves; likewise if they both refuse to swear, it is divided between them; if one of the two swears and the other refuses, it belongs entirely to the one who swore, with nothing for the one who refused; unlike the debt claimed by two men, where the debtor says that it belongs to one of the two and that he does not know which: he pays each of them after their oath, for the deposit is a trust, and the debt weighs upon his liability. If he says: the deposit does not belong to either of you, this is not accepted, and it remains between them after their oath if it still exists in the depositary's hand; for if he says: I returned it to one of them, and it is not established which of the two, he guarantees its amount to each of them, provided its amount is uniform.
Indeed, if the amounts differ, for example one deposited a hundred and the other fifty, and he forgot to whom the hundred belongs while each of the two claims it, Sahnun said: they both swear over the hundred and divide it between themselves, and the fifty that remains remains in the depositary's hand, for it has no claimant. Some of our companions said: he pays each of them a hundred after their oath. Ibn al-Qasim said in "al-'Utbiyya", concerning the one who has in his hand a deposit of two hundred dinars and to whom come two men, each claiming it, without his knowing whose it is: it remains between them after their oaths; whichever of the two refuses to swear gets nothing, and it belongs entirely to the one who swears; as for the debt, he pays each of them a hundred ("at-Taj wal-Iklil", 4/282; "Sharh Mukhtasar Khalil", 6/119-120; "ash-Sharh al-Kabir ma'a Hashiyat ad-Dasuqi", 5/141; "Tathbir al-Mukhtasar", 4/364; "Hashiyat as-Sawi 'ala ash-Sharh as-Saghir", 8/179).
The Shafi'is said: if the deposit is in his hand and two persons claim it, and the depositary says: it belongs to one of you two and I have forgotten which one, if we hold the depositary responsible for the forgetting, he is liable; otherwise, one looks: if they believe him, no dispute takes place between them and him, the dispute being between the two of them: if they agree on something, so be it; otherwise the wealth is placed as if it were in their hands, they claiming it against each other: this is the sound view. It is also said: it is like wealth in the hand of a third person which they claim against each other, because no hand is established for either of them. According to the first view, if each of them establishes evidence, or swears, or refuses to swear, the wealth is between them; if one of them establishes evidence, or swears, and his companion refuses, the judgment is for him.
an-Nawawi (may Allah have mercy on him) said: according to the second view, if each of them establishes evidence, the rule of the two conflicting evidences applies; if they both refuse or both swear, the wealth is suspended between them. Whether we adopt the first or the second view: is the wealth left in the hand of the defendant until their dispute is resolved, or is it taken from him? Two views, the more apparent of which is the second, the one al-Baghawi and others decided. Al-Mutawalli said: the two views apply when one of them requests the removal and the other the leaving; if they agree on one of the two, the judge follows their opinion.
If he is declared a liar in his claim of forgetting and they claim that he knows, the one confirmed by his oath prevails, and a single oath suffices him to deny the knowledge, for the thing claimed is one, namely his knowledge. May the judge administer an oath to him denying the knowledge when the two parties do not claim it? Two views. Then, if he swears, the ruling is as if they had believed him in the forgetting; it is also said that the wealth is removed from his hand here even if it is not removed there, because he is a traitor in their eyes by his claim of forgetting. If he refuses to swear, the oath is returned to them: if they both refuse, the wealth is divided between them or suspended until they come to an agreement, as before; if only one of the two swears, the judgment is for him; if they both swear, two views are reported; it is said that the wealth is suspended until they agree, and the more apparent view is that it is divided, because it is in their hands; on this basis the value is also imposed and divided between them, because each of the two established, by the oath of return, the whole item and took only half of it: this is the sound and most widespread view when the depositary refuses to swear.
It is also said: he does not pay the value together with the item if they both swear. It is also said: the oath is not returned to them because of his refusal; rather the wealth is suspended, on the basis that if they had both sworn, the wealth would have been suspended between them, so that presenting the oath would have no meaning. When the oath is returned to them, is the lot drawn between them, or does the judge begin with whom he wills? Two views, the sounder of which is the second, as related by as-Sarakhsi in "al-Amali". If they both swear and he divides the item and the value between them: if neither contests the other, there is nothing to discuss; if one contests the other and one of them establishes the evidence that the whole item is his, we hand it over to him and return the value to the depositary; if there is no evidence and his companion refuses the oath, so that he swears and acquires the item, he returns the half of the value he took, and the one who refused to swear does not return what he took, because he acquired it by his oath against the depositary, and the one who took the item did not come back to claim against him, and his refusal was against his companion, not against the depositary. It is stated explicitly in "al-Wasit" that the one who refuses does not return, whether the item was handed over by evidence or by oath ("Rawdat at-Talibin", 4/600-601; "al-Wasit", 5/495; "Mughni al-Muhtaj", 4/151).
The Hanbalis said: if two persons claim the deposit and he says: it belongs to one of them and I do not know which one, if they believe him and acknowledge his ignorance to him, or remain silent about believing him or denying him, the one entitled to the deposit is determined and there is no oath upon him, for there is no dispute; and the lot is drawn between them: for whoever the lot comes out, the deposit is handed over to him with his oath. If they both declare him a liar, or one of the two does, by saying: you know which of us is its owner, he swears for them a single oath that he does not know which of them is its owner, and the lot is drawn between them: for whoever the lot comes out, he swears that it is his, since his ignorance is possible, and he takes it by virtue of the lot. If the depositary refuses the oath that he does not know its owner, he is ruled against by the refusal and required to designate its owner; if he refuses to designate, he is compelled to the value if it is of valued kind, or to the like if it is fungible: the value, the like or the item is taken, and they draw lots between them over it ("al-Mughni", 6/310; "al-Qawa'id" by Ibn Rajab, 402; "al-Mubdi'", 5/246; "al-Insaf", 6/346; "Kashshaf al-Qina'", 4/223-224; "Sharh Muntaha al-Iradat", 4/253).
The vizier Ibn Hubayra (may Allah have mercy on him) said: they differed when he acknowledges a deposit in his hand to two persons without knowing which of them is its owner. al-Shafi'i and Ahmad said: his statement is accepted without an oath if they do not claim against him knowledge of its owner; if they claim against him the knowledge and he denies it, he is made to swear. Abu Hanifa said: he is made to swear for each of the two in any case, definitively, that he did not deposit the wealth with himself. Malik said: oaths are administered to them and the deposit is handed over to them, and they divide it between themselves; does he pay them its like? Two narrations.
They differed over what is done with it in both cases. Abu Hanifa said: it is suspended until their situation becomes clear, unless he refuses the oath for one of the two, in which case it is awarded to him. Ahmad said: the lot is drawn between them, and the one upon whom the lot falls swears that it is his, and it is handed over to him. al-Shafi'i said: the lot is not drawn, and his view differs over what is done with it, according to two sayings: once he said that it is removed from the depositary's hand, and once he said that it remains in his hand until its situation becomes clear ("al-Ifsah", 2/7-8).
Ibn al-Mundhir (may Allah have mercy on him) said: they differed concerning the depositary who finds it hard to know who deposited with him, and whom two men claimed. al-Shafi'i used to say: he swears by Allah that he does not know who deposited with him, and the thing is suspended between them until they come to an agreement, or evidence is established for the one to whom it belongs. There is a second view: the deposit is divided between them in halves, and he guarantees them its like, because he destroyed what was entrusted to him through his ignorance: this is the view of an-Nu'man (Abu Hanifa), Ya'qub and Muhammad. Ibn Abi Layla said: it is between them in halves ("al-Ishraf", 6/339).