Islamic Fiqh > Endowments (waqf) and property > Wadi'a: the deposit of trust > The second case: mixing the deposit with property that cannot be distinguished from it, or only with difficulty
Contents
Updated on 25 September 2026 at 6:57 PM
This part belongs to the full section: All sections of this part.
This page brings together fifteen sheets of the Legal Encyclopedia (al-Mawsua al-Fiqhiyya) devoted to the mixing (khalt) of the wadi'a, that is, property entrusted as a deposit, its contamination and its loss. It examines what happens when the custodian mixes the deposit with other property so that distinguishing and separating the two becomes impossible or difficult, with or without the authorization of the depositor, as well as the case of a third party carrying out such mixing. Also covered are: destroying the deposit at its owner's order, the duty to ward off the danger threatening it, accepting the custodian's word when he claims to have returned it, denial of the deposit (juhud) and its conditions, restitution to the owner's agent, and finally the death of the custodian who is ignorant of the deposit or of one who does not know the deposit's owner. Each sheet quotes the positions of the four schools, with takhrij and classical references.
The custodian may mix the deposit (wadi'a) with similar or dissimilar property, to the point that distinguishing and separating one item from the other becomes impossible or difficult. The jurists distinguish two main situations: mixing carried out with the authorization of the deposit's owner, and mixing carried out without his authorization. Each has its own rule, set out below.
First case: mixing with the authorization of the deposit's owner. If the custodian mixes the deposit with property that cannot be distinguished from it, whether his own property or that of someone else, the Hanbalis state that no liability (daman) falls upon him, whether he mixed it with his own property or with someone else's; for he did what he was ordered to do on behalf of the owner, and thus acts as the owner's deputy over that property.
Ibn Qudama (may Allah have mercy on him) writes in Al-Mughni: it is transmitted from Ahmad, concerning a man who was entrusted with ten dirhams and to whom another entrusted ten dirhams, ordering him to mix them: he mixed them and the dirhams were lost, and nothing is due from him. If one of the two ordered him to mix his dirhams and the other did not authorize him, he is liable for the dirhams of the one who did not order it, to the exclusion of the other's. (Al-Mughni 6/301)
Second case: mixing without the authorization of the owner. This mixing takes several forms, the most notable being the following:
Form a: mixing the deposit with his property or someone else's, when it is not similar to it. The jurists agree: if the custodian mixes the deposit with property that is not similar to it in genus (jins) or quality, drawn from his own property or that of another, such as mixing wheat with barley, he bears liability, because he thereby commits a transgression (ta'addi). He has caused the 'ayn (the item itself) to disappear through the mixing, so that he can no longer extract it; and when distinction is no longer possible, the owner becomes unable to benefit from the deposit. The mixing therefore constitutes on his part a destruction (itlaf), and he is liable.
They differed, however, over mixing it with property of the same genus and quality, such as wheat with similar wheat or gold with similar gold: is he liable or not? The majority of jurists, the Hanafis, Shafi'is and Hanbalis, hold that if he mixes the deposit with his property or another's in a way that makes distinguishing the two properties impossible, he is liable: whether he mixed it with similar, inferior or superior property, of the same genus or another genus, whether it was a mixing of adjacency (mujawara), such as wheat with wheat or wheat with barley, or a mixing of admixture (mumazaja), such as vinegar with oil.
The reason is that he becomes, by legal effect, a consumer of the deposit through the mixing, since it is impossible to return the property to its owner afterwards; when distinction is no longer possible, the owner cannot benefit from the deposit, so the mixing constitutes a destruction on his part, and he is liable. (Bada'i' al-Sana'i' 6/213, Mukhtasar Ikhtilaf al-'Ulama' 4/189, Al-Ikhtiyar 3/30, Al-Taj wa-l-Iklil 5/258, Al-Sharh al-Kabir with Hashiyat al-Dasuqi 5/121, Tahbir al-Mukhtasar 4/344, Al-Muhadhdhab 1/361, Al-Bayan 6/488-489, Rawdat al-Talibin 4/586, Al-Najm al-Wahhaj 6/369, Mughni al-Muhtaj 4/147, Al-Mughni 6/303, Sharh al-Zarkashi 2/297, Kashshaf al-Qina' 4/215)
The Hanafis state that mixing takes several forms. The first is mixing a genus with its like, such as wheat with wheat, barley with barley, dirhams with dirhams, eggs with eggs, or black with black. The second is mixing one genus with another, such as wheat with barley or vinegar with oil. The third is mixing a liquid with its like.
The Hanafi jurists differed, however, over whether the owner's right ceases over the mixed property, in three opinions. The first is Abu Hanifa's: the owner's right ceases over the deposit in every case, whether liquid or not, the mixed property becomes the mixer's property, and he owes the depositor the equivalent of his right; this is the position adopted for the fatwa among the Hanafis. The second is Muhammad ibn al-Hasan al-Shaybani's: the custodian becomes the deposit's owner's partner through an optional co-ownership; if the property perishes or is lost without transgression or negligence on his part, nothing is due from him; Abu Yusuf followed this view for what is not liquid. The third is Abu Yusuf's, for liquids: the lesser follows the greater, giving weight to the predominant factor, that is, the mixed property becomes the property of the one whose property was more abundant, and he owes the other his right. (Bada'i' al-Sana'i' 6/213, Al-Mabsut 11/110, Al-Ikhtiyar 3/30, Al-Jawhara al-Nayyira 4/154-155, Al-Lubab 1/644-645, Mukhtasar al-Wiqaya 2/133, Qurrat 'Uyun al-Akhyar 2/248, Al-Bahr al-Ra'iq 7/276, Durrar al-Hukkam 2/262, Sharh al-Majalla by al-Atasi 3/269, Murshid al-Hayran 3/1222-1223)
The Malikis hold that if he mixes the deposit with property of the same genus and quality, such as wheat with similar wheat or gold with similar gold, no liability falls upon him, provided the mixing was done for safeguarding (ihraz), that is, care and protection, and not with the intent of appropriating it, in which case he is liable; for as long as each lot remains distinct, the loss of one of them falls upon its owner alone. If he then mixes wheat or the like with its like, or dirhams or their equivalent with their like, for safeguarding, and part of it perishes, the loss is divided between the two according to each one's share: if what disappeared equals one part in three (one part for one, two for the other), the holder of the single part bears its third and the holder of the two parts bears two-thirds of it, according to the relied-upon position; unless the lost portion is identified as belonging to one of the two in particular, in which case it is his own misfortune.
It is stated in the Mudawwana: one to whom dinars or dirhams are entrusted who mixes them with similar ones and then loses all the property is not liable; if part is lost, what was lost and what remains are apportioned between them, for your dirhams are not distinguishable from his; and if each coin were known individually, the misfortune of each would fall upon its owner, and mixing would not change that. If wheat is entrusted to him and he mixes it with similar wheat for safeguarding and protection, and all of it perishes, he is not liable: for the depositor accepts such a thing from the outset, and it may be hard on the custodian to keep every item deposited separate. Moreover, if the custodian were to take the deposit and consume it, then return its equivalent, and that equivalent were lost after his restitution, nothing would be due from him: mixing the deposit with its like is therefore like returning its like, and he is not liable for its loss; if the properties are different, he is liable. Likewise, if you mix your wheat with his barley and everything is lost, he is liable, for he has already caused the property to disappear through the mixing, even before its actual perdition, distinction having become impossible; and this is not comparable to a single species, in kind or as food. (Al-Taj wa-l-Iklil 5/258, Mawahib al-Jalil 7/227-228, Al-Sharh al-Kabir with Hashiyat al-Dasuqi 5/121-122, Tahbir al-Mukhtasar 4/344)
The jurists differed over the custodian who mixes the deposit with another item belonging to the owner of the deposit itself: is he liable or not? The Shafi'is, in the sounder of their two positions, and the Hanbalis in one position, hold that the custodian who mixes the deposit with another deposit of the depositor or with other property belonging to him, so that distinguishing the two becomes impossible, is liable; for he thereby commits a transgression, the depositor not having consented that one item be mingled with the other.
The Shafi'is and Hanbalis, in their second position, hold that no liability falls upon him: all of it is his property, and he may have no interest in separating them. This divergence between the two Shafi'i positions presupposes that the deposit was handed over to him unsealed; if the two items are sealed, he is liable without dispute by the mere act of breaking the seal, such as opening a locked chest. This differs from untying a thread that ties the mouth of a bag or a bundle of cloth, for that thread is intended only to prevent dispersal, not to conceal the contents. (Al-Muhadhdhab 1/361, Al-Bayan 6/489, Rawdat al-Talibin 4/586, Al-Najm al-Wahhaj 6/369, Mughni al-Muhtaj 4/148, Al-Dibaj 3/120, Al-Mubdi' 5/240, Al-Furu' 4/362, Sharh Muntaha al-Iradat 4/244)
Imam Ibn al-Mundhir (may Allah have mercy on him) said: "All the scholars whose statements have reached us agree that, if the deposit consists of dirhams that become mixed with other property, or a third party mixes it, and they then perish, no liability falls upon the custodian." (Al-Ishraf 6/332-333, Al-Ijma' 562)
They differed, however, over who bears the liability. Abu Hanifa and the Hanbalis hold that the third party, whether a stranger or a member of the custodian's household, who mixes the deposit with other property, is liable: the transgression proceeds from him, and liability falls upon him as if he had destroyed it; no liability falls upon the custodian, the mixing not proceeding from him in reality or by legal effect. The Two Companions, Abu Yusuf and Muhammad, say the deposit's owner has a choice: if he wishes, he holds the mixer liable, even if he is a minor, for this is a transgression against people's property, like one who breaks another's glass vessels and is liable for it; if he wishes, he takes the item itself, if the two have become co-owners. (Hashiyat Ibn 'Abidin 8/353, Al-Mughni 6/301, Kashshaf al-Qina' 4/214)
Fourth case: the deposit becoming mixed with the custodian's property without any fault of his. The jurists agree: if the deposit becomes mixed with the custodian's property without any act or negligence on his part, no liability falls upon him. Thus, if the bag splits inside his chest and mixes with his dirhams, he is not liable, the liability-generating act being absent; and if the property had perished in reality without transgression or negligence on his part, he would not be liable: its mixing with other property is even more deserving of incurring no liability. (Al-Mabsut 11/110, Bada'i' al-Sana'i' 6/213, Al-Jawhara al-Nayyira 4/155, Al-Lubab 1/645, Al-Sharh al-Kabir with Hashiyat al-Dasuqi 5/121, Tuhfat al-Muhtaj 8/347-348, Al-Mughni 6/301, Kashshaf al-Qina' 4/215)
The Hanafis state that the mixed property becomes common to both: if part of it perishes, it perishes from the whole of their property, and what remains is divided between them according to each one's original share; for neither of them may make the loss fall preferentially upon the other's share. The principle for common property is that when part of it perishes, it perishes upon the entire co-ownership, and what remains remains upon the entire co-ownership, the lost property being treated as though it had never existed. (Al-Mabsut 11/110, Bada'i' al-Sana'i' 6/213, Al-Jawhara al-Nayyira 4/155, Al-Lubab 1/645)
The Hanbalis say: if the deposit becomes mixed with other property without negligence on the custodian's part, no liability falls upon him, for if the property could perish in that way he would not be liable; its mixing is therefore even more deserving of imposing nothing. Al-Buhuti says: if part of it is lost, it is deemed, according to the apparent wording of Imam Ahmad, to come from the custodian's property; al-Majd mentioned this in his commentary, while al-Qadi relates in Al-Khilaf that the two become partners. Al-Majd says: it is not improbable, on this view, that the loss be borne by both. (Kashshaf al-Qina' 4/215, Al-Mughni 6/301, Taqrir al-Qawa'id by Ibn Rajab 1/180)
Imam 'Ala' al-Din al-Kasani (may Allah have mercy on him) said: "If two men each entrust him with a thousand dirhams and the custodian mixes the two properties in an indistinguishable way, the two depositors have no means of recovering the dirhams in kind; the custodian owes a thousand to each of them, and the mixed property belongs to him: this is Abu Hanifa's position." Abu Yusuf and Muhammad say: "The two owners have the choice: if they wish, they divide the mixed property in half; if they wish, they hold the custodian liable for two thousand." This same dispute applies to all measured and weighed goods mixed genus with genus in an indistinguishable way, such as wheat with wheat, barley with barley, or oil with oil.
The argument of the Two Companions is that the deposit subsists in its own entity, but the owner is prevented from accessing it by the accident of mixing: if they wish, they divide, in consideration of the property's subsistence; if they wish, they invoke liability, in consideration of the impossibility of access. Abu Hanifa's argument is that once the two properties are mixed in an indistinguishable way, each depositor becomes unable to benefit from the mixture: the mixing therefore constitutes a destruction of the deposit on his part toward each of them, hence the liability. This is why the option of holding him liable is open to them; and that option is not established except through the presence of destruction, which proves that the mixing occurred as a destruction on his part.
If one man entrusts him with wheat and another with barley and he mixes them, he is liable to each for the equivalent of his right according to Abu Hanifa, for the mixing is a destruction. According to the Two Companions, the owners may take the item itself, sell it, and divide the price between the value of the wheat mixed with the barley and the value of the barley not mixed with the wheat: for the value of the wheat is diminished by mixing with the barley, while the holder of the barley deserves the price because his right subsists in the item itself; he deserves the item itself, but not the barley's value increased by the mixing with wheat, that increase belonging to another. (Bada'i' al-Sana'i' 6/213)
Al-Mawwaq the Maliki (may Allah have mercy on him) transmits from al-Lakhmi (may Allah have mercy on him): if a man holds two deposits, wheat and barley, and mixes them, he is liable to each for the like of what he mixed for him. If the two owners choose to lift the transgression from him and take the mixed property as partners, that is valid according to Ibn al-Qasim and Ashhab, contrary to Sahnun's view. Ibn al-Qasim adds: "Their partnership is upon the value, meaning the value of the defective wheat and the sound barley; they may not divide the mixed property itself, but they divide the price." According to Ibn Rushd, it is the same whether he mixed them with transgression or without.
Ibn Rushd states: what the ruling requires is that they divide it between them mixed, upon the values of the wheat and the barley on the day of the mixing, the wheat being valued sound, contrary to Sahnun's view that the wheat is valued defective and the barley sound. His statement "it is sold and they divide the price" is a matter of istihsan: nothing prevents dividing the foodstuff by value; and if dividing the foodstuff itself by value were not permitted, dividing its price would not be permitted either, for it is only sold as their property, each taking the price of what was his; and they may not divide it by measure.
One should consult on this the Nawazil of Ibn Rushd, the second notice on the deposit from al-Lakhmi, and the first notice on the deposit from Ibn Yunus. Note also their permission to sell the wheat mixed with the barley, permission valid because the mixing did not proceed from them. See likewise the mixing of crops at harvest time in the first notice of muzara'a from Ibn Salmun; it is related from Ibn Habib that they divide the harvest in proportion to each one's seed.
In the Rasm al-Mufti of al-Halaf, from the narration of 'Isa: each of the two swears to what he sowed, and they divide the food according to that count. Ibn Rushd said: "This is as he said; its meaning, in my view, is that they reconcile with one another after each has claimed against the other a superiority in the work." Ibn Abi Zayd, on the division of barley and olives when mixed, said the owners should appraise it among themselves by a known amount; if they do not know it, nothing remains but mutual settlement.
Al-Burzuli said: "This often happens with us in Tunis: the floods bring olives into those valleys, and it has been related thus; the same applies to crops and foodstuffs mixed by the hands of thieves, and to what is related concerning ships when foodstuffs become mixed in them." In the Turar of Ibn 'Atin: if flax becomes mixed in a valley by a flood or otherwise, and each owner cannot recognize his property, the owners are released from one another in that matter.
Concerning consumable food, note what has preceded: if one takes what he is certain is less than his own food, that is permitted, in agreement with what Ibn Habib related of dividing the mixed harvest by the seed, and with what Ibn Rushd related of lightening the division of mixed food by value. But if the mixing took place with transgression, does all the foregoing justify those who mix their milk taking from the cheese the amount he is certain would come out of his sheep's milk if he milked them separately? I have expounded at length in Sunan al-Muhtadin that undertaking a thing by expansive interpretation (ta'wil) is not like undertaking it openly. Whoever eats what is unlawful believing it lawful is rewarded for his intention, is not punished for the act, and his heart is not wronged by it; whoever undertakes what is purely lawful believing it doubtful, his heart hardens and darkens over it; and even if he believes in its prohibition, that is a wound in his religious integrity, along with this estrangement from others even though the thing is purely lawful in itself. (Al-Taj wa-l-Iklil 4/258, 260)
The jurists lay down that it is not permitted for a man to destroy another's property, even with its owner's authorization. If, therefore, the deposit's owner says to the custodian: "Destroy my deposit, throw it into the sea, or burn it," he is not permitted to do so, for Allah the Most High forbade the destruction of property.
The jurists differed, however: if he proceeds to destroy it with his owner's authorization, is he liable for it? The majority of jurists, the Hanafis, the Malikis in one opinion, the Shafi'is and the Hanbalis, hold that no liability falls upon him, because of the authorization the owner granted him. The right over the deposit belongs to its owner, and he relinquished it when he authorized its destruction, so that it is as if he had delegated him in a permitted matter; the custodian therefore owes him nothing. It is added that prohibition has a lasting effect only upon the right of Allah the Most High, which is sin; as for the human being's right, it does not survive, since he authorized its being done away with. (Bada'i' al-Sana'i' 7/236, Al-Banaya Sharh al-Hidaya by al-'Ayni 9/337, Sharh al-Zarqani on Khalil 6/204, Al-Ishraf 6/344-345, Al-Hawi al-Kabir 6/79, Al-Muhadhdhab 1/360, Rawdat al-Talibin 4/590, Al-Mughni 6/309, Matalib Uli al-Nuha 4/46)
The Malikis as the school's position, and Ibn al-Mundhir among the Shafi'is, hold that the custodian may not destroy the deposit even if its owner authorizes him to destroy it; if he destroys it, he is liable for it, by virtue of the obligation to preserve property, like one who is told: "Kill me or kill my son," and does so. The contract of deposit indeed imposes preservation upon the custodian, so that the authorization to destroy counts as a condition contradicting the contract's requirement and is annulled. (Sharh al-Zarqani on Khalil 6/204, Hashiyat al-Dasuqi on Al-Sharh al-Kabir 5/121, Hashiyat al-Sawi on Al-Sharh al-Saghir 8/147)
Ibn al-Mundhir (may Allah have mercy on him) adds: he is forbidden to destroy property outside circumstances of necessity, for that is forbidden and its doer is a sinner, and he must be placed under legal interdiction (hajr), by the Prophet's (peace and blessings of Allah be upon him) prohibition of squandering property; one who orders what is not his, his order and his silence are the same. And if nothing were due here, then a Muslim who said to his brother Muslim, "Strike my neck," and who cut off his head, would owe nothing: he would have done what he was ordered; yet the people of knowledge agree that such a man is a wrongful killer. Allah has made the Muslim's property and blood inviolable, and the Prophet (peace and blessings of Allah be upon him) joined the two in the prohibition. (Al-Ishraf 6/344-345)
If, however, the owner had waived liability before the destruction, Ibn al-Qayyim relates consensus: no liability. Imam Ibn al-Qayyim (may Allah have mercy on him) said: "If he authorizes him to destroy his property and waives liability before the destruction, he does not bear it, by consensus." (Bada'i' al-Fawa'id 1/9)
It appears, however, and Allah knows best, that the Malikis and Ibn al-Mundhir did not distinguish between waiving liability and anything else, as their statements already cited show. The jurists agree that the custodian must preserve the deposit; most of them also state that he must ward off perdition from it: if a fire breaks out in his house and he is able to move the deposit, it is incumbent upon him to move it and ward off the peril, as the majority of jurists have stated.
Imam al-Kasani (may Allah have mercy on him) said: "As for what changes the object of the contract from the state of trust (amana) to that of liability (daman), it is of several kinds. Among them: neglecting preservation; for by the contract he undertook to preserve the deposit such that, if he neglects its preservation until it perishes, he owes the equivalent, by the way of suretyship (kafala); this is why, if he sees someone stealing the deposit while able to stop him, he is liable, for having abandoned the preservation to which the contract bound him; this is the meaning of our masters' saying: the custodian is bound by the contract's liability." (Bada'i' al-Sana'i' 6/211)
Abu Muhammad ibn Ghanim ibn Muhammad al-Baghdadi the Hanafi (may Allah have mercy on him) said: "If the custodian's house is burned and he does not move the deposit to another place while able to, he is liable, since he can preserve it by transporting it elsewhere." (Majma' al-Damanat 1/212, Tanqih al-Fatawa al-Hamidiyya 5/155)
Imam al-Mawardi (may Allah have mercy on him) said: "When necessity requires removing the deposit from the secure place the owner designated for its preservation, because of a threatening fire or a fire breaking out, this falls into two cases: the first, that the depositor specified it should not be removed in these circumstances; the second, that he did not specify it. If he did not specify it, but simply forbade removing it absolutely, removal is permitted when these recurring necessities occur, for his prohibition was only excessive precaution in preservation; it is thus not permitted to leave the deposit in a place leading to its destruction, and if he leaves it without moving it until it perishes, he is liable for his neglect."
Al-Mawardi continues: "If he specified that it must not leave even if fire threatened it or a raid occurred: if it is an animal that fears for its life in the fire, this condition is invalid and removal becomes obligatory despite the prohibition, just as fodder becomes obligatory despite prohibition; if he removes it, he is not liable; if he leaves it, there are two views on his liability, as with the beast for which it was stipulated that no fodder be given. If it is not an animal that fears for its life, there are two views on whether the condition is binding, according to the two positions related from Abu Ishaq al-Marwazi concerning the agent commissioned to buy a specific slave for ten who buys him for less: if the principal did not forbid him to buy for less than ten, the purchase is valid; if he forbade him, there are two views: the first, that the condition is invalid and the purchase valid; the second, that the condition is binding and the purchase invalid. This case is extrapolated onto those two views: on the first, the condition binds in order to cut off the dispute, and accordingly if he removes the deposit he is liable, and if he leaves it he is not; on the second, the condition does not bind, the precaution expressed in the stipulation prevailing, and accordingly if he removes it he is not liable, and if he leaves it there are two views on his liability, as we mentioned for the beast forbidden fodder that is not fed. As for the expense of its removal and transport: if the owner forbids him, it is voluntary; likewise if he bears it though it is not obligatory; if it is obligatory, it is like the fodder mentioned above." (Al-Hawi al-Kabir 8/369-370)
The Hanbalis say: the custodian must remove the deposit when a threat looms whose dominant outcome is loss, such as plunder; if he leaves the deposit in the place fixed by its owner while such a threat looms and it perishes, the custodian is liable for it, whether it perished by the feared cause or by something else, for he has been negligent. (Kashshaf al-Qina' 4/206, Matalib Uli al-Nuha 4/150-151)
Imam Ibn Qudama (may Allah have mercy on him) said: "If the deposit's owner orders the custodian to preserve it in a place he designates, and he preserves it there without fearing for it, no liability falls upon him without dispute, for he is complying with his order, not negligent of his property. If he fears for it a flood and destruction, meaning loss, and moves it to its secure place, and it perishes there, no liability falls upon him without dispute either, for moving it in this situation constitutes preservation, and he is charged with preserving it. If he leaves it despite the fear and it perishes, he is liable for it, whether it perished by the feared cause or otherwise, for he has neglected its preservation: its preservation lies in moving it, and leaving it is wasting it. If he fears nothing for it and moves it from the secure place to an inferior one, he is liable for it, for he has contradicted the preservation he was ordered to observe. And if he moves it to an inferior place while fearing for it, the matter is examined: if he could secure it in an equal or better place, he is liable for it as well, through negligence; if he can secure it only in an inferior place, he is not liable, for that safeguarding is more protective than leaving it, and he has nothing else within his power." (Al-Mughni 6/303)
It is related from some that no liability falls upon him if he does not remove it. Ibn al-Mundhir (may Allah have mercy on him) said: "They differed over the fire that breaks out in the house while the custodian is able to remove the deposit from 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 preserving it and let it be lost; this resembles al-Shafi'i's position, for he said: whoever is entrusted with animals and does not feed them until they perish is liable. Another says: no liability falls upon him, for the fire destroyed it; this is like the Muslim man whom fire surrounds, and another Muslim able to rescue him does not do so: he is a sinner, but there is no retaliation against him nor reason for qisas." (Al-Ishraf 6/344)
The Shafi'i and Hanbali jurists differed, however, if its owner says to him: "Do not remove it from that secure place even if you fear its loss," and loss occurs without his moving it: two views among them. The first, which is the sound one in their view: he is not liable, for he complied with his owner's order; his prohibition despite the fear of loss is an explicit text to that effect, so that he is permitted to leave it in that situation; he thus resembles one who says to him: "Destroy it," and he destroys it. The second: he is liable, for he exposed the deposit to peril by refraining from moving it despite the fear; the owner's prohibition aimed only at preservation, whereas here preservation lies in removal, which makes it like the case where he had not prohibited it. (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 and 8/326, Nihayat al-Muhtaj 6/138-139, Al-Dibaj 3/113, Al-Mughni 6/303-304, Kashshaf al-Qina' 4/205-206, Sharh Muntaha al-Iradat 234-235)
Al-Mawardi and others say: the deposit does not require the custodian to know its contents, unlike the lost property (luqata), because of the describing that the latter requires. The jurists lay down, as seen above, that the custodian is a trustee, and he is not required to know what the deposit contains. Thus, if a deposit is handed to him in a sealed bag, without his knowing its contents or inspecting it, and the depositor then claims it contained more than it now holds, the custodian's word prevails.
The Hanafis say: if dirhams in a bag are entrusted to a man, without their being weighed before the custodian, and the depositor then claims there were more, and the custodian says: "I received the bag, but I do not know how much it contained," no liability nor oath falls upon him. This holds unless the depositor imputes an act to him, namely squandering or treachery; the custodian then swears, as if the depositor said: "There was an excess of such amount, and you squandered the excess, or committed treachery against me in such a way"; the custodian then swears. It is also said that he should swear, and Muhammad (may Allah have mercy on him) says: the word of the usurper and of the custodian prevails as to the amount, with his oath. (Al-Muhit al-Burhani 5/483, Al-Jawhara al-Nayyira 4/164, Al-Fatawa al-Hindiyya 4/346, Durrar al-Hukkam 2/272)
The Shaykh of Islam Ibn Taymiyya (may Allah have mercy on him) was asked about a deposit entrusted in a sealed bag, the custodian not knowing its contents nor inspecting it, the depositor stating it amounted to 1503 tafassil (small coins); the deposit was lost within a piece of cloth, and after this loss the deposit's owner declared that what it contained was worth 7000. Must the custodian pay the value of what was mentioned first, or what was mentioned later? He answered: "If it perished without negligence or transgression on his part, no liability falls upon him; and if it vanished along with his own property, it is more binding still; and if he makes this claim on the basis of a manifest and known indication, proof (bayyina) is required and his word is accepted." (Majmu' al-Fatawa 30/397)