Islamic Fiqh > Endowments (waqf) and property > Wadi'a: the deposit of trust > Accepting the custodian's word that he returned the deposit
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Updated on 25 September 2026 at 6:57 PM
This part belongs to the full section: All sections of this part.
The jurists of the four schools agree: if the custodian, who received the deposit without proof (bayyina), claims to have returned it to its owner, his word is accepted with his oath, for he is a trustee and his word prevails. Ibn Hubayra (may Allah have mercy on him) said: "They agree that the custodian's word is accepted, absolutely, as to loss and as to restitution, with his oath." (Al-Ifsah 2/5)
They differed, however, where the deposit had been entrusted to him with proof, and the custodian claims restitution without proof: is his word accepted? The Malikis according to the well-known position, and Ahmad in one transmission, hold that if the owner handed the deposit to the custodian with proof, and the custodian then claims restitution without proof, his word is accepted only with proof. Indeed, when testimony was borne against him and security was taken through him, he was established as trustee for preservation, not for restitution; by claiming restitution, he claims his innocence in a matter in which he is not trusted, and so his word is accepted only with proof.
Moreover, one against whom testimony has been borne generally strives to repel that testimony; if he does not, the accusation entailing liability becomes established. And the principle of possession is liability, according to the Prophet's (peace and blessings of Allah be upon him) statement: "The hand is answerable for what it took until it returns it"; we depart from it in the cases that bar consensus, and it remains according to its purport in situations of dispute. Finally, without liability in such a case, the benefit of witnessing would vanish: if it were set aside, no advantage in bearing witness would remain. (Al-Mudawwana al-Kubra 15/150-151, Al-Ishraf 'ala Nukat Masa'il al-Khilaf 3/109-110, no. 967, Al-Ma'una 2/182, Al-Dhakhira 9/145, Al-Taj wa-l-Iklil 4/275, Bidayat al-Mujtahid 2/233, Al-Fawakih al-Dawani 2/170, Al-Ifsah 2/5, Al-Sharh al-Kabir with Mughni al-Muhtaj 7/316, Jami' al-'Ulum wa-l-Hikam 313, Al-Insaf 6/338)
It is stated in Al-Mudawwana al-Kubra, concerning one who hands property to a man as qirad or deposit, with proof or without: one was asked to consider Malik's statement: if property is handed to someone as deposit or qirad with witnesses, and the one who took the property later declares he returned it, he is not absolved by his mere word without proof. Why did Malik say this? Is not the principle of his taking of this property a trust? Why is he not absolved by declaring he handed it back? The objection was added: Malik also said that if he declares the property was lost while with him, he is believed even though there was proof against him. The answer was: when the property was handed to him, the one who handed it took security through him; he is therefore not absolved so long as he has not himself taken security by returning it, even if the principle of the property is a trust: he is absolved only by a written document. (Al-Mudawwana al-Kubra 15/150-151)
The proof intended, established for the purpose of taking security, is that regarding which the witness declares: "Bear witness that I only testified out of fear of a claim of restitution or denial." As for testimony established out of fear of death, out of fear of a claim of loss and the like, which is known not to aim at taking security, the custodian is believed when he claims restitution. It suffices, for the proof to count as established for taking security, that the depositor (al-mudi', the one who entrusts) intended it, without it depending on the custodian's (al-muda', the one who keeps) knowledge that the depositor had that testimony borne for that purpose. It is also said that, for the proof to be for taking security, the custodian must know that the depositor so intended. (Al-Fawakih al-Dawani 2/170)
The majority of jurists, the Hanafis, the Shafi'is and the Hanbalis as the school's position, a view some also attribute to Ibn al-Qasim among the Malikis, hold that if the custodian claims to have returned the deposit to its owner, his word is accepted absolutely with his oath: he took the item itself for the owner's benefit, not his own, so that his word prevails as to restitution. This holds whether testimony was borne against him when the deposit was handed to him or not; since his word on loss is accepted with or without testimony, his word on restitution must be accepted with or without testimony. (Tuhfat al-Fuqaha' 3/182, Bada'i' al-Sana'i' 6/211, Bidayat al-Mujtahid 2/233, Al-Hawi al-Kabir 8/371, Al-Muhadhdhab 1/362, Al-Najm al-Wahhaj 6/373, Kanz al-Raghibin 3/459, Mughni al-Muhtaj 4/150, Tuhfat al-Muhtaj 8/353, Al-Dibaj 3/122, Al-Mughni 6/308, Al-Sharh al-Kabir 7/316, Al-Insaf 6/338, Kashshaf al-Qina' 4/217, Sharh Muntaha al-Iradat 4/247, Matalib Uli al-Nuha 4/163)
Imam Ibn Hubayra (may Allah have mercy on him) said: "They agree that the deposit is pure trust, that it belongs to the recommended acts of devotion, that there is a reward in preserving it, that liability falls upon the custodian only through transgression, and that his word prevails, absolutely, as to loss and restitution, with his oath." They then differed where the custodian had received the deposit with proof: is his word on restitution accepted without proof? Abu Hanifa and al-Shafi'i say his word on restitution is accepted without proof. Malik says it is accepted only with proof. Ahmad has two transmissions: the more apparent conforms to Abu Hanifa's and al-Shafi'i's view, the other to Malik's. (Al-Ifsah 2/5)
Imam Ibn Rajab (may Allah have mercy on him) said: "If the trustee claims to have returned the trust to the one who entrusted him, the majority accept his word, as with the claim of loss. Al-Awza'i says it is not accepted, for he is a claimant. Malik, and Ahmad in one transmission, say that if his taking charge of the trust is established by proof, his word on restitution is not accepted without proof." Some of the school's companions motivated it thus: bearing witness against a right established by proof is obligatory, so that abandoning it constitutes negligence entailing liability; this is why some of them require proof for handing over an orphan's property, Allah the Most High having commanded that testimony over it be established. (Jami' al-'Ulum wa-l-Hikam 313)
Imam Ibn al-Mundhir (may Allah have mercy on him) said: "They differed over the custodian who says: I returned it to you. Al-Thawri, al-Shafi'i, Ahmad, Ishaq and the proponents of personal opinion say his word prevails with his oath. Malik says: if it was entrusted to him with proof, he is not absolved by saying 'I handed it back to you' without proof; if it was entrusted without proof, he is absolved without proof; the mudarib's principal is in the same position." Abu Bakr said: "Al-Thawri's view is correct: they agree indeed to believe him when he says it perished; likewise when he says: I returned it to you." (Al-Ishraf 6/332-333)
Imam Ibn al-Qayyim (may Allah have mercy on him) gives the following example: "If the mudarib or partner makes a slip and says 'I earned a thousand,' then wishes to retract, his retraction is not accepted, for it is denial after acknowledgment; if he establishes proof of his slip, the sound view is that it is accepted; it is also said that it is not, for he contradicts his own word. The remedy for his slip is to say that he lost what he had gained in error: his word then prevails, and he does not owe the thousand." (I'lam al-Muwaqqi'in 4/8)
Such is also the remedy for any trustee fearing his word will be repudiated, like the custodian who returns a deposit that was entrusted to him with proof without testimony of his restitution being borne: is his word accepted? Two views exist, and they are Ahmad's two transmissions. If he fears his word will not be accepted, the remedy to extricate himself is to claim that the deposit perished without negligence on his part; if an oath is demanded of him, let him swear while interpreting that "loss" means its leaving from under his hand, and the like. (I'lam al-Muwaqqi'in 4/8)
The jurists agree: if the deposit's owner asks for his, its restitution is incumbent upon him, absent an excuse, by the word of Allah the Most High:
"Indeed, Allah commands you to render the trusts to those to whom they are due"
Surah An-Nisa, 4:58
The Prophet (peace and blessings of Allah be upon him) said:
Render the trust to the one who entrusted you, and do not betray the one who betrayed you.Narrated by Imam Ahmad in his Musnad (15462) and by Abu Dawud (3534)
That is: upon the owner's request. Imam Ibn al-Mundhir (may Allah have mercy on him) said: "They agreed that trusts must be returned to their owners." (Al-Ijma' 558)
The deposit is indeed a right attached to its owner, to which no other right attaches; it must therefore be rendered to him, like usurped property and a matured debt. If he refuses to hand it over in this situation and the deposit perishes, he is liable for it: he has become a usurper, since he withholds another's property without his authorization by a forbidden act. If, however, he asks for it at a time when it is impossible to hand it over, due to distance, the danger of the route, inability to carry it or otherwise, he commits no transgression by refraining from delivering it, for Allah the Most High burdens no soul beyond its capacity; if the deposit perishes, he is not liable, there being no transgression. And if he says: "Give me time to pray, to eat for I am hungry, to sleep for I am overcome by sleep, or to wait until my digestion improves for I am full," he is granted a delay in proportion to that. (Bada'i' al-Sana'i' 6/210, Al-Jawhara al-Nayyira 4/155, Al-Lubab 1/645, Mukhtasar al-Wiqaya 2/133, Al-Fatawa al-Hindiyya 4/352, Al-Bayan 6/496, Rawdat al-Talibin 4/594-595, Al-Najm al-Wahhaj 6/371, Mughni al-Muhtaj 4/149, Al-Mughni 6/306, Al-Ifsah 2/5, Sharh Muntaha al-Iradat 4/251, Kashshaf al-Qina' 4/221)
The Malikis say, however: one who hands a deposit to a man without proof, then asks him for it, and the custodian refuses to return it except before the judge, and the deposit is lost thereafter, is liable for it; his withholding is an injustice to the owner, and he is like the one who causes the loss, since no excuse is open to him, his word being accepted when he claims to have returned it. If he had received it with proof established for taking security, he is not liable, for he is excused: his word is not then accepted as to restitution, unlike the first case. Except if he says: "It was lost years ago, rather long ago than recently, and I mentioned it to no one, except that I hoped to find it and searched without finding it": no liability falls upon him, for he is a trustee; whether the owner be present or absent from the country. The same applies to a matured qirad: if its owner asks for it and he answers that it was lost years ago and that he had hoped for it, no liability falls upon him. (Al-Taj wa-l-Iklil 4/276-277, Sharh Mukhtasar Khalil 6/118, Al-Sharh al-Kabir with Hashiyat al-Dasuqi 5/139, Tahbir al-Mukhtasar 4/360-361)
If the owner asks for the deposit and the custodian answers: "I cannot bring it to you at this moment," the Hanafis say: if the deposit's owner asks him for it, the custodian replies that he cannot bring it at the moment, the owner leaves him and departs, and the deposit then perishes: if the custodian is truthful in his statement, he is not liable in any case, for the request relieved the custodian of the charge of preservation, and the owner's later return constituted a new deposit. If he could have brought the deposit but lied: if the owner leaves him willingly and departs, he is not liable, for his departure instituted a new deposit; if he departs unwillingly, he is liable. And if the one asking is the owner's agent, the custodian is liable, for the agent has no power to institute a new deposit, unlike the owner. (Al-Bahr al-Ra'iq 7/276, Majma' al-Damanat 1/225, Hashiyat Ibn 'Abidin 8/341, Tanqih al-Fatawa al-Hamidiyya 5/185-186)
The jurists differed over the case where the owner's agent comes to ask the custodian for the return of the deposit: must he hand it over to him? Abu Yusuf and Muhammad among the Hanafis, as well as the Shafi'is and the Hanbalis, hold that if the owner's agent asks the custodian for the deposit, or the owner orders the custodian to return the deposit to his agent and the custodian believes him, he must hand it over, whether the agent asked for it or not; if he refuses and the deposit perishes, he is liable, for he withholds another's property without his authorization.
If he delays delivery to the agent until testimony is borne about him, he is not liable according to the Shafi'is, his word not being accepted as to restitution to the agent; bearing witness is incumbent upon him for restitution to the agent according to one of the two Shafi'i positions, favored by al-Baghawi; according to the second, witnessing is not incumbent upon him, which is al-Ghazali's view. (Rawdat al-Talibin 4/595-596, Mughni al-Muhtaj 4/149, Kashshaf al-Qina' 4/221-222, Sharh Muntaha al-Iradat 4/251, Al-Bahr al-Ra'iq 7/276, Majma' al-Damanat 1/225, Hashiyat Ibn 'Abidin 8/341, Tanqih al-Fatawa al-Hamidiyya 5/185-186, Al-Fatawa al-Hindiyya 4/352)
The Hanafis according to the well-known position hold that if the agent declares he is commissioned to receive the deposit and the custodian believes him, he is not ordered to hand it over. For by believing him, he acknowledged the agent's receipt of another's property in kind, which cannot nullify the custodian's right over that property; this differs from the case where the agent claims to be commissioned to collect a debt and the custodian believes him: he is then ordered to pay him, for the agent acknowledged a matter concerning the custodian's own property, debts being settled by equivalents and not in kind, as explained.
If the deposit perishes with the custodian after his refusal, it is said he is not liable, and it is said he should be liable, the refusal shown to the depositor's alleged agent counting as a refusal shown to the depositor himself, which entails liability. If he hands the deposit to the agent and it perishes in his hand, while the depositor denies having commissioned him, the custodian is liable, for he committed a transgression by delivering it to him; the depositor may demand his oath that he did not commission him: if he declines, the custodian is innocent; if he swears, he is liable, with no recourse against the agent. For one who claims the custodian is unjust in holding him liable is himself the wronged party, and the wronged has no right to wrong another; except if he guaranteed the agent, at the time of delivery, restitution on the terms described for the debt: he then has recourse against him. And if he handed him the deposit without believing his commission, he has recourse against him absolutely.
If the item itself remains, he takes it back in all cases, for he became its owner by paying the liability; and if he wishes to recover it after having delivered it to the agent, he has no right to that, for he seeks to annul what was completed by his own doing. (Al-Mabsut 11/8, Al-Hidaya 3/152, Al-'Inaya 11/223, Tabyin al-Haqa'iq 4/284, Majma' al-Damanat 1/214, Hashiyat Ibn 'Abidin 8/341)
The Malikis, for their part, say: one who entrusts a deposit to a man, and the custodian claims to have delivered it to the owner's agent or messenger, and the owner denies it: the custodian's word on this is accepted only with proof establishing that the owner ordered him to deliver the deposit to the agent or messenger; the owner swears he gave no such order, and if he declines, the custodian swears, and nothing falls upon him. Ibn Rushd (may Allah have mercy on him) said: "One who delivers the deposit to a hand other than the one that delivered it to him owes what the orphan's guardian owes in the matter of witnessing; if he does not establish it, he is not believed in the delivery if the recipient denies it." (Mawahib al-Jalil 7/237, Al-Taj wa-l-Iklil 4/273)
Ibn Shas said: "As for the claim of restitution to someone other than the one who entrusted him, such as claiming to have returned it to the owner's heir or to his agent, it is not accepted without proof; likewise, the heir of the custodian's claim against the owner requires proof; and this holds whether the handover in all three of these situations took place with proof or without." ('Aqd al-Jawahir al-Thamina fi madhhab 'alim al-Madina 2/855; see also Sharh Mukhtasar Khalil 6/115, Al-Sharh al-Kabir with Hashiyat al-Dasuqi 5/133-134, Tahbir al-Mukhtasar 4/356)
The jurists of the four schools agree: if the depositor asks for the deposit, the custodian denies it without excuse, then acknowledges it, or the owner establishes proof that he entrusted it to him, the custodian is liable for it. By his denial, he left the state of trust regarding the deposit, and liability persists by reason of his acknowledgment: his hand has become a transgressing hand, and he has belied his earlier denial while confessing the lie incompatible with trustworthiness.
The contract, made manifest by the proof, also reveals that he benefited from his denial: when the owner asks him for the deposit, it relieves him of preservation; by denying it in his presence, the custodian relieved himself of preservation, the contract was dissolved, and another's property remained in his hand without authorization. He is therefore liable for it, and if it perishes, liability becomes established. The Vizier Ibn Hubayra (may Allah have mercy on him) said: "They agree: if he demands it and he answers 'you entrusted me with nothing,' then later declares it was lost, he is liable for it, for he thereby left the bounds of trust." (Al-Ifsah 2/5-6)
If the owner does not establish proof and the custodian does not acknowledge, the custodian's word prevails with his oath:
The burden of proof is on the claimant, and the oath is on the one who denies.Narrated by al-Bukhari (2668) and Muslim (1711)
This tradition reaches us from Ibn Abi Mulayka, who said: "Ibn Abbas wrote to me that the Prophet (peace and blessings of Allah be upon him) ruled by the oath for the defendant." Al-Bayhaqi relates it in Al-Sunan al-Kubra (10/252) and others, by the chain of Abdallah ibn Idris, from Ibn Jurayj and Uthman ibn al-Aswad, from Ibn Abi Mulayka, who said: I was judge for Ibn al-Zubayr in Ta'if, and he related the story of the two women; he wrote to Ibn Abbas, who replied that the Messenger of Allah (peace and blessings of Allah be upon him) said: "Were people granted their claims, men would claim people's property and blood; but the proof is upon the claimant, and the oath upon the one who denies." The hafiz Ibn Hajar says in Fath al-Bari (5/334) that this addition is not in the two Sahihs and that its chain is good (hasan).
Imam al-Nawawi (may Allah have mercy on him) says in Sharh Muslim (12/3) that this addition reaches us through a good or authentic chain, and that this hadith is a great principle of the laws of the Sharia: a man's word regarding his claim is not accepted by his mere assertion, but requires proof or the defendant's acknowledgment; if he requests the defendant's oath, he is granted it. The Prophet (peace and blessings of Allah be upon him) explained the wisdom in not granting a claim by its mere assertion: otherwise people would claim others' blood and property and be permitted them, and the defendant could not safeguard his property and blood, whereas the claimant can safeguard them by proof. Al-Albani authenticated this hadith in Al-Irwa' (6/357). The defendant is the one who holds to the original state, and the original state is that no deposit was entrusted to him: his word therefore prevails. If the claimant establishes proof of the deposit, or the defendant acknowledges it, the deposit is demanded of him. (Al-Mabsut 11/117, Bada'i' al-Sana'i' 6/212, Al-Fatawa al-Hindiyya 4/356, Al-Dhakhira 9/173, Al-Taj wa-l-Iklil 4/268-269, Tahbir al-Mukhtasar 3/523, Sharh Mukhtasar Khalil 6/13, Al-Sharh al-Kabir with Hashiyat al-Dasuqi 5/129, Al-Ishraf 6/341, Al-Hawi al-Kabir 8/377, Al-Bayan 6/449, Al-Najm al-Wahhaj 6/374, Mughni al-Muhtaj 4/151, Al-Mughni 6/307, Sharh Muntaha al-Iradat 4/250, Kashshaf al-Qina' 4/220)
The Hanafis lay down, however, seven conditions for the custodian to be liable:
The Hanafis, the Malikis according to the well-known position, the Shafi'is in one view and the Hanbalis in one view hold that if the custodian acknowledges after his denial, then claims that the loss preceded the denial while producing proof, that proof is not heard, for he belied it by denying the deposit. (Al-Mabsut 11/117, Al-Fatawa al-Hindiyya 4/356, Al-Jawhara al-Nayyira 4/158, Al-Taj wa-l-Iklil 4/268-269, Tahbir al-Mukhtasar 3/523, Sharh Mukhtasar Khalil 6/13, Al-Sharh al-Kabir with Hashiyat al-Dasuqi 5/129, Al-Hawi al-Kabir 8/377, Al-Bayan 6/449, Al-Mughni 6/307, Kashshaf al-Qina' 4/220, Sharh Muntaha al-Iradat 4/250)
The Shafi'is add: if he says, when the deposit is demanded of him, "You have no deposit with me" or "No right lies against my hand," then acknowledges it and claims it perished, his word is accepted: these two statements contain no lie, for one whose deposit was lost has no deposit with him nor in his hand; he differs in this from the one who denies it, whose two statements are lies.
Second scenario: the proof testifies that the deposit perished after the denial. No dispute exists among the jurists: when the proof establishes that the deposit perished after his denial of it, he is liable for it, the proof is not set aside, and the indemnity is due from him, for the deposit perished after liability had attached to it. (Al-Mabsut 11/117, Bada'i' al-Sana'i' 6/212, Al-Fatawa al-Hindiyya 4/356, Al-Dhakhira 9/173, Al-Taj wa-l-Iklil 4/268-269, Tahbir al-Mukhtasar 3/523, Sharh Mukhtasar Khalil 6/13, Al-Sharh al-Kabir with Hashiyat al-Dasuqi 5/129, Al-Ishraf 6/341, Al-Hawi al-Kabir 8/377, Al-Bayan 6/449, Al-Najm al-Wahhaj 6/374, Mughni al-Muhtaj 4/151, Al-Mughni 6/307, Sharh Muntaha al-Iradat 4/250, Kashshaf al-Qina' 4/220)
If the custodian pointed the deposit out to his heirs, or mentioned it in a bequest, then died and the deposit perished, no liability falls upon him and nothing is taken from his estate. According to the Malikis likewise, if he said, "The deposit is in such a place," and it is not found there, he is not liable: it is presumed to have been lost, and his word is accepted. (Al-Mabsut 11/129, Bada'i' al-Sana'i' 6/213-214, Al-Ashbah wa-l-Naza'ir 273, Majma' al-Damanat 1/232, Hashiyat Ibn 'Abidin 8/433, Durrar al-Hukkam 7/149-150, Mu'in al-Hukkam 158, Al-Taj wa-l-Iklil 4/269, Sharh Mukhtasar Khalil 6/113-114, Al-Sharh al-Kabir with Hashiyat al-Dasuqi 5/130-131, Tahbir al-Mukhtasar 4/353-354, Hashiyat al-Sawi on Al-Sharh al-Saghir 8/169-170, Rawdat al-Talibin 4/602, Al-Mughni 6/306-307, Sharh al-Zarkashi 2/229, Al-Insaf 6/343, Sharh Muntaha al-Iradat 4/256, Kashshaf al-Qina' 4/220-221)
The jurists of the four schools agree: if the custodian dies ignorant of the deposit, that is, without revealing the state of the trust he holds, while he knows his heir does not know its situation and without testimony having been borne about it, he is liable for it through that concealment (tajhil). By concealing it, he wrongfully withheld the deposit from its owner, and it becomes a debt upon his estate. If the deposit is identified in kind, its restitution to the owner is obligatory; the owner has more right to it than the creditors (ghurama'), for the creditors' right after the debtor's death attaches to his own property, not to other people's property: just as they had priority during the debtor's life, so it is after his death.
If the deposit is not identified in kind and the deceased left a debt with creditors, the property is divided among them according to their shares: through his concealment, he exposed his creditors and heirs to seizing it, and a custodian who brings about such exposure becomes liable, like one who points a thief to stealing the deposit. He had indeed undertaken to render the trust, and rendering the trust includes revealing it at his death and returning it to the owner upon request: just as he is liable for omitting restitution after the request, he is likewise liable for omitting disclosure at his death. If the heirs claim the deposit perished or was returned, they are believed only with proof: dying ignorant of the deposit is a cause of mandatory liability, being a destruction, so that the claim of loss or restitution is a claim of accident, accepted only with proof. All of this presupposes that the custodian acknowledged holding a deposit belonging to such a man, or that it is established by proof that he died holding the deposit. (Hashiyat al-Dasuqi 5/130-131, and the sources cited above)
The Malikis say, however: if he dies ignorant of the deposit and ten years pass from the day of the deposit, nothing is taken from his estate if the deposit is not found and was not bequeathed; it is presumed he returned it to its owner, unless the deposit was entrusted with proof established for taking security, in which case it is taken from his estate without condition, even if the period exceeds the ten years. (Al-Taj wa-l-Iklil 4/269, Sharh Mukhtasar Khalil 6/113-114, Al-Sharh al-Kabir with Hashiyat al-Dasuqi 5/130-131, Tahbir al-Mukhtasar 4/353-354, Hashiyat al-Sawi on Al-Sharh al-Saghir 8/169-170; see also Al-Mabsut 11/129, Bada'i' al-Sana'i' 6/213-214, Al-Ashbah wa-l-Naza'ir 273, Majma' al-Damanat 1/232, Hashiyat Ibn 'Abidin 8/433, Durrar al-Hukkam 7/149-150, Mu'in al-Hukkam 158, Al-Mughni 6/306-307, Sharh al-Zarkashi 2/229, Al-Insaf 6/343, Sharh Muntaha al-Iradat 4/256, Kashshaf al-Qina' 4/220-221)
Imam Ibn al-Mundhir (may Allah have mercy on him) relates: "Chapter: the custodian dies while holding for a man a deposit identified in kind or not. Abu Bakr said: the people of knowledge agree that if the deposit is identified in kind for a man, its owner has the greatest right to it and its delivery is obligatory. They differed over the man who dies holding a deposit known by its description, without it being found in kind, while he left a debt. One group says the deposit and the debt are the same: this is the view of al-Sha'bi, al-Nakha'i and Dawud ibn Abi Hind; it is related from Shurayh, Masruq, 'Ata', Tawus and al-Zuhri, and from Abu Ja'far; Malik, Ishaq, al-Shafi'i and al-Nu'man and his companions held it. We also relate from al-Nakha'i that he said: the trust precedes the debt. Al-Harith al-'Akli said: one begins with the debt. Ibn Abi Layla said: if the deposit is not found in kind, it counts for nothing." (Al-Ishraf 6/335-336)
Ibn Qudama (may Allah have mercy on him) said: "If a man held a deposit during his lifetime and it is not found in kind, without it being known whether it is still with him or has perished, two views exist. The first: liability for it is obligatory, for the deposit must be returned, unless release from restitution through loss without transgression is established, which is not established; and ignorance of the item in kind is like ignorance of the deposit itself, and that does not waive restitution. The second: no liability falls upon him, for the deposit is a trust, and the principle is the absence of destruction and transgression: liability is therefore not obligatory. This is Ibn Abi Layla's view, one of the two positions of al-Shafi'i's companions, and the apparent meaning of the school's first position, the principle being the obligation of restitution, which persists until something removes it." (Al-Mughni 6/306-307, Sharh al-Zarkashi 2/229, Al-Insaf 6/343)
Fourth scenario: the discovery of a document in his hand stating that the deposit belongs to such a one. The jurists differed if there is found in a man's account book, or in a document written in his hand, that such a one holds a deposit with him or that he owes him a debt: must it be handed over to him? The Malikis and the Hanbalis as the school's position hold that he must return it to its owner and that it is obligatory to act upon his writing.
The Malikis say: one who dies while a deposit with him bears the inscription "This is the deposit of so-and-so son of so-and-so": its owner takes it, on condition that proof establishes the writing to be in the hand of the deposit's owner or in the deceased's hand. If what is found is less than what is written, the shortfall is borne by the deceased's property if it is established that he disposed of the deposit; otherwise he is not liable. The writing has the value of proof, indeed is stronger, without a sign being required, since he may have seen the writing previously; and the debt is treated like the deposit according to this same distinction.
Abu al-Walid Ibn Rushd (may Allah have mercy on him) relates: Abu Zayd asked Ibn al-Qasim about a man who died leaving deposits without a bequest, in whose possession chests were found bearing the inscription "Deposit of so-and-so son of so-and-so," with so many dinars: does the property go to the man thus designated, on no proof other than his word, given that the chests were found with the deceased as he claims? He answered: "He has nothing to claim from it: it may be that the deceased handed dirhams to the people of the house, and they wrote for him upon those chests what he wanted." Muhammad ibn Rushd said: "This is a matter of no dispute: no judgment is made upon the chest for whoever finds his name on it, if the writing is neither in his hand nor in the custodian's hand." (Al-Bayan wa-l-Tahsil 15/312, Al-Taj wa-l-Iklil 4/269, Sharh Mukhtasar Khalil 6/113-114, Al-Sharh al-Kabir with Hashiyat al-Dasuqi 5/130-131, Tahbir al-Mukhtasar 4/353-354, Hashiyat al-Sawi on Al-Sharh al-Saghir 8/169-170)
The Hanbalis as the school's position say: if the inscription "deposit" is found, it is acted upon obligatorily. If an heir finds his testator's writing, "So-and-so has a deposit with me," or finds written upon the bag and the like, "This belongs to so-and-so," the heir acts upon it obligatorily, as he would act upon a verbal acknowledgment. If he finds his testator's writing mentioning a debt in his favor against so-and-so, he may swear, provided he produces a witness in support, knowing that his testator wrote nothing but truth and was truthful and trustworthy, and pay him the debt; the oath is thus permitted regarding what testimony is not, for one cannot testify to his father's testimony or another's whose writing he has seen. And if he finds his testator's writing mentioning a debt upon him in favor of a named person, the heir acts upon it obligatorily and pays the debt to the one whose name is written, as with the deposit. (Al-Insaf 6/345, Kashshaf al-Qina' 4/222, Sharh Muntaha al-Iradat 4/252, Matalib Uli al-Nuha 4/171)
The Shafi'is, and the Hanbalis in a view chosen by al-Qadi, Ibn Aqil and Ibn Qudama, hold that it is not obligatory to act upon this document. The Hanbalis in this view say: if the inscription "deposit" is found on it, it is not a proof against them, for it is possible that the container held a deposit before this one, or that it was the deceased's deposit with someone else, and the like; likewise, if it is found in his book that such a one has a deposit with him, he is not bound by it, for he may have returned the deposit and forgotten to strike out what he had written, or something of the sort; this is the view chosen by al-Qadi, Ibn Aqil, Ibn Qudama and others. (Al-Insaf 6/345, Kashshaf al-Qina' 4/222)
The Shafi'is add: if the custodian dies without having mentioned any deposit, and a sealed bag is found in his estate bearing the inscription "This is the deposit of so-and-so," or it is found in his book that such a one has a deposit of such description with him, the heirs are not bound to hand it over, for it may be that the deceased held it as a deposit before this one, or that it was the deceased's deposit with someone else, and similar suppositions.
Imam Ibn al-Mundhir (may Allah have mercy on him) said: "If the one who took it has died, he returns it to his heirs. If neither he nor his heirs can be reached, he waits until he despairs of reaching him; when he despairs of that, he gives it in charity, according to what we related from Ibn Mas'ud, Ibn Abbas and Mu'awiya ibn Abi Sufyan; this is the school of al-Hasan al-Basri and al-Zuhri, and Malik said it of lost property when one despairs of its owner." Two other views exist on this question: the first is that it be given to the public treasury (bayt al-mal), a view related from 'Ata'; the second is that it be kept forever until it is known whether its owner is alive or dead, which resembles al-Shafi'i's school of suspending property in such situations until its owner's situation becomes clear. (Al-Ishraf 6/338)
Al-Khatib al-Shirbini (may Allah have mercy on him) relates: "The Shaykh 'Izz al-Din was asked about a man with whom a deposit has remained for a long time without his knowing its owner, and who despaired of knowing him after a complete search. He answered: let him spend it on the most important interests of the Muslims, giving priority to those in necessity and need; let him not build a mosque with it, and let him spend it only on what the just imam is obliged to spend upon; and if he does not know, let him ask the scholars most scrupulous about the obligatory interests ranked by priority." (Mughni al-Muhtaj 4/151)
The Hanafis say: if a stranger dies in a man's house with no known heir, leaving modest property worth five dirhams or thereabouts, and the master of the house is poor, he may take it for himself, for such property is of the order of lost property. (Al-Jawhara al-Nayyira 4/164, Al-Bahr al-Ra'iq 5/171)
The Hanbalis say: as for deposits whose owner is unknown, the custodian may give them in charity without the ruler's permission, or hand them to the ruler; likewise if the owner has disappeared without news and without heirs: the custodian may give the deposit in charity with the intention of indemnifying the owner, if he is known, or his heir. (Al-Insaf 6/328, Kashshaf al-Qina' 4/213)
It is stated in the Mukhtasar al-Fatawa al-Misriyya of Ibn Taymiyya (may Allah have mercy on him): "The scholars say that property whose owner is unknown, whether taken unjustly, such as unlawful taxes, or rightfully, such as a deposit or a loan for use, and whose owner is unknown so that restitution to him is impossible, is spent on the Muslims' interests. It is lawful for one who takes it rightfully, such as people in need and those who use it for the Muslims' interests, excluding one who takes it wrongfully by exceeding his right." (Mukhtasar al-Fatawa al-Misriyya 278)