Islamic Fiqh > Endowments (waqf) and property > Wadi'a: the deposit of trust > Wadi'a: pillars, conditions and liability
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Updated on 25 September 2026 at 6:57 PM
The deposit (wadi'a) is property that a person hands over to another to be kept without charge. The sheets that follow set out the ruling of the contract: it is a contract of donation (tabarru') and not a contract of exchange, unless a fee has been stipulated. They then examine the case of a deposit lost among the depositary's own property, the stipulation of liability, payment for safekeeping, the acceptance of the depositary's statement in case of loss, the dissolution of the deposit by what dissolves the agency, and then the pillars of the contract: the depositor, the depositary and the deposited property, according to the positions of the four schools.
Either party may rescind it before the end of the term, as is mentioned in the chapter on hire (Durrar al-Houkkam 2/228). The Malikis say: each of the depositor and the depositary may abandon the deposit, unless the depositary is paid, in which case it reverts to a hire, which is binding (at-Taj wa-l-Iklil 4/281; Charh Moukhtasar Khalil 6/119; Tahrir al-Moukhtasar 4/364). Al-Bujayrimi said, regarding the definition "devoting oneself to its safekeeping": I have ruled that if the deposit were made for a fee, it would be binding (Touhfat al-Habib 'ala Charh al-Khatib 3/689).
Secondly: the contract of deposit is a contract of donation and not an exchange. The jurists of the four schools explicitly affirmed that the deposit belongs to the contracts of donation that rest on kindness and mutual aid among people. The depositary therefore takes no fee for the mere safekeeping, if no fee has been stipulated, or if his habit is not to take compensation for it: custom runs in this direction, so that the two parties are as if they had entered the contract waiving it.
But the jurists differed regarding one who stipulates taking a fee for its safekeeping: is such a stipulation valid or not? The majority of jurists, namely the Hanafis, the Malikis and the Shafi'is, hold that stipulating a fee for keeping the deposit is valid.
The Hanafis: if the depositor stipulates a fee for the depositary for keeping the deposit, it is valid and binding upon him (al-Fatawa al-Hindiyya 4/342). It is stated in the Madjallat al-Ahkam: "The depositary has no right to take a fee for keeping the deposit, so long as that was not stipulated in the contract." And it is stated in Durrar al-Houkkam: the depositary may take a fee in return for keeping the deposit, because keeping the deposit is not obligatory upon him (Durrar al-Houkkam 2/108; cf. Mourchid al-Hayran 3/1209).
The Malikis: the depositary has no right to take from the owner a fee for its keeping, because custom requires otherwise: safekeeping is a kind of kindness, on which no fee is taken, like the loan (qard) and the guarantee, unless he is one of those who hire themselves out for guarding, in which case he may take the fee; and likewise if custom runs in this direction, and all the more so if it is stipulated.
As for the fee of the place, he may take the fee for what the object occupies, that is, the spot it occupies in his home, if the owner demands it, unless people of his kind take nothing, or custom runs in this direction, or he stipulated not to take. The relied-upon view is that there is no difference between the fee of the place and the fee of the keeping in the ruling; of both it is said: if he stipulated taking it, or custom is acted upon, he takes it; otherwise not (at-Taj wa-l-Iklil 4/280-281; Charh Moukhtasar Khalil 6/119; ach-Charh al-Kabir with the Hachiya of ad-Dassouqi 5/140; Tahrir al-Moukhtasar 4/363; Hachiyat as-Sawi 'ala ach-Charh as-Saghir 8/177).
As for the Shafi'is, they permitted taking a fee for keeping the deposit in the case where accepting it was obligatory upon the depositary. They say: whoever trusts himself is recommended to accept the deposit if it is not imposed on him; if there is no one else to accept it, it becomes obligatory upon him like giving testimony, but for a fee.
Al-Khatib al-Shirbini said: al-Rafi'i said: this is understood as resting on the basis of acceptance, as al-Sarakhsi explained, excluding spoiling his benefit and the benefit of his safekeeping by keeping without compensation; my ruling is that he may take the fee of keeping as he takes the fee of safekeeping; al-Faruqi and Ibn Abi 'Asrun forbade it because it became an obligation upon him, resembling the other obligations; the relied-upon view is the first, as is apparent from the words of the authors; and a fee may be taken even for an obligation, as in watering milking animals (Moughni al-Mouhtaj 4/132), rescuing a drowning person, or teaching something like the Fatiha (Touhfat al-Mouhtaj 8/203; Nihayat al-Mouhtaj 6/128).
As for the Hanbalis, they hold that depositing takes place only as a donation, without compensation. It is stated in Muntaha al-Iradat: "The deposit is property handed to one who keeps it without compensation." Al-i'da' (entrusting): delegating its safekeeping as a favor; al-isti'da' (having it entrusted): delegating its safekeeping likewise, that is as a favor, without any disposal over the deposited property (Muntaha al-Iradat 4/233; cf. Kachchaf al-Qina' 4/203).
But al-Ruhaybani said: the deposit according to the Sharia is property, or an appropriable thing such as the hunting dog, handed by a person capable of disposal to a person capable of disposal, for him to keep it. By the qualification "property or an appropriable thing" are excluded the dog that cannot be owned, wine and their likes among what is not respected; by the qualification "handed", what the wind blows into a house, such as a garment, and what one took by transgression; by the qualification "keeping", the article lent for use ('ariyya) and its likes.
According to the other view, the safekeeping of the deposited property is valid even for compensation: a fee may be taken for its keeping, and a hired guard falls under it as well, contrary to Muntaha al-Iradat, which says: the deposit is property handed to one who keeps it without compensation. Al-Insaf transmits from al-Fa'iq that the deposit means undertaking the safekeeping of another's property, and from ar-Ri'aya as-Soghra that it is a contract of donation for keeping another's property; I have seen no one else holding this direction or what conveys its meaning. Al-i'da' is the delegation by the owner for its safekeeping, as long as the keeping is a favor from the keeper; al-isti'da' is the undertaking by a person for its safekeeping, that is the keeping of another's property, likewise as a favor, without any disposal over the deposited property, since no permission to dispose other than keeping was granted (Matalib Uli an-Nouha 4/147-148).
The disagreement among the Hanbalis concerns the case where the depositary takes compensation for keeping the deposit: does he remain a depositary under the deposit, or does he become a hiree (ajir)?
The Imam Ibn Hubayra (may Allah have mercy on him) said: they agreed that the deposit is a pure trust, that it belongs to the recommended acts of devotion, that keeping it is rewarded, and that liability falls upon the depositary only through transgression (al-Ifsah 2/5; cf. Badai' as-Sana'i' 6/210-211; al-Jawhara an-Nayyira 4/149; al-Loubab 1/643; ach-Charh al-Kabir with the Hachiya of ad-Dassouqi 5/120-121; al-Hawi al-Kabir 8/356; al-Mouhadhdhab 1/359; al-Bayan 6/476; Moughni al-Mouhtaj 4/135; al-Moughni 6/300; Charh Muntaha al-Iradat 4/233).
If the depositary commits a transgression regarding it or falls short in keeping it and the deposit is lost, he is liable without any disagreement among the scholars: he has destroyed the property of another and is therefore liable, as if he had destroyed it without being entrusted with it.
The deposit lost from among the depositary's property. The jurists differed regarding a deposit that is damaged, stolen or lost from among the depositary's property without his own property being affected: is he liable for it or not? The majority of jurists, the Hanafis, the Malikis, the Shafi'is and the Hanbalis in the madhhab, hold that the deposit is a trust in all cases: the depositary is liable for it only if he commits a transgression or falls short. If the deposit is lost or stolen without transgression or negligence from him, even if it was among his property and his property was not affected, he is not liable.
For the basis in keeping the deposit is that it is an act of kindness and benevolence on the part of the depositary: if he were made liable without transgression or aggression from him, people would abandon accepting deposits and turn away from them, and their interests would come to a standstill.
As for the report that Umar (may Allah be pleased with him) held Anas ibn Malik (may Allah be pleased with him) liable for a deposit lost from among his property, it is understood as referring to the case of transgression or negligence (Badai' as-Sana'i' 6/210-211; al-Jawhara an-Nayyira 4/149; al-Loubab 1/643; ach-Charh al-Kabir with the Hachiya of ad-Dassouqi 5/120-121; al-Hawi al-Kabir 8/356; al-Mouhadhdhab 1/359; al-Bayan 6/476; an-Najm al-Wahhaj 6/348; Moughni al-Mouhtaj 4/135; al-Moughni 6/300; Charh Muntaha al-Iradat 4/233; al-Ifsah 2/5).
The Imam Ahmad held, in a narration chosen by the Shaykh of Islam Ibn Taymiyya (may Allah have mercy on him), that if the deposit is lost or stolen without the depositary's property being affected, he is liable for it.
Ibn Qoudama (may Allah have mercy on him) said: the deposit is a trust: if it is lost without negligence from the depositary, he is not liable, whether something of his property went with it or not. This is the view of most people of knowledge; it is transmitted from Abu Bakr, Ali and Ibn Mas'oud (may Allah be pleased with them), and held by Shurayh, al-Nakha'i, Malik, Abu al-Zinad, al-Thawri, al-Awza'i, al-Shafi'i and the people of opinion. Ahmad also has another narration: if the deposit disappears from among his property, he is liable for it, based on the report that Umar ibn al-Khattab (may Allah be pleased with him) held Anas ibn Malik liable for a deposit that disappeared from among his property (authentic: narrated by Ali ibn al-Dja'd in his Mousnad no. 972, and by al-Bayhaqi in as-Sounan al-Koubra no. 12702).
Al-Qadi said: the first view is sounder, because Allah, the Most High, named it a trust, and liability contradicts trust; and because the depositary is one who is trusted: he is not liable for what is lost without his transgression and negligence, like what disappears together with his own property. The depositary keeps the deposit only for its owner, as a favor, with no benefit returning to him: if liability were imposed on him, people would refuse to accept deposits, which would harm the need for them that we have explained. The report of Umar is understood as referring to Anas's negligence in keeping it, so it does not contradict what we have said. If the depositary commits a transgression regarding it or falls short in its keeping and the deposit is lost, he is liable, without any disagreement we know of: he has destroyed the property of another and is liable, as if he had destroyed it without being entrusted with it (al-Moughni 6/300-301; Kachchaf al-Qina' 4/204).
The Imam al-Mirdawi said in al-Insaf: if the deposit is lost from among his property, he is not liable according to the sounder of the two narrations, that is, if he did not transgress; that is the madhhab, and it is the view of most of the companions [of the school]. Al-Harithi: this is the choice of most of the companions; the author of the Mouqni' stated explicitly in his other books that it is sounder. Al-Qadi: this is sounder.
Al-Zarkashi: this is the madhhab; he said in al-Kafi: it is the more apparent of the two narrations; he declared it categorically in al-Wadjiz and elsewhere, and gave it precedence in al-Moughni, in ach-Charh, in the Charh of Ibn Mandja, and al-Harithi and others did so. The second narration: he is liable; the Shaykh of Islam Ibn Taymiyya stated it explicitly and chose it. Al-Zarkashi: the place of this narration would be where loss is claimed; but if the loss is established, the absence of liability follows by a single narration.
A benefit: if the deposit is lost together with his property without negligence, no liability falls upon him, without dispute in the madhhab, and the texts from the Imam Ahmad (may Allah have mercy on him) to this effect are numerous. If it is lost through his transgression or negligence, he is liable without disagreement (al-Insaf 6/316-317; cf. ar-Rawd al-Mourbi' 2/416; al-Kafi 2/374; al-Moubdi' 5/234).
The Imam Ibn Radjab al-Hanbali (may Allah have mercy on him) said: if the deposit is lost from among the depositary's property, his liability is disputed: among the companions [of the school] are those who base it on whether his statement is acceptable in this matter or not; and among them are those who say that its loss from among his property is an indication of his negligence regarding it (al-Qawa'id p. 65).
The Shaykh of Islam Ibn Taymiyya (may Allah have mercy on him) said: if it becomes apparent that the property the depositary has has not disappeared and he claims that the deposit disappeared before it, he becomes liable for the deposit according to one of the two views of the scholars, like the statement of Malik and that of Ahmad in one of the two narrations; for Umar ibn al-Khattab (may Allah be pleased with him) held Anas ibn Malik liable for a deposit which he claimed had disappeared before his property (Majmou' al-Fatawa 30/396).
The stipulation of liability upon the depositary. The jurists of the four schools, the Hanafis, the Malikis, the Shafi'is and the Hanbalis, agree: if the depositor stipulates liability upon the depositary and the depositary accepts it, or the depositary says: "I am liable for the deposit if it is lost, even without transgression or negligence from me", and then it is stolen or lost without transgression or negligence from him in preserving it, he is not liable, and the condition is invalid, with no effect.
For guaranteeing what is held in trust is not valid, for the following reasons:
The same ruling applies if the negation of liability is stipulated in case of transgression or negligence: liability does not cease, and the deposit becomes guaranteed at his charge; for what its liability is not due, a condition does not turn it into guaranteed property, and what its liability is due, its liability does not cease by a condition negating it.
The Imam Ibn Hubayra (may Allah have mercy on him) said: they agreed that if it is deposited on condition of liability, he is not liable, and the condition is invalid (al-Ifsah 2/10).
Al-Qadi Abd al-Wahhab (may Allah have mercy on him) said: if it is deposited with him with liability stipulated, he is not liable, contrary to al-'Anbari; for making guaranteed by condition what is by origin a trust does not hold, like the partnership and the agencies (al-Ichraf 'ala noukat massa'il al-khilaf 3/115-116, no. 973).
Al-'Imrani (may Allah have mercy on him) said: if the depositor stipulates liability upon the depositary, liability does not become binding on him thereby; this is the view of the scholars altogether, except Ubayd Allah ibn al-Hassan al-'Anbari, who said that he is liable; this is incorrect, based on the report we have mentioned. He did not distinguish between stipulating liability or not; for what is by origin a trust does not become guaranteed by condition, just as guaranteed property does not become a trust by condition (al-Bayan 6/476-477).
The Imam Ibn Qoudama (may Allah have mercy on him) said: if the owner of the deposit stipulates its liability upon the depositary and he accepts it, or says "I am liable for it", he is not liable. Ahmad said regarding the depositary who says "I am liable for it" and the deposit is then stolen: nothing against him; the same applies to everything whose origin is trust, like the mudaraba, the property of the partnership, the rahn (pledge) and the agency; and thus said al-Thawri, al-Shafi'i, Ishaq and Ibn al-Mundhir. For he stipulated the liability of something whose cause does not exist, which therefore does not bind him, as if he stipulated the liability of what perishes in its owner's hands (al-Moughni 6/300-301; cf. al-Bahr ar-Ra'iq 7/274; Madjma' ad-Damanat 1/163; Hachiyat Ibn Abidine 8/331; al-Ichraf 'ala noukat massa'il al-khilaf 3/115-116; Charh az-Zourqani 6/117; an-Najm al-Wahhaj 6/348; Kachchaf al-Qina' 4/205).
As was established previously, the deposit is a trust in the hands of the depositary by the agreement of the jurists, when it is made without compensation. But the jurists differed: if it is made for a fee in return for keeping, does it become guaranteed property or does it remain a trust as it is?
The Malikis and the Shafi'is: there is no difference in the deposit between being for a fee or without a fee: it is a trust in all cases, with or without a fee; for taking a fee for the deposit changes nothing of the rulings of trust and liability, like the agency. The depositary is therefore not liable for the deposit if it is lost or disappears without transgression or negligence, in all cases, with or without a fee, and whether it is possible to guard against its loss or not (Charh Miyara 2/327; al-Bahja fi Charh at-Tuhfa 2/469-470; ath-Thamar ad-Dani 1/526; Moughni al-Mouhtaj 4/135; Touhfat al-Mouhtaj 8/312; Nihayat al-Mouhtaj 6/132; ad-Dibaj 3/110).
As for the Hanafis, they distinguish, regarding liability, between the deposit being for a fee or without a fee: the deposit is a trust in the hands of the depositary; accordingly, if it perishes without transgression from the depositary, without his fault or shortcoming in keeping it, no liability is required. But if the deposit is made for a fee for its keeping, and the deposit is lost or disappears for a cause against which one could guard, liability falls upon the depositary: for example, if the watch deposited falls from the depositary's hand without his fault and breaks, no liability is required; but if the watch is trodden underfoot, or something falls from the hand upon it and it breaks, liability is required. Likewise, if a man entrusts his money to another for a keeping fee and the money disappears for a cause against which one could guard, such as theft or usurpation (ghasb), liability falls upon the depositary; but if the loss or perishing results from a cause against which one could not guard, such as an overwhelming fire, the depositary is not liable, whether the deposit is for a fee or without. Such is the content of the Madjallat al-Ahkam according to the Hanafi madhhab (cf. Mourchid al-Hayran 3/1214; Madjallat al-Ahkam p. 148).
The apparent meaning of Ibn Nujaym's statement, as well as that of al-Baghdadi and Ibn Abidine, is that liability is general. Ibn Nujaym said: the deposit is a trust, unless it is for a fee, in which case it is guaranteed; al-Zayla'i mentioned it (al-Achbah wa-n-Nadha'ir 1/276; Madjma' ad-Damanat 1/191). Ibn Abidine, after transmitting this view, said: it was justified because keeping is then deserved at his charge, as we presented previously; he thus indicated that the fee takes the deposit out of being a trust into being guaranteed.
Sadr al-Shari'a: if property is stolen from the shared employee (al-ajir al-mushtarak) while he did not fall short in preserving it, he is liable according to the two authors, as with the deposit taken for a fee, for keeping is deserved by him; Abu Hanifa says: the fee is in return for the work, not the keeping, so it becomes like a deposit without a fee. He thus indicated that the deposit for a fee is guaranteed by agreement, and the deposit without a fee is not guaranteed by agreement (Hachiyat Ibn Abidine 8/334).
The jurists of the four schools agree that the depositary is a trustworthy person: if he claims that the deposit was lost or perished through a hidden cause, he is believed, and his statement prevails without disagreement.
The Imam Ibn al-Mundhir (may Allah have mercy on him) said: all those whose statements we record among the people of knowledge agreed that if the depositary placed the deposit in safekeeping and then stated that it disappeared, his statement prevails; and most of them said: his statement prevails together with his oath (al-Ichraf 6/333; al-Idjma' no. 560).
The Imam Ibn Qoudama (may Allah have mercy on him) said: the depositary is a trustworthy person, and his statement prevails in what he claims of the loss of the deposit, without disagreement (al-Moughni 6/308).
Ibn Hubayra (may Allah have mercy on him) said: they agreed that the deposit is a pure trust, that it belongs to the recommended acts of devotion, that keeping it is rewarded, that liability falls upon the depositary only through transgression, and that the depositary's statement prevails, in loss as in restitution, without restriction, together with his oath (al-Ifsah 2/5).
But the jurists differed: if the depositary claims that the deposit perished through a manifest cause, is his statement accepted with an oath without proof, or is proof indispensable? The Hanafis and the Malikis: his statement is accepted without restriction, unless he is suspected, in which case he swears.
The Hanafis: if the depositary claims that the deposit perished and the owner denies it, the depositary's statement prevails; for the owner claims against the trustworthy person an incidental matter, namely transgression, while the depositary remains presumed in the state of trust: he is thus holding to the basis; his statement prevails, but with the oath, because suspicion exists: the oath is administered to him to repel suspicion (Touhfat al-Fouqaha 3/182; Badai' as-Sana'i' 6/211).
The Malikis: the depositary is a trustworthy person, believed in what he claims of the loss of the deposit; his statement always prevails, even without supporting evidence; for he is entrusted with its keeping in every situation: he is therefore believed in the loss and damage with which he was entrusted, unless he is suspected, in which case he swears; if he shirks, he is liable, and the oath does not return (al-Kafi p. 404; at-Taj wa-l-Iklil 4/275; ach-Charh al-Kabir with the Hachiya of ad-Dassouqi 5/137; Tahrir al-Moukhtasar 4/358).
The Shafi'is and the Hanbalis: if he claims loss through a manifest cause, such as a fire or plunder, his statement is not accepted except with proof, with details among them. The Shafi'is: if the depositary claims the loss of the deposit without mentioning a cause, or mentions a hidden cause such as theft, he is believed on his oath by consensus; stating the cause is not required of him in the first case; however, he must swear that it was lost without negligence from him; if he shirks the oath regarding the hidden cause, the owner swears that he knows nothing of it and receives the compensation, without being required to swear that it did not perish.
If he mentions a manifest cause, such as a fire, plunder or death: if the fire and its generality are known by proof or widespread knowledge, and the survival of the deposit was impossible, he is believed without an oath; for the apparent situation spares him the oath, and the survival of what he claims is impossible; but if survival was possible by a general inconclusive sign, he swears, survival being possible. If the fire is known without its generality, he is believed on his oath, since the survival of what he claims is possible.
If the alleged manifest cause is unknown, proof of its occurrence is required of him, then he swears to the loss by it, since survival from it is possible; proof of the loss by it is not required of him, because it is hidden. If no proof is established, or he shirks the oath, the owner swears that he knows nothing of the loss, and liability returns against the depositary (al-Mouhadhdhab 1/362; an-Najm al-Wahhaj 6/372-373; al-Iqna' 2/380; Moughni al-Mouhtaj 4/150; Touhfat al-Mouhtaj 8/352-353; ad-Dibaj 3/122).
The Hanbalis: the depositary is believed on his oath in claiming the loss of the deposit through a hidden cause such as theft, because it is impossible to establish proof for such a cause; and because, if his statement were not accepted in this, people would refuse to accept trusts despite the need for it.
Likewise, his statement is accepted in claiming the loss of the deposit through a manifest cause, such as a fire, a flood or the plunder of an army, if the existence of that cause in that area is established by the testimony of witnesses: his claim is then accepted, and he swears, together with the proof, that the deposit perished by that cause. If he is unable to establish proof of the manifest cause, he is liable for the deposit, for establishing proof of the cause is not impossible and the basis is its absence. Widespread knowledge (istifada) suffices to establish the manifest cause: if the judge knows it thereby, the depositary's statement is accepted with his oath, without imposing on him witnesses testifying to the cause. Once the manifest cause is established by proof or widespread knowledge, the depositary's statement prevails regarding the loss, with his oath: he swears that it disappeared by it (Kachchaf al-Qina' 4/218; Charh Muntaha al-Iradat 4/248-249; Matalib Uli an-Nouha 4/165).
Ibn al-Qayyim (may Allah have mercy on him) said: all those of whom we say "his statement prevails": his statement is accepted only if the circumstances do not belie him; if they belie him, it is not accepted. For this reason, the depositor and the hirer are belied when they claim that the deposit or the hired item perished in the fire, under demolition, or in the plunder of pillagers and their like: their statement is not accepted unless we verify the existence of these causes; if we know their absence, we affirm their lie, and their statement is not accepted (at-Tourouq al-Hukmiyya p. 30).
The Hanbalis: the pillars of the agency are taken into account for the deposit, and taking possession (qabd) suffices as acceptance of the deposit, as in the agency (Kachchaf al-Qina' 4/203; Matalib Uli an-Nouha 4/148); this was mentioned previously in the chapter on the agency.
The Shafi'is: the deposit is dissolved by what dissolves the agency: revocation, insanity, fainting and death, as the agency is dissolved; for it is an agency of keeping, and is thus like the agency in conclusion and dissolution; restitution becomes obligatory in the case of insanity, and to the heir in the case of death (al-Mouhadhdhab 1/359; Moughni al-Mouhtaj 4/135).
The jurists differed on the nature of the deposit: is it a contract or a mere permission? The majority of jurists, namely the Hanafis, the Malikis, the Shafi'is in their sounder view, and the Hanbalis, hold that the deposit is a contract of delegation on the side of the depositor, and an entrusting on the side of the depositary.
Some Shafi'is held that the deposit is a mere permission of keeping, like hospitality: just as hospitality is a permission from the owner to the guest to eat the food presented to him, without any contract or transfer of ownership, the deposit is a mere permission from the depositor to the depositary to keep his property, without being a contract.
The fruit of the disagreement appears in the following cases.
First: if a deposit is made with an invalid condition stipulated, the Imam said: "whoever makes it a contract corrupts it, and a new entrusting is required; otherwise it will be as if the wind blew a garment into his house. Whoever does not make it a contract annuls the invalid condition and preserves the cause of the deposit."
Second: if the depositary withdraws himself during the depositor's absence, there are two views. If we say "the deposit is a contract", he withdraws, and the deposit remains a legal trust in his hand, like the garment of another blown by the wind into his house: restitution is due from him when he is able, even if its owner did not demand it according to the sounder view; if he does not, he is liable. According to the second view, it is a trust: he is liable only upon shortcoming.
If we say "it is not a contract, but a permission", he does not withdraw, for its initiation took place by an act, so its removal is likewise; like one who permitted two guests to eat of his food, then one of them says: "I have withdrawn myself": his statement is void, and he may eat by the prior permission; the deposit thus remains as it is.
Third: if the owner of the property compels a person to accept the deposit. If we say "a contract", the ruling of deposit is not established; if we say "a mere permission", the ruling is established; this is what is narrated from Ibn Abi Hurayra.
Fourth: the child of the depositary being a depositary involves two views, based on whether the deposit is a contract or not. If we say "the deposit is a contract", the child is a depositary like his mother; if we say "a permission", he is not a depositary, but there is a legal trust in his hand, whose restitution is due immediately when he is able, otherwise he is liable according to the sounder view (Rawdat at-Talibin 4/577; Asna al-Matalib 3/75; al-Achbah wa-n-Nadha'ir of as-Soubki 1/381; and the previous sources of the other schools).
The jurists agreed: the depositor and the depositary must possess the same conditions of capacity as the agent and the principal, that is, being capable of disposal. Whoever may delegate and be entrusted may therefore deposit and accept a deposit.
First: the conditions of the depositor. The depositor must be capable of disposal by the agreement of the jurists: whoever may delegate and be entrusted may deposit and accept a deposit, for depositing and having deposited are delegation and entrusting. The deposit is therefore not valid from a child without discernment, nor from an insane person.
(a) A deposit made by a child without discernment, an insane person or a spendthrift (safih) of property to one capable of accepting it. The deposit is valid only from one whose delegation and entrusting are valid; it is therefore not valid from a child without discernment nor an insane person by agreement, nor from the spendthrift according to the majority, contrary to Abu Hanifa. If the child or the insane person (and likewise the spendthrift) deposits property with someone, he may not accept it as a deposit; if he takes it, he is not freed from liability except by restoring it to his guardian.
This is because he accepted property from one who cannot dispose of it, as if he knowingly accepted usurped property deposited with him: he is not freed from liability except by restoring it to its owner; and because he took the property of another without legal permission, resembling usurpation (Badai' as-Sana'i' 6/207; al-Moulakhkhas al-fiqhi 10/443; Mawahib al-Djalil 7/227; al-Fawakih ad-Dawani 2/170; Hachiyat al-'Adawi 2/359; Rawdat at-Talibin 4/576; an-Najm al-Wahhaj 6/346; Moughni al-Mouhtaj 4/134; Touhfat al-Mouhtaj 8/308-309; Nihayat al-Mouhtaj 6/131; ad-Dibaj 3/108; Kachchaf al-Qina' 4/216; Matalib Uli an-Nouha 4/162).
But the majority of jurists, namely the Malikis, the Shafi'is and the Hanbalis, excepted the case where the depositor fears the loss of the deposit in the hand of the child, the insane person or the interdicted person (mahjur), and so takes it from him for the sake of public interest (hisbah) to keep it: he is not liable, unless he transgresses or falls short.
The Malikis: the deposit is permitted from the child who fears for it if it remains in his hand, and from the slave; and it is permitted for such persons to deposit property whose loss is feared in the hand of its depositary, if they think that each of them will preserve it out of respect and trust for them, like the children of respected people and their slaves when oppressors descend upon a land. The basis of this: the texts indicating the preservation of property and the prohibition of squandering it (al-Moulakhkhas al-fiqhi 10/443; Mawahib al-Djalil 7/227).
The Shafi'is: if a child, even an adolescent of sound mind, or an insane person, deposits property whose acceptance is not permissible for him, it is invalid due to the lack of capacity of both, for the contracting parties require legal responsibility (taklif). If he accepts it or takes possession of it, he is liable up to the maximum value: he placed his hand upon the property of another without valid permission, like the usurper; liability ceases only by restitution to the one who oversees their affairs. The occasion for such taking is when one is safe from loss; if he fears its perishing, he takes it for the sake of public interest to preserve it, without liability if it is lost without shortcoming, like the person in the state of consecration (muhrim) taking game from his hunting animal to care for it (Rawdat at-Talibin 4/576; an-Najm al-Wahhaj 6/346; Moughni al-Mouhtaj 4/134; Touhfat al-Mouhtaj 8/308-309; Nihayat al-Mouhtaj 6/131; ad-Dibaj 3/108).
The Hanbalis: if a child, whether discerning or not, deposits a deposit, or an insane person, or one interdicted for prodigality, and the deposit is lost with the depositary, even without transgression or negligence, the depositary is liable; for he took the property of another without legal permission, resembling usurpation; the depositary is not freed with respect to a child and his like except by handing it to his guardian, like his debt.
Unless the interdicted person, through his instruction, is discerning and permitted to deposit, or he fears that what he holds will perish with him, and so takes it to keep it until he hands it to his guardian as forced custody: he is not liable, like lost property or property in a place of peril that one takes to preserve for its owner and which is lost before being able to return it. Likewise, one who takes property from a usurper to free it and return it to its owner, and it is lost before he is able: he is not liable, for he is a doer of good (al-Moughni 6/311; Kachchaf al-Qina' 4/216; Matalib Uli an-Nouha 4/162).
(b) A deposit made by the child of reason to one capable of accepting it. The jurists differed regarding the child who has attained reason: is his deposit valid, or is puberty required for its validity? The Hanafis and the Hanbalis: the deposit of the discerning child is valid, puberty not being required among them.
Al-Kasani (may Allah have mercy on him) said: the deposit is not valid from an insane person nor from a child who has not attained reason, for reason is the condition of capacity for legal dispositions. As for puberty, it is not a condition with us, to the extent that the deposit of the authorized child is valid: it belongs to what the merchant needs, and is thus among the annexes of trade, and the authorized child possesses it as he possesses trade. With al-Shafi'i (may Allah have mercy on him), he does not possess trade, and thus not its annexes (Badai' as-Sana'i' 6/207).
Ibn Qoudama (may Allah have mercy on him) said: if the child is discerning, his deposit is valid, for he was permitted to dispose of it: he is in this respect like the adult (al-Moughni 6/311).
The Malikis and the Shafi'is: the deposit is valid only from an adult of sound mind capable of disposal. Al-Nafrawi the Maliki said: as for the child and the spendthrift, neither of them may deposit nor have a deposit made with him; but if he deposits something with you, O rational one, it is your duty to keep it (al-Fawakih ad-Dawani 2/170; Hachiyat al-'Adawi 2/359).
The Shafi'is: if a child, even an adolescent of sound mind, or an insane person, deposits property whose acceptance is not permissible for him due to the lack of capacity of both, for the contracting parties require legal responsibility: if he accepts it or takes possession of it, he is liable up to the maximum value; for he placed his hand upon the property of another without valid permission, like the usurper; liability ceases only by restitution to the one who oversees their affairs. The occasion for such taking is when one is safe from loss; if he fears its perishing, he takes it for the sake of public interest to preserve it, without liability if it is lost without shortcoming, like the person in the state of consecration taking game from his hunting animal to care for it.
The depositary must be capable of disposal, that is, able to delegate and be entrusted, for depositing and having deposited are delegation and entrusting: whoever is among those who may delegate and be entrusted may have a deposit made with him, and whoever is not, may not.
(a) A deposit made with a child without discernment, an insane person or a spendthrift. The jurists of the four schools agree that a deposit is not validly made with a child without discernment nor an insane person (nor a spendthrift according to the majority, contrary to Abu Hanifa), for the purpose of the deposit is keeping, and the child, the insane person and the spendthrift are not among those who keep (Badai' as-Sana'i' 6/207; al-Jawhara an-Nayyira 4/152; ach-Charh al-Kabir with the Hachiya of ad-Dassouqi 5/140-141; Tahrir al-Moukhtasar 4/363; an-Najm al-Wahhaj 6/343-346; Moughni al-Mouhtaj 4/134; Touhfat al-Mouhtaj 8/310; Kachchaf al-Qina' 4/216). The ruling of the case where they destroy or consume it, whether they are liable or not, will come later.
The discerning child authorized to trade may accept the deposit, for he is among those who keep; but the interdicted child who has not been given permission to trade may not validly accept the deposit, for he does not habitually keep property: does one not see that he was barred from his own property? (Badai' as-Sana'i' 6/207; al-Fatawa al-Hindiyya 4/338).
(c) The liability of the child for the deposit if it is lost. The jurists of the four schools agree: if a deposit is made with a child or an insane person (and likewise a spendthrift according to the majority, contrary to Abu Hanifa), and the deposit is lost with him without negligence, no liability falls upon any of them; for if liability is not required in this case from one whose capacity to receive a deposit is valid, it is only more fitting that it not be required from one whose capacity is invalid.
Likewise, no liability falls upon them if the deposit is lost through their negligence in keeping it, so long as none of them directly caused its destruction; for keeping was not required of them, and therefore liability upon negligence is not required either.
They differed if he consumes it or destroys it himself: is he liable or not? The Malikis, the Shafi'is in the sounder view, and the Hanbalis in the madhhab: if a deposit is made with a child (and likewise a spendthrift or an insane person) and he destroys it or consumes it, by eating or otherwise, he is not liable; for its owner invested them with the power of destruction by handing it to them, so liability does not fall upon them.
The Malikis: whoever deposits property with a child or a spendthrift and he destroys it, he is not liable, even if his family permitted him; for its owner is the one who invested him with this power by handing it to him, unless his guardian installed him in his shop, in which case the guardian who installed him is liable, not the child; for by installing him to sell, buy, take and give, he granted him full disposal. The place of non-liability in the deposit is the fact that the child or the spendthrift preserves his own property with what he took; otherwise, he is liable for what he destroyed of the property whose preservation depends on it, that is, he is liable only for the equivalent of what is customarily spent of the like; his excess luxury in eating or clothing is not taken into account; if the property whose preservation depended on him is lost, he is not liable, even if he benefited otherwise.
Al-Lakhmi quantified it: if it was not spent on what he cannot dispense with and he has property, restitution is made from the lesser of his property or the lost item; if that property is gone and he benefited otherwise, he is not pursued for it. Al-Lakhmi said: there is no pursuit against the child nor against the spendthrift, unless they establish that they spent it on what they cannot dispense with: they are then pursued in the property they spent; if they made that property disappear and benefited otherwise, they are not pursued in it (Djami' al-Oummahat 1/404; at-Taj wa-l-Iklil 4/281-282; Charh Moukhtasar Khalil 6/119; ach-Charh al-Kabir with the Hachiya of ad-Dassouqi 5/140-141; Tahrir al-Moukhtasar 4/363).
The Hanbalis in the madhhab: if a person capable of disposal deposits property with a child, an insane person, a mentally deficient person (ma'tuh) or a spendthrift, and they destroy it by eating or otherwise, or it is lost through their negligence, they are not liable, due to the negligence of its owner in handing it to one of these people: it is as if the owner invested them with the power of destruction by handing it to them (Kachchaf al-Qina' 4/216; Charh Muntaha al-Iradat 4/247).
The Shafi'is in the sounder view (and the Hanbalis in a narration): if the child or the spendthrift consumes the deposit or destroys it himself, he is liable for what he destroyed, for he was not invested with the power of destruction: he is liable by destruction, as if he had brought it into his house and destroyed his own property. According to the contradicted view among the Shafi'is: he is not liable; for its owner enabled both of them to destroy it, so he is not liable, as if he had sold it to them, or lent it to them, handing it to them, and they destroyed it (al-Mouhadhdhab 1/359; al-Bayan 6/474; an-Najm al-Wahhaj 6/347; Moughni al-Mouhtaj 4/134; Touhfat al-Mouhtaj 8/310).
Ibn Qoudama (may Allah have mercy on him) said: if a deposit is made with a child or a mentally deficient person and it is lost, he is not liable, whether he kept it or fell short in keeping it; if he destroys it or eats it, he is liable according to the view of al-Qadi and the apparent meaning of the madhhab of al-Shafi'i. Some of our fellows said that he is not liable, and this is the view of Abu Hanifa: for he invested him with the power of destruction by handing it to him, so liability does not fall upon him; does one not see that if he handed a knife to a child and it fell upon him, his liability would be borne by his 'aqila (the group of relatives liable in solidarity)?
Our argument: that for which he becomes liable by destruction before the deposit, he is liable for after the deposit, like the adult; their statement "he invested him with the power of destruction" is not correct: rather, he entrusted him with its preservation; and this differs from the knife, which is a cause of destruction, whereas handing over the deposit is contrary to that (al-Moughni 6/311).
As for the Hanafis, they said: if a deposit is made with a child and it perishes through him, he is not liable by consensus. If he consumes it: if he is authorized to trade, he is liable by consensus. If he is interdicted: if he took it with the permission of his guardian, he is likewise liable by consensus; if he took it without the permission of his guardian, he is not liable according to Abu Hanifa and Muhammad, neither presently nor after reaching maturity. Abu Yusuf said: he is liable presently. If a deposit is made with a slave and he kills him, he is liable by consensus.
The difference is that squandering property is among the habits of the child: if it is handed to him with knowledge of this habit, it is as if one consented to its destruction, and liability cannot be claimed from him. Killing is not so: it is not among the habits of children, so he is liable for it; its value falls upon his 'aqila, and if he transgresses against him in what is below the soul, his indemnity (arch) comes from the child's property.
Al-Babarti said: they agreed that if he consumes the property of another without it being a deposit with him, he is liable immediately (al-'Inaya Charh al-Hidaya 15/472; cf. Badai' as-Sana'i' 6/207; al-Jawhara an-Nayyira 4/152; al-Bahr ar-Ra'iq 8/445; Hachiyat Ibn Abidine 8/333).
This mentioned disagreement was stated regarding the child of reason; as for the child without reason, he is liable by agreement. It is said: rather the contrary, for the child without reason is not liable according to all of them (al-'Inaya Charh al-Hidaya 15/472; al-Bahr ar-Ra'iq 8/445).
The basis is that the deposit of any object that can be acquired is valid. The jurists mentioned conditions regarding the deposited property, set out as follows.
(a) The Hanafi jurists required that the deposited property be property (mal), on condition that possession can be established over it, so that he can keep it; for the deposit is a contract of safekeeping, and keeping a thing without taking possession is inconceivable: the deposit of a bird in the air, of property fallen into the sea and of a runaway slave is therefore not valid (al-'Inaya 12/207; al-Bahr ar-Ra'iq 7/273; al-Fatawa al-Hindiyya 4/338).
(b) The Shafi'is and the Hanbalis required, for the validity of the contract of deposit, that the deposited property be respected and appropriable property. It is thus valid to deposit forbidden wine, the skin of a carcass purified by tanning, manure, or a trained dog, for their acquisition is permitted; but the wine that is not respected, the untrained dog and the impurity whose acquisition is not permitted may not be deposited (Moughni al-Mouhtaj 4/131; Touhfat al-Mouhtaj 8/299; ad-Dibaj 3/106; al-Moubdi' 5/233; Kachchaf al-Qina' 4/203; Charh Muntaha al-Iradat 4/233; Matalib Uli an-Nouha 4/147-148).
(c) The Malikis explicitly affirmed the validity of depositing bonds and documents mentioning rights (al-Moulakhkhas al-fiqhi 10/439; at-Taj wa-l-Iklil 4/257; Mawahib al-Djalil 7/225). Depositing documents should not be a matter of disagreement among the scholars; however, I found only the Malikis explicitly stating the permissibility of depositing documents mentioning rights.
(d) The Imam Ibn 'Arafa, of the Malikis, explicitly affirmed that the deposited property must be transferable; what cannot be moved, such as the rub' (that is, land), cannot be validly deposited (al-Moulakhkhas al-fiqhi 10/439; at-Taj wa-l-Iklil 4/257; Mawahib al-Djalil 7/225).
Ad-Dassouqi (may Allah have mercy on him) said: his statement "property, and every" includes the mention of rights in the definition, for the document is property whose preservation is intended for what it contains. It also includes the real estate whose keeping is entrusted: it is then named a deposit, which al-Wansharisi approved, saying that he saw no one who excluded real estate from being a deposit; but Ibn 'Arafa required that the deposit be transferable, which then excludes the real estate (Hachiyat ad-Dassouqi 5/120).
But the majority of jurists, apart from Ibn 'Arafa, including the Malikis, did not require the deposited property to be transferable; the pledge (rahn) of what is transferable and what is not transferable, like real estate, is valid according to them (al-Jawhara an-Nayyira 4/149; Tabyin al-Haqa'iq 5/76; al-Bahr ar-Ra'iq 7/273; al-Moulakhkhas al-fiqhi 10/439; at-Taj wa-l-Iklil 4/257; Mawahib al-Djalil 7/225; Moughni al-Mouhtaj 4/131; Touhfat al-Mouhtaj 8/299; ad-Dibaj 3/106; al-Moubdi' 5/233; Kachchaf al-Qina' 4/203).