The correct view, then, is that a fungible item is one for which there is an identical equivalent or a very close equivalent. Thus, if someone borrows a vessel and it breaks, then—according to the view we have chosen—he must compensate for it with an equivalent vessel; whereas, according to the jurists’ view, he must compensate for its value. Requiring an equivalent is closer to justice.
His statement, “on the day it perished,” means at the time it perished. If it is fungible, the matter is clear: the borrower must provide its equivalent, whether its value has risen or fallen. But if it is a non-fungible item, the author says that he must compensate for its value on the day it perished—not at the time compensation is paid, nor at the time of borrowing—because there are three points in time: the time of borrowing, the time of destruction, and the time the claim is made. What is taken into account is the time of destruction, because that is when its owner’s ownership of it ceased—namely, at the time it perished.
For example, a man borrows a vessel on the first of Muharram, it perishes on the fifteenth of Muharram, and the lender demands compensation on the thirtieth of Muharram. The vessel’s value at the time of borrowing was ten, its value at the time it perished was twenty, and its value at the time compensation was claimed was thirty. He is therefore liable for twenty, which was its value on the day it perished. The reason is that, before it perishes, the borrowed item remains the property of its owner: he is entitled to its benefit and bears its loss. Once it perishes, his ownership of it comes to an end; therefore, that is the time at which it is to be valued.
His statement, “even if he stipulates that it is not guaranteed,” means that the borrower is liable for the borrowed item even if he stipulates to its owner that he will not be liable for it. This indicates a difference of opinion, for the scholars differed over whether a borrowed item is guaranteed, whether liability for it is stipulated, liability is expressly disclaimed, nothing is stipulated, or whether it is