but if it remains intact, it is taken from the second borrower and returned to the original lender. Its rental value, however—from the time the first borrower lent it out until he returns it to its owner—is owed by the first borrower. The author, however, said, “If it is damaged,” meaning that he has framed the case as one in which it is damaged, in order to distinguish between liability for the benefit and liability for the item itself. Thus, if it is damaged while with the second borrower, he is liable for the item itself, while the first borrower is liable for its benefit from the time he lent it to the second borrower until it was damaged.
If it is not damaged, it is returned to its owner, the original lender, and the first borrower is liable for its rental value for the period it remained with the second borrower.
His statement, “He may hold either of them liable,” means that the owner may hold either the first borrower or the second borrower liable for the item itself. The owner may say to the first borrower: “I did not permit you to hand it over to this man, so you have transgressed and are therefore liable.” Or, if he wishes to hold the second borrower liable, he may say to him: “The item was damaged while in your possession, so you are liable.” But if he holds one of them liable, upon whom does the liability ultimately rest? We say: it ultimately rests upon the second borrower if he knew that the first borrower had lent it out without the owner’s permission, for then the liability rests upon him because he has transgressed. If he did not know, then, if the owner holds him liable, he may seek recourse against the first borrower who lent it to him, because the man was unaware. The basic assumption regarding a person’s disposal of something is that he is disposing of his own property; therefore, the ultimate liability rests upon the first borrower.
An example of this is that Zayd borrows a car from Amr, then lends it to Khalid, and the car is damaged. We then say to Amr: “Hold Zayd liable for its benefit from the time he lent it out”