without any transgression or negligence, then—if we say that placing the money there is a deposit for safekeeping—the bank bears no liability. But if we say that, since the owner has authorized the bank to dispose of it, it is a loan, then the bank is liable—just as a borrower remains indebted if his own property is destroyed by fire.
“If it is destroyed from among his property, and he has neither transgressed nor been negligent, he is not liable. He must keep it in a place customarily considered secure for such property. If its owner specifies such a place, but he keeps it in a less secure place, he is liable; but if he keeps it in an equally secure or a more secure place, he is not.”
His statement, “If it is destroyed from among his property, and he has neither transgressed nor been negligent, he is not liable”: if it is destroyed along with his own property, then this is even more clearly the case. His statement, “If it is destroyed,” means the deposited property, “from among his property”—such as if it is burned, ruined by rain, or stolen by thieves, while his own property is unaffected. In that case, the custodian is not liable, because he is a trustee who received the property with its owner’s permission. Everyone who takes possession of another person’s property with that person’s permission, or with the permission of the Sacred Law, holds it as a trust.
The established principle concerning a trustee is that he is not liable for what is destroyed while in his possession unless there is transgression or negligence. The evidence is Allah’s saying: “There is no blame upon the doers of good.” [al-Tawbah: 91] The custodian is a doer of good, and so, as long as he is acting rightly, he bears no liability. However, if he transgresses or is negligent, he is liable.
Thus, if he transgresses by taking the deposited property for himself or by undoing its tether, or if he is negligent by placing it somewhere not customarily secure, he is liable. The difference between transgression and negligence, in general terms, is that transgression consists in doing what is unlawful, whereas negligence consists in failing to do what is obligatory. Thus, if the deposited property is food and the custodian eats it, this is transgression. But if it is food and he leaves it outdoors on winter nights until it spoils, this is negligence, because he has failed to do what is required.
If someone were to ask: Why did the author say, “from among his property,” rather than simply saying, “If it is destroyed, and he has neither transgressed nor been negligent, he is not liable?”