21 – The Book of Deposits (wadīʿah)
A wadīʿah is an amānah (entrusted property) in the hand of the custodian. Should it perish, he bears no liability. The custodian may safeguard it himself or through members of his household; but if he entrusts it to anyone outside them, or re-deposits it elsewhere, he becomes liable—unless a fire breaks out in his house and he therefore passes it to a neighbour, or he is aboard a ship he fears may sink and so transfers it to another vessel.
If the custodian mixes the deposit with his own property so that it can no longer be distinguished, he is liable for it. When the owner demands it and the custodian, though able to return it, withholds it, he incurs liability. If the deposit becomes commingled with his property without any action on his part, the two are treated as joint property and he is deemed a partner of the owner. Should the custodian spend part of the deposit, then replace it with an equivalent amount which he mixes with what remains, he is liable for the whole.
If the custodian commits a transgression with respect to the deposit—for instance, riding an entrusted animal, wearing an entrusted garment, employing an entrusted slave, or depositing the item with someone else—then later ceases the transgression and brings the item back under his own control, the liability is lifted. However, if the owner asks for the deposit and the custodian denies possessing it, and it subsequently perishes, he is liable; a later admission does not free him from that liability.
The custodian is permitted to travel with the deposit, even when it entails carriage and upkeep.
If two people leave a single deposit with a man and one of them later comes and asks for his share, nothing is to be handed over until the other is present, according to Abū Ḥanīfah. Abū Yūsuf and Muḥammad hold that his share may be given to him.
When property that can be divided is deposited with two custodians, it is not lawful for one of them to hand the whole of it to the other; rather, they must divide it so that each keeps half. If the item is indivisible, either custodian may keep it with the permission of the other.
If the owner of the deposit says to the custodian, “Do not deliver it to your wife,” and he nevertheless gives it to her, he is not liable. Likewise, if he instructs, “Keep it in this room,” and the custodian keeps it in another room of the same house, he is not liable. If