for the apparent meaning of this hadith could validly establish liability only if the Messenger of Allah, peace and blessings be upon him, had replied to Safwān’s question, “Is this a loan for which liability is assumed, or one merely to be returned?” by saying, “A loan entails liability and must be returned.” Moreover, this hadith is counterbalanced by the report that he said, “Rather, a loan to be returned,” thereby excluding liability while requiring its return. Someone might, however, argue that the former wording contains an addition, and an addition transmitted by a trustworthy narrator is accepted. Likewise, his statement, peace and blessings be upon him, “The hand bears liability for what it has taken until it returns it,” applies only while the property itself remains. If it has perished, the statement cannot validly be understood as referring to its value: no mention was made of its value, and he required only the return of what the hand had taken—and the hand did not take its value.

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As for the reasoning and analogy supporting this position, the arrangements under which property is taken into possession to benefit from its use are of two kinds:

The first is a contract involving consideration, namely hire.

The second is a contract without consideration, namely a loan for use or the provision of a servant’s services.

Consideration affects liability and gives rise to an obligation to pay that consideration. Yet taking possession of property to benefit from its use, with its owner’s permission and in return for a payment for which one is liable—a factor affecting liability—does not entail liability for the property itself. Property taken without consideration should therefore, all the more, entail no such liability.

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The reasoning of those who impose liability even when evidence establishes the loss is that the property was originally taken on a basis of liability. It should therefore remain subject to that original rule as a safeguard. The first reported position is sounder, for the reasons already explained: the establishment of loss by evidence removes suspicion and rules out negligence, which is a ground for waiving liability.

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If the borrower stipulates that he will bear no liability for property that can be concealed, his condition is invalid, and he remains subject to