liability. This was stated by Ibn al-Qāsim in some recensions of al-Mudawwana. It also appears in al-ʿUtbiyya as the position of Ashhab and Ibn al-Qāsim, transmitted from them by Asbagh in some recensions of the Book of Loans for Use. According to what Ibn Abī Zayd relates in al-Mukhtasar from Ashhab concerning a craftsman who stipulates that he will bear no liability—that his condition is valid and he bears no liability—such a condition would also avail the borrower. For if it is binding in the case of craftsmen, it is all the more deserving of being binding in the case of a borrower: by lending to him on condition that he bears no liability, the lender has shown him kindness in two respects. The more evident ruling, therefore, is to give effect to the condition; there is no basis for setting it aside, unless this is regarded as relinquishing a right before it arises, in which case it would not be binding according to one of the two views.
Section
If, however, the lender stipulates that the borrower must bear liability for property that cannot be concealed, or for property that can be concealed even when evidence establishes its loss, Mālik—may Allah have mercy on him—and all his companions hold that the condition is wholly invalid, without distinction. The exception is Mutarrif, who said that if liability was stipulated because of a feared danger, such as a perilous road, a river, robbers, or the like, then the condition is binding if the property perishes through the very danger that prompted the stipulation. Asbagh said that the borrower bears no liability in either case, agreeing with Mālik and his companions.
If the lender stipulates that the borrower must bear liability for property that cannot be concealed, and a judicial ruling releases the borrower from that condition, the borrower should be required to pay the customary hire charge for his use of the borrowed property. This is because the condition takes the arrangement outside the rules and established practice governing loans for use and places it within the category of an invalid hire contract. The owner of the riding animal consented to lend it only on condition that the borrower take possession of it while assuming liability for it. This constitutes an unspecified consideration, which must be replaced by a determinate one.
Section
When the borrower becomes liable for the borrowed property, he is liable only for the value of the item itself as of the expiry of