the view that a custodian who trades with a deposit is not to be believed when he claims to have restored it to its proper place, there are three opinions on the matter:

First: the provider’s word is accepted. This is Ibn al-Qāsim’s position, which he also transmitted from Mālik.

Second: the recipient’s word is accepted. This is the position of Rabīʿa and those who followed him.

Third: a distinction is drawn between loss before the recipient put the funds to use and loss after he had used them. If they were lost before he put them to use, the recipient’s word is accepted; if they were lost after he had used them, the provider’s word is accepted. This is Ashhab’s position.

According to the view that a custodian who puts a deposit to use is not discharged from liability until he returns it to its owner, however, he remains liable without the provider being required to swear an oath.

Section

If the recipient says, “I received it for a profit-sharing partnership,” while the provider says, “Rather, I entrusted it to you to trade with it on my behalf,” it is stated in the book that the provider’s word is accepted after he swears an oath. He must then pay the working partner the customary remuneration for such work, unless that remuneration exceeds half the profit, in which case no more than half is awarded.

This means after the working partner has also sworn an oath. The reasoning behind this position is that each party is making a claim against the other: the provider claims that the working partner undertook to work with his funds without remuneration, while the working partner claims that he undertook the work in return for half the profit. If both swear an oath, or both refuse to do so, the working partner receives the customary remuneration for such work, provided it does not exceed half the profit. If one swears an oath and the other refuses, the word of the one who swears is accepted.

This is how the transmitted account should be understood and its wording interpreted. No weight should be given to wording in it that suggests that the provider’s word is accepted, but that if he refuses to swear, the working partner’s word is accepted, according to the rules governing claimant and defendant. Abū Ishāq al-Tūnisī and others understood the case in this latter way. He objected to the statement, “provided he is someone whose like would be employed in a profit-sharing partnership,” saying that if the provider refuses to swear, the working partner’s word should be accepted even if he is not someone whose like would be employed in such a partnership. By refusing to swear, the provider has enabled him to establish his claim, even if it is implausible.