specified on the understanding that he would be exempted from liability. Ashhab said that the stipulation is effective and exempts him from liability; according to his view, he is entitled to the stipulated fee. Likewise, if a borrower or pledgee stipulates that he will bear no liability for property that can be kept out of sight, the stipulation does not avail him according to Mālik and Ibn al-Qāsim, contrary to Ashhab’s view. For if Ashhab gives effect to such a stipulation for artisans and exempts them from liability, there is all the more reason for him to give it effect for a borrower and exempt him from liability. Yet in some transmissions in the Book of Loans for Use in al-‘Utbiyya, he holds that the stipulation is invalid, agreeing with Ibn al-Qāsim.
Sound reasoning requires that the stipulation be effective for a borrower, because someone who lends him property that can be kept out of sight and exempts him from liability has done him two favors. The same applies to a pledge if it was not stipulated in the original sale and was voluntarily furnished after the sale was concluded. Thus, three positions emerge: giving effect to the stipulation; invalidating it; and distinguishing between a borrower and a pledgee who receives the pledge after the sale has been concluded, on the one hand, and an artisan and a pledgee who receives it under the sale contract, on the other.
Section
As for a stipulation making a borrower or pledgee liable for property that cannot be kept out of sight, Mālik’s view is that the stipulation is invalid. If a lender stipulates that the borrower must bear liability for such property, and a judicial ruling relieves the borrower of that liability, he ought to be required to pay a hire charge for using it. This is because the transaction has departed from the nature and established terms of a loan for use and become an invalid hire contract: the animal’s owner agreed to lend it only on condition that it be secured by the borrower’s liability.
I have seen a transmission to this effect from Ashhab, cited by Abū Ishāq al-Tūnisī. He said that the apparent meaning of al-Mudawwana is otherwise: the stipulation is invalid, and no hire charge is due. Ashhab’s view is well-founded and should be understood only as an elucidation. Abū Ishāq’s statement occurs in the Book of Pledges in his work.
Ibn Habīb related from Mutarrif a distinction concerning this matter: if the lender stipulated liability because of something he feared, such as a dangerous road, thieves, or the like, the stipulation binds the borrower if the property is lost through the particular danger feared. If it is lost through something else, the stipulation does not bind him. Asbagh said that he owes nothing in either case, and this is Mālik’s position. Success comes from Allah.