Book of Deposits (Kitāb al-Wadīʿah)

The greater part of the questions that the jurists of the provincial centers discuss concern the rulings on deposits. Among them are the following:

1. They agree that a deposit is a trust for which the trustee (bailee) bears no liability, apart from a solitary report attributed to ʿUmar ibn al-Khaṭṭāb.

2. The Mālikīs say: The evidence that it is a trust is God’s command, “Return the trusts to their owners,” in which He did not require the presence of witnesses. Consequently, if the depositor later denies having received the article, the trustee is believed when he claims to have returned it, provided he swears an oath.

   They add: This presumption is overturned only when the trustee returned the item in the presence of witnesses; in that case, his statement is not accepted.

   Their reasoning is that once he has handed it back before witnesses, it is as though the depositor had entrusted him only with safekeeping, not with delivery. Hence he is believed if he alleges that the article perished, but not if he alleges that he returned it. This is the view commonly reported from Mālik and his companions.

3. It is related from Ibn al-Qāsim that the trustee’s word is accepted even when he returned it with witnesses present. This is also the position of al-Shāfiʿī and Abū Ḥanīfah and is supported by analogy, for it distinguishes between a claim of loss and a claim of restitution and avoids undermining the very nature of the trust. This applies when the trustee delivers the property to the same hand from which he had received it.

4. As for one who gives it to a hand other than the one from which he took it, Mālik holds that he must do what is required of an orphan’s guardian—namely, call witnesses; otherwise he is liable. Mālik bases this on the Almighty’s words: “When you hand over to them their property, call witnesses over them” (Q 4:6).

   If that recipient then denies having taken delivery, the trustee is not believed in his claim to have handed it over, according to Mālik and his companions, unless he produces evidence. Some have said, however, that one might draw from the school the view that he would still be believed. For Mālik it makes no difference whether the depositor explicitly ordered the trustee to hand the article to that person or gave no such instruction.

5. Abū Ḥanīfah says: If the trustee alleges that he delivered it to the person whom the depositor named, his word is accepted upon oath. If that second person—someone other than the original depositor—admits receiving the deposit yet claims it was destroyed, the matter is one of two cases: either the trustee delivered it as an entrustment (so the second person is the trustee’s agent, hence a trustee himself) or he delivered it into a liability (dhimmah).

   a. If the recipient is a trustee, two reports exist from Ibn al-Qāsim. In one he says: The trustee is cleared once the recipient confirms receipt; any loss then falls upon the principal who ordered the agent to take possession. In another he says: The trustee is not cleared unless he produces proof of delivery or the recipient brings forth the property itself.

   b. If he delivered it as a debt—such as when someone tells the holder of the deposit, “Hand it over to me as a loan for merchandise,” and the like—then, if the debtor’s financial status is sound, the trustee is discharged according to the school without controversy. If the debtor is insolvent, two opinions are reported.

The reason for all these disagreements is that the character of a trust strengthens the claimant’s position so that his statement, accompanied by an oath, is accepted.

Whoever equates the trust held by the person whom the depositor instructed to receive the article (i.e., the agent) with the original trust lodged with the first trustee says: The agent’s word is accepted when he claims the item was lost, just as the first trustee’s word is accepted.

But whoever considers that second trust to be weaker—