He said: The one who hands the property over is not discharged merely by the recipient’s acknowledgment when that recipient is at the same time claiming that the item has been lost.

Whoever treats the appointed recipient as occupying the same legal position as the one who appointed him says: “The word of the deliverer prevails against the agent just as it prevails against the principal.” This is the doctrine of Abū Ḥanīfah.

By contrast, whoever regards the agent’s trust as weaker says: “The deliverer remains liable unless the recipient actually produces the property.”

If the depositor stipulates that the trustee be liable, the majority still hold that no liability attaches to him, while others maintain that he is to be held liable.

In sum, the jurists unanimously agree that the custodian of a deposit is not liable unless he commits a transgression; they differ, however, over which actions amount to such a transgression.

Among their well-known questions in this chapter is the case of a trustee who spends the deposit and later replaces it with its equivalent, or who withdraws it for his own expenses and then returns it. Mālik says that liability is lifted from him once he returns an equivalent. Abū Ḥanīfah says: If he restores the very same object before spending it, he is not liable, but if he returns only its like, he is liable. ʿAbd al-Malik and al-Shāfiʿī hold him liable in both situations. Hence those who take the stricter view hold him liable as soon as he moves the property intending to spend it, whereas the more lenient do not hold him liable provided he replaces it with something equivalent.

Another point of dispute concerns travelling with the deposit. Mālik says that the trustee may not travel with it unless it was handed to him for the purpose of travel. Abū Ḥanīfah allows him to travel with it as long as the road is safe and the owner has not forbidden it.

They also differ over whether the custodian may, without excuse, place the deposit with someone else. The prevalent view is that he becomes liable if he does so. Abū Ḥanīfah, however, holds that if he leaves it with a person whose maintenance he is obliged to provide, he is not liable, because such a person is like a member of his household. Mālik permits him to entrust what was deposited with him to his own dependants whom he trusts—wife, child, female servant, and the like—who live under his roof.

In general, they all agree that he must safeguard the property in the way people customarily safeguard their own wealth. Whatever is plainly protective is undisputed; when the protective nature of an action is not obvious they differ—such as the case of someone who puts the deposit in his pocket and it is lost. The more common opinion is that he is liable. According to Ibn Wahb, however, if a deposit entrusted in a mosque is placed on one’s sandal and then lost, there is no liability.

They also disagree over liability when loss occurs through forgetfulness—such as forgetting the item somewhere, forgetting who handed it over, or when two people each claim it. One view is that both claimants should swear an oath and the property be divided between them; another is that the custodian is liable to each of them.

If the trustee wishes to travel, Mālik holds that he may leave the deposit with a trustworthy resident of the town and incurs no liability, whether or not he is able to hand it over to the judge. Among the Shāfiʿīs, some say that if he deposits it with anyone other than the judge he is liable.

For Mālik, accepting a deposit is never obligatory, though some scholars say it becomes obligatory when the depositor can find no one else to take it.

The custodian is entitled to no remuneration for guarding the deposit, and whatever accommodation or maintenance it may require is the responsibility of its owner.