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Chapter twenty-six » Gratuitous Loan (ʿĀriyah) → ← Chapter twenty-four » Surety for the Appearance of a Debtor (Kafālah)

Chapter twenty-five » Deposit (Wadīʿah) and Trust (Amānah)

Ruling 2346. If a person gives some property to someone, saying, ‘Let it be trusted to you’ and the latter accepts, or, if without uttering a word a person conveys to someone that he is giving him some property for safeguarding and the latter accepts in a way that makes it clear he has committed to safeguarding it, then in such cases, the parties must act in accordance with the laws (aḥkām) of deposit and trust, which will be mentioned below.

Ruling 2347. The depositor and the safe keeper must both be of the age of legal responsibility (bāligh), sane (ʿāqil), and no one must have compelled them [to enter into the deposit agreement]. Therefore, if a person entrusts some property to an insane person or to a child, or, if an insane person or a child entrusts some property to someone, it is not valid (ṣaḥīḥ). However, it is permitted (jāʾiz) for a child who is able to discern between right and wrong (mumayyiz) to entrust another person’s property to someone with the owner’s consent. Furthermore, the depositor must not be foolish with finances (safīh)(1) nor have been proclaimed bankrupt (mufallas). However, there is no problem if a person who has been proclaimed bankrupt entrusts property over which he has not been prohibited from having disposal. Also, the safe keeper must not be foolish with finances nor have been proclaimed bankrupt; this is in the event that protecting and safeguarding the deposit would require him to have disposal over his own property in a way that ownership of the property would transfer from him or it would be destroyed.

Ruling 2348. If a person accepts a deposit from a child without the permission of its owner, he must return it to its owner. If the deposited item belongs to the child itself, it is necessary to return it to the child’s guardian (walī). And in the event that it perishes before it is returned to them, the safe keeper must replace it. However, if the deposit is at risk of perishing and it is taken from the child in order to protect and return it to the guardian, then as long as the safe keeper was not negligent in safeguarding or returning it and he did not use it in an unpermitted manner, he is not responsible (ḍāmin) for it. The same applies if the depositor is an insane person.

Ruling 2349. A person who is not capable of safeguarding a deposit must not accept it if the depositor is unaware of his incapability. If he does accept it and it perishes, he is responsible for it.

Ruling 2350. If a person conveys to the owner of the property that he is not prepared to safeguard his property, and he does not take the property from him but the owner nevertheless places it with him and leaves, and the property perishes, then the safe keeper is not responsible for it. However, the recommended precaution (al-iḥtiyāṭ al-mustaḥabb) is that he should, if possible, safeguard it.

Ruling 2351. A depositor may annul the deposit agreement whenever he likes. Similarly, a safe keeper can also annul the deposit agreement whenever he likes.

Ruling 2352. If a person changes his mind about safeguarding a deposit and annuls the deposit agreement, he must return the deposit to the owner or his agent (wakīl) or guardian as soon as he can, or he must inform them that he is no longer prepared to safeguard it. And if he fails to return the deposit to them without a legitimate excuse (ʿudhr) and does not inform them either, in the event that the deposit perishes, he must replace it.

Ruling 2353. A person who accepts a deposit but does not have an appropriate place for it must acquire a suitable place for it. Furthermore, he must safeguard it in a manner such that it could not be said he was negligent in safeguarding it. And if he is negligent in this matter and the deposit perishes, he must replace it.

Ruling 2354. If a safe keeper of a deposit is not negligent in safeguarding it nor excessive with it, i.e. he does not use it in an unpermitted manner, but it so happens that it perishes, he is not responsible for it. However, if he is negligent in safeguarding it – for example, he keeps it in a place that is not secure from being found and taken by an unjust person – or he is excessive – for example, he wears the clothing or rides the horse [that he was entrusted with] – then, in the event that it perishes, he must replace it for the owner.

Ruling 2355. If the owner of some property specifies a place for safeguarding it and he says to the safe keeper, ‘You must look after the property here even if you deem it probable that it will be destroyed’, the safe keeper cannot take it to another place. If he does [take the property to another place] and it perishes, he is responsible for it unless he is certain (i.e. he has yaqīn) that the property would perish there [i.e. in the first location], in which case it is permitted for him to transfer it to a safe place.

Ruling 2356. If the owner of some property specifies a place for safeguarding it and it is understood from what he says that the place is not of any particular significance to the owner, the safe keeper can take it to another place where it would be safer or just as safe as the first place. And in the event that the property perishes there [i.e. in the new location], he is not responsible for it.

Ruling 2357. If the owner of some property becomes permanently insane or unconscious, the deposit agreement becomes void (bāṭil) and the safe keeper must immediately return it to his guardian or inform him of the deposit. If he does not do this and the property perishes, he must replace it. And if the insanity or unconsciousness of the owner is intermittent, the obligatory precaution (al-iḥtiyāṭ al-wājib) is that he must do exactly the same.

Ruling 2358. If the owner of the property dies, the deposit agreement becomes void. Therefore, if there are no other rights on the property and it is to be transferred to his heir, then the safe keeper must return it to him or inform him of it. If he does not do this and the property perishes, he is responsible for it. However, if he holds on to the property in order to find out about the heirs or whether they are the only heirs of the deceased and the property perishes, he is responsible for it.

Ruling 2359. If the owner of the property dies and the property transfers to his heirs, the safe keeper must hand over the property to all of them or to the agent of all of them. Therefore, if he hands over the entire property to one of the heirs without the consent of the others, he is responsible for their shares.

Ruling 2360. If the safe keeper dies or permanently becomes insane or unconscious, the deposit agreement becomes void and his heirs or agent must inform the owner of the property as soon as possible or return the deposit to him. And if the insanity or unconsciousness of the owner is intermittent, then based on obligatory precaution he must do exactly the same.

Ruling 2361. If the safe keeper realises that he is nearing death, then based on obligatory precaution he must, if it is possible, return the deposit to its owner or to the owner’s guardian or agent, or he must inform him. If this is not possible, he must act in a way that he becomes confident (i.e. he attains iṭmiʾnān) that the property will return to its owner after his death. For example, he must write a will (waṣiyyah) and obtain a witness and inform the executor (waṣī) and the witness about the name of the property’s owner, the type of property it is, its particulars, and its location.

Ruling 2362. If the safe keeper has to travel, he can keep the deposit with his family. This is unless safeguarding the deposit is dependent on him being there, in which case he must either stay or return the deposit to its owner or to the owner’s executor (waṣī) or his agent, or he must inform him [about his travel].

(1) Ruling 2091 provides further clarification of this term: it refers to someone who spends his wealth in futile tasks.
Chapter twenty-six » Gratuitous Loan (ʿĀriyah) → ← Chapter twenty-four » Surety for the Appearance of a Debtor (Kafālah)
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