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Chapter twenty-seven » Marriage → ← Chapter twenty-five » Deposit (Wadīʿah) and Trust (Amānah)

Chapter twenty-six » Gratuitous Loan (ʿĀriyah)

Ruling 2363. A gratuitous loan is when a person gives his property to someone to use without taking anything in return.

Ruling 2364. It is not necessary that the parties say a particular formula (ṣīghah) [for a gratuitous loan agreement to be valid (ṣaḥīḥ)]. If, for example, a person gives some clothing to someone with the intention (qaṣd) of a gratuitous loan and the latter accepts it with the same intention, it is valid.

Ruling 2365. Lending a usurped (ghaṣbī) item or an item that belongs to the lender but its usufruct has been granted to someone else – such as property that has been given on rent (ijārah) – is valid only if the owner or the lessee consents to the loan.

Ruling 2366. If the usufruct of a property belongs to a particular individual – because he has rented it, for example – then that individual is allowed to loan it to someone else unless a condition is stipulated in the rental contract that only he can use it. And if no such condition is stipulated in the rental contract, then based on obligatory precaution (al-iḥtiyāṭ al-wājib) he cannot hand it over without the owner’s permission.

Ruling 2367. It is not valid if a child, insane person, or someone who has been proclaimed bankrupt (mufallas) or is foolish with finances (safīh)(1) lends out his property. However, if the guardian (walī) deems it a matter of primary importance and lends out property belonging to someone over whom he has guardianship (wilāyah), it is not a problem. Similarly, there is no problem in a child merely being an intermediary for delivering the property to the borrower.

Ruling 2368. If a person is neither negligent in safeguarding the loaned property nor excessive in using it, but it so happens that the property perishes, he is not responsible (ḍāmin) for it. However, if a condition is stipulated that in the event that the property perishes the borrower will be responsible for it, or, if the loaned item is gold or silver, then the property must be replaced.

Ruling 2369. If a person borrows gold or silver and stipulates a condition that if it perishes he will not be responsible for it, in the event that it does perish, he will not be responsible for it.

Ruling 2370. If the lender dies, the borrower must act in accordance with the sequence of steps mentioned in Ruling 2358 concerning the death of an owner in a deposit agreement.

Ruling 2371. If the lender can no longer legally (sharʿan) have disposal over his property – for example, he becomes insane or unconscious – the borrower must act in accordance with the sequence of steps mentioned in Ruling 2357 concerning deposits.

Ruling 2372. The lender and the borrower can annul the gratuitous loan agreement whenever they like.

Ruling 2373. Lending an item that has no lawful (ḥalāl) use – such as instruments of amusement and gambling – is invalid (bāṭil). The same applies to lending gold or silver utensils for the purpose of eating and drinking from them. In fact, based on obligatory precaution, using these utensils in general is unlawful. However, it is permitted (jāʾiz) to lend them for decoration.(2)

Ruling 2374. Lending a sheep for use of its milk and wool and lending a male animal so that it can mate with a female one is valid.

Ruling 2375. If a borrower returns the loaned item to its owner or to the owner’s agent (wakīl) or guardian, and afterwards the item perishes, the borrower is not responsible for it. However, if the borrower takes the property to another location without the permission of its owner or the owner’s agent or guardian, he will be responsible for it, even if the location is one to where the owner would usually take the property. For example, if the borrower ties a horse in a stable which was built by the owner for that very purpose and afterwards the horse perishes or someone causes it to perish, he is responsible for it.

Ruling 2376. If a person lends an impure (najis) item, he must inform the borrower of this in accordance with the instructions mentioned in Ruling 2065.

Ruling 2377. A person cannot give on rent or lend an item that he has borrowed without the owner’s consent.

Ruling 2378. If a person lends some property that he has borrowed to someone without the owner’s consent, in the event that the person who first borrowed it dies or becomes insane, the second person’s loan does not become invalid.

Ruling 2379. If a person knows that the property he has borrowed is usurped, he must return it to its owner; he cannot return it to the lender.

Ruling 2380. If a person borrows some property that he knows is usurped and uses it and it perishes in his possession, the owner can claim compensation for the property and for its use from the borrower or from the usurper. And if the owner acquires compensation from the borrower, the latter cannot claim anything that he has given to the owner from the lender.

Ruling 2381. If a borrower does not know that the property he has borrowed is usurped and it perishes in his possession, in the event that the owner acquires compensation from him, he in turn can claim what he gave to the owner from the lender. However, if the borrowed item is gold or silver, or if the lender stipulates a condition that in the event that the item is destroyed the borrower must replace it, then the latter cannot claim what he gave to the owner from the lender. However, if the owner takes something from him for using the property, he can claim that from the lender.

(1) Ruling 2091 provides further clarification of this term: it refers to someone who spends his wealth in futile tasks.

(2) See Ruling 227.
Chapter twenty-seven » Marriage → ← Chapter twenty-five » Deposit (Wadīʿah) and Trust (Amānah)
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