وَدِيعة

The deposit (wadi'a) is property placed with another to keep; the Hanbalis add: without return. Making someone a depositary is granting another custody of one's property; the Hanbalis add: as a gift. ¹ It is close to the loan of use, since the hand in both is a trust for some jurists, and to found property, since the finder's hand during the year is a trust; it differs from usurpation, which is seizing property by force and wrong. ² Its lawfulness rests on the sunna and on general consensus, and a report orders the return of trusts to their owner. ³ On the ruling for some cases the text gives two opinions, prohibition and disapproval, and the printed preference is disapproval. ⁴ On its nature there are two views: most jurists (Malikis, Hanbalis and, in the preferred view, Shafi'is) call it a restricted agency, since the depositary keeps but does not dispose; the Hanafis describe it as an express or implied grant to another of custody over one's property; some Shafi'is call it a mere permission, which makes the holder a trustee rather than a depositary. ⁴⁵ If the depositor withdraws, on the permission view the withdrawal is void and the deposit stands; on the contract view the deposit ends and the property stays in hand as a trust that must be returned once possible. ⁵ Its three features: it is a contract either party may end at will, it is a trust contract rather than a guarantee, and it is gratuitous in origin. ⁵⁶⁷ The pillars are the formula, the two parties and the object according to most jurists; the Hanafis count an offer and an acceptance, which may be express, by allusion, or by act. ⁸⁹ The depositary may not charge for keeping unless agreed, customary, or a professional; the Hanbalis forbid stipulating a fee for the deposit itself. ⁸ Capacity for the depositor is discernment according to the Hanafis and full adulthood, sanity and good judgement according to most jurists; a deposit made by a child or an insane person is not valid, and the depositary who takes it bears liability. ¹⁰¹¹ On a discerning child there are four views. Most Malikis, Shafi'is and Hanbalis hold that a child cannot be a depositary at all, so a loss in his hands brings no liability; the Hanafis allow a child licensed to trade; Ibn Rushd allows a discerning child to act as an agent; Ibn Arafa allows it when the holder expects him to keep it. ¹¹¹²¹³ The object must be property for the Hanafis and Malikis, which excludes carrion and blood; for the Shafi'is and Hanbalis it must be property or specially owned, which excludes forbidden wine and instruments of play. ¹⁴¹⁵ Most jurists allow deeds and documents to be deposited, and most allow immovable property, against Ibn Arafa, who requires movables. ¹⁵ The deposit is a trust in the depositary's hand, so there is no liability without transgression or negligence, a view held by most jurists and reported as consensus by Ibn al-Mundhir. ¹⁶¹⁷ For the Hanafis a paid depositary is liable for avoidable loss, while Malikis and Shafi'is make no such distinction. ¹⁷¹⁸ A stipulation that the depositary bears liability is void according to most jurists, and a stipulation that excludes liability for transgression is void for the Hanafis and Shafi'is. ¹⁸¹⁹ The depositary's word on loss is accepted with his oath according to most jurists; the Shafi'is and Hanbalis require proof of an apparent cause such as fire or flood, while for the Malikis, in the preferred view, only an accused depositary swears. ¹⁹²⁰ His word on return is accepted with his oath according to most jurists; for the Malikis he needs witnesses if he took the deposit as a security. ²⁰²¹ The increase of a deposit belongs to its owner, by consensus. ²¹ Upkeep falls on the owner. When milk or fruit is at risk of spoiling, the Hanafis allow sale with the judge's permission, and a sale without one is valid where no judge can be reached. ²² When the owner is absent, the Hanafis and Shafi'is refer the matter to the judge, and the Hanbalis let the judge spend from the owner's property or sell, rent or borrow for him. ²²²³ On spending without the judge's leave there are three views: the Hanafis and Shafi'is give no right of recovery, the Malikis allow recovery of proven costs, and the Hanbalis allow it under conditions. ²³²⁴ The depositary must keep the deposit as he keeps his own property; where the owner has named a place he must keep it there, a lesser place makes him liable, and an equal or better place does not. ²⁴²⁵ Where no place is named, he keeps it in a place customarily safe for such goods, and the standard varies with time and place. ²⁵ The depositary may keep the deposit himself or with dependants whom he trusts with his own property; placing it with others is a transgression for most jurists. ²⁶ When the owner has been absent for long, there are four views on how long to keep it: the Hanafis keep it until the owner's death or life is known; the Malikis wait as long as such a person could live and then pass it to heirs or give it in charity; the Shafi'is keep it or hand it to the judge and, once hope is lost, to the public treasury; the Hanbalis allow charity with intent to guarantee repayment. ²⁷²⁸ The deposit must be returned at once on demand; delay without excuse makes the depositary liable if it is lost. Recognised excuses include night, prayer, and a fear for one's safety, which the Hanafis extend to moral threats. ²⁸²⁹ Return is made by letting the owner take the deposit where it lies, without carrying it to his house. ³⁰³¹ If the depositary dies and the deposit is found in his estate, it is a trust in his heirs' hands, which they must return to the owner. ³¹³² Destroying a deposit without the owner's leave is forbidden and makes the depositary liable by consensus; if the owner ordered its destruction there are two views. Replacing a destroyed deposit does not remove liability for the Hanafis, Shafi'is and Hanbalis; the Malikis excuse fungible goods that are replaced in kind. ³²³³³⁴³⁵ Giving a deposit to a third party without leave or excuse is a transgression that makes the depositary liable, although some allow it for a trusted person when there is a real need. ³⁵³⁶³⁷ Mixing a deposit with other goods so that it can still be separated brings no liability; where separation is impossible or hard, the Hanafis, Shafi'is and Hanbalis hold the mixer liable, and the Malikis hold him liable when the goods differ in kind. ³⁷³⁸³⁹⁴⁰ Travel with the deposit is allowed with the owner's leave; without it the jurists differ on liability according to safety, need and ability to return. ⁴¹⁴²⁴³ Trading with the deposit without leave is a transgression that makes the depositary liable, and there are five views on the profit: to the owner, to the public treasury, to be given in charity, to the depositary, or to be shared between them. ⁴³⁴⁴⁴⁵⁴⁶ Use with leave is lawful; use without leave is a transgression that brings liability and, for the Malikis and Shafi'is, payment of the customary hire. ⁴⁷⁴⁸⁴⁹ Lending, renting, pledging or selling the deposit without leave is a transgression that brings liability; for the Hanafis a sale without leave stands only if the owner approves. ⁵⁰⁵¹⁵² Denial of a deposit after the owner's demand makes the depositary a usurper and liable, and the Hanafis set seven conditions for this. ⁵³⁵⁴ Waste, neglect of an animal entrusted to him, forgetting the deposit, and failure to name it in a will when death is near can all bring liability, though the jurists differ on the detail. ⁵⁵⁵⁶⁵⁷⁵⁸⁵⁹ The contract ends by death or insanity of either party, by withdrawal or removal of the depositary, by transfer of the property, or by denial; the property then stays with the holder as a trust that must be returned. ⁶⁰⁶¹⁶²⁶³ Disputes over the deposit cover whether a depositary may sue a usurper to recover it, and how several depositaries share custody and loss. ⁶⁴⁶⁵ Where the depositor and the depositary disagree on the terms of the deposit, on what was received, or on who owns a deposit claimed by two people, the jurists give rules on proof, oath and division. ⁶⁶⁶⁷⁶⁸⁶⁹⁷⁰