the house. It differs from a debt, as the substance of the wealth does not become property of the debtor except by his taking possession of it. If the deposit had perished due to his negligence, and it became a liability (dhimma), it is not permissible for him to enter into a Mudaraba with him using it; because it has become a debt.

Section: If he has wealth belonging to him in the possession of another that has been usurped (maghsoub), and he enters into a Mudaraba with the usurper using it, that is also valid; because it is wealth belonging to the owner, and it is permissible for him to sell it to its usurper, and to whomever is able to take it from him, so it resembles a deposit. If it perishes, and becomes a liability, the Mudaraba with it is not permissible; because it has become a debt. Whenever he enters into a Mudaraba with him using the usurped wealth, the liability of usurpation (ghasb) is extinguished by the mere formation of the Mudaraba contract. This is the view of Abu Hanifa. The Qadi said: The liability of usurpation is not extinguished except by him paying it as a price. This is the school of al-Shafi'i; because the Qirad (Mudaraba) does not negate liability, evidenced by what happens if he transgresses in it. Our argument is that he is holding the wealth by the permission of its owner, not specializing in it for his own benefit, and he has not transgressed in it, so it resembles the case where he took possession of it and the owner gave it into his possession.

Section: The agent is a trustee (amin) regarding the Mudaraba wealth; because he is acting upon the wealth of another with his permission, not specializing in it for his own benefit, so he is a trustee, like an agent (wakil). It differs from the borrower (musta'ir); for he took possession of it for his own benefit exclusively, whereas here the benefit is shared between them. Accordingly, the statement is that of the agent regarding the amount of the capital. Ibn al-Mundhir said: Everyone we preserve from the scholars is in agreement that the statement is that of the agent regarding the amount of the capital. This is what al-Thawri, Ishaq, and the people of opinion said, and it is what we maintain. This is because the owner claims against him the receipt of something, and he denies it, and the statement is that of the denier. Likewise, the statement is his regarding what he claims of the wealth perishing or a loss therein, and what is claimed against him of treachery or negligence, and regarding what he claims