As for if he transgresses against it or is negligent in safeguarding it, and it is destroyed, he is liable for it (5), without any disagreement that we are aware of; because he has destroyed the wealth of another, so he is liable for it, just as if he had destroyed it without a deposit agreement.

Section: If the owner of the deposit stipulates that the depositee must be liable for the deposit, and he accepts it, or says: "I am liable for it," he is not liable. Ahmad said regarding a person who is given a deposit: If he says, "I am liable for it" (6), and it is then stolen, he bears no responsibility. The same applies to everything the basis of which is a trust, such as mudarabah (profit-sharing), partnership wealth, collateral (rahn), and agency (wakalah). This was the view of al-Thawri, al-Shafi'i, Ishaq, and Ibn al-Mundhir. This is because it is a condition of liability for something for which the cause of liability has not occurred, so it is not binding, just as if he had stipulated liability for something that is destroyed while in the possession of its owner.

1067 - Issue: He said: "If he mixes it with his own wealth, in such a way that it cannot be distinguished, or he does not guard it as he guards his own wealth, or he deposits it with someone else, then he is liable."

This issue contains three sub-issues. One of them is that if the depositee mixes the deposit with his own wealth or someone else's wealth such that it cannot be distinguished, he is liable for it, whether he mixes it with something of its own kind, something inferior, something of higher quality of the same type, or something of a different type, such as if he mixes dirhams with dirhams, or oil with oil, like olive oil, or ghee, or other things. This is the view of al-Shafi'i and the jurists of reasoning (Ashab al-Ra'y). Ibn al-Qasim said: If he mixes dirhams with dirhams in a way that provides safekeeping (hirz), he is not liable. It is narrated from Malik that he is not liable unless it is with something inferior, because he would be unable to return it except in a deficient state. Our position is that since he mixed it with his own wealth in a way that it cannot be distinguished (3), it is incumbent that he be held liable for it, just as if he had mixed it with something inferior. This is also because when he mixes it with something that cannot be distinguished, he has forfeited for himself the possibility of returning it, so he is obligated for its liability, just as if he had thrown it into the depths of the sea.