awning or tent to Makkah, and something is lost from the lessee by theft or disappearance—is he liable? He said: "I hope he is not liable. How could he be liable? If it is gone, he is not liable." We do not know of any disagreement on this. This is because he took possession of the item to fulfill a benefit he is entitled to from it, so it was a trust, just as if he took possession of a slave to whom the service is bequeathed for a year, or the husband takes possession of his wife who is a slave. It differs from the loan for use (ariyyah), for he is not entitled to its benefit. When the period expires, he must remove his hand (from it), but he is not required to return it. He alluded to this in the narration of Ibn Mansur, for it was said to him: "If one hires a riding beast, or borrows one, or is entrusted with one, is he not required to carry it back?" Ahmad said: "Whoever borrows something, he must return it to the place from which he took it." So he made the return obligatory in the loan for use (ariyyah), but did not make it obligatory in the lease and the trust (wadi'ah). The reasoning is that it is a contract that does not require liability, so it does not require its return or the expenses of it, like the trust. It is distinct from the loan for use, for its liability is obligatory, and so is its return. Accordingly, whenever the period expires, the item in his hand is a trust, like a trust, and if it is destroyed without negligence, there is no liability upon him, and this is the opinion of some of the Shafi'iyyah. Some of them said: He is liable, because after the expiration of the lease, he is not permitted to retain it, so it resembles the time-limited loan for use after its time. To us, it is a trust, resembling the deposit, and because if its liability were obligatory, its return would be obligatory. As for the loan for use, it is guaranteed in all cases, unlike our case, and because it is obligatory to return it. In any case, whenever the owner requests it, it must be surrendered to him; if he refuses to return it without an excuse, it becomes guaranteed, like a usurped item.

Section: If the lessor stipulates upon the lessee the liability for the item, the condition is invalid, because it contradicts the requirement of the contract. Does the lease become invalid due to it? There are two views, based on the invalid conditions in a sale. Ahmad said, regarding the case where he stipulates the liability for the item: "The lease and the guarantee are disliked." Al-Athram narrated, with his chain of narration, from Ibn Umar that he said: "Leasing with a guarantee is not valid." And it is reported from the jurists of Medina that they used to say: "We do not lease with a guarantee, except that the one who stipulates on a transporter that he does not unload his goods"