And there is no disagreement regarding this among our colleagues; the Qadi mentioned this. Al-Athram narrated with his chain of authority from Abu al-Zinad, that he mentioned the seven jurists of Medina and said: They would occasionally differ on a matter, so we would take the opinion of the majority of them and the most sound of them in judgment. What I retained from them, according to this characterization, was that whoever hires a beast to a certain town, then exceeds that to another town, if the beast remains safe throughout that, he pays its hire and the hire of what was beyond it. If it perishes during his transgression with it, he guarantees its value and pays the hire for which he had hired it. This is the opinion of al-Hakam, Ibn Shubruma, and al-Shafi'i. Al-Thawri and Abu Hanifa said: There is no wage due for what he added, because in their view, benefits (manafi') are not subject to guarantee in cases of usurpation (ghasb). It is reported from Malik that if one exceeds the distance to a far destination, the owner is given the choice between the fair wage and claiming its value on the day of the transgression, because he is a transgressor by holding it and preventing it from its markets, so the owner is entitled to make him liable for it. To us, the entity remains in its state and can be reclaimed, so its value is not due, just as if the distance were short. What he mentioned is an arbitrary claim without evidence or precedent, so it is not permissible to adopt it. The discussion with Abu Hanifa regarding usurpation has already passed.
Second Part: Regarding liability. The apparent meaning of the words of al-Khiraqi is the obligation of its value if it perishes due to his action, whether it perished during the excess or after returning it to the [intended] distance, and whether its owner was with the lessee or not. This is the apparent view of the seven jurists if it perishes while in the state of transgression, according to what we narrated from them. The Qadi said: If the lessee dismounted and handed it over to its owner so that he may hold it or water it, and then it perished, there is no liability upon the lessee. But if it perished while the lessee was riding it, or while his load was upon it, then he is liable for its value. Abu al-Khattab said: If the owner had it in his possession, it is possible that the lessee is liable for its entire value, and it is also possible that he is liable for half its value. And he said
(2) In B and M, there is an addition: "'an" (from). (3) In M: "ta'adihiha" (his transgression with it). (4) In the original: "khayr" (he gives/good). (5) In B: "talafat" (it perished).
