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Al-Mughni by Ibn Qudama - Edited by Al-Turki
Volume 9 · Page 264

Translation · EN

except that if he feared for it and did not remove it until it was destroyed, there are two views: One is that he is liable, for the reason we mentioned in the previous case. The second is that he is not liable, because he is complying with the command of its owner. Also, if he removed it without an excuse, he is liable, whether he removed it to a similar place, a less secure one, or a more secure one, because he contradicted its owner without any benefit. This is the apparent view of al-Shafi'i. Abu Hanifa said: If he forbade him from moving it from a house, and he moved it to another house within the same residence, he is not liable; because two houses within one residence constitute one secure place, and the path to one is the path to the other, so it is similar to moving it from one corner to another. And if he moved it from one residence to another, he is liable. Our position is that he contradicted the command of its owner without any benefit, so he is liable, just as if he had moved it from one residence to another. And what he used to differentiate is not correct, because the houses of a residence differ; some are closer to the path, or to the place of fuel, or to collapsing, or easier to open, or its door is easier to break, or its wall is weaker and easier to breach, or because the owner lives in it or lives in another, and similar things that have an effect on its preservation or lack thereof. Thus, it is not permitted to cause the loss of the owner of the deposit's purpose in specifying it without necessity. If he feared for it in its place, he is obligated to move it, and if he left it and it was destroyed, he is liable; because the prohibition of its owner from moving it was only for the sake of its preservation, and its preservation here is in moving it, so it is similar to the case where he did not forbid him from moving it. If he said: "Do not move it even if you fear for it," and he removed it without fear, he is liable. And if he removed it while fearing for it, or left it and it was destroyed, he is not liable; because his prohibition in the face of the fear of destruction is an explicit text regarding it, and a clear statement, so he is permitted to leave it in that situation, and thus he is not liable for it due to his compliance with the command of its owner, just as if he said to him: "Destroy it," and he destroyed it. He is not liable if he removed it, because it is an act of added goodness and preservation, so he is not liable for it, just as if he said to him: "Destroy it," and he did not destroy it until it was destroyed.

Notes

(7) Omitted from A. (8) In M: "or easier". (9) Omitted from M. (10) In M: "li-tatlafa" (so it would be destroyed).

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