and killed it, and as if he said: "Do not take the deposit out, even if you fear for it," and he feared for it but did not take it out, or if its owner ordered him to throw it into a fire or the sea. With this, what they mentioned is refuted. Ibn al-Mundhir forbade the ruling in the case where he ordered him to destroy it and he destroyed it, due to what has preceded. That is not correct, because it belongs to its owner, so he did not cause him a loss of anything, just as if he appointed him as a deputy in a permissible matter. The prohibition's effect is in the persistence of the right of Allah the Almighty, which is the sin; as for the right of the human, it does not remain alongside his permission for its loss. Furthermore, it did not perish by his action, but rather it perished by the act of refraining from feeding, which was permitted. It is similar to if he had said to him: "Do not take it out if you fear for it," and he did not take it out.

1073 - Issue: He said: "And if a deposit is in his possession, and two people claim it, and he says: 'One of them deposited it with me, but I do not know which one,' they shall draw lots between them. The one to whom the lot falls shall swear that it is his, and it shall be delivered to him."

The summary of this is that whoever has a deposit, and two people claim it, and he acknowledges it to one of them, it is delivered to him, because his possession is evidence of his ownership. If he claimed it for himself, his word is accepted. So if he acknowledges it for someone else, it must be accepted, and he is obligated to swear an oath to the other, because he is a denier of his right. If he swears, he is cleared, and if he refuses, he is obligated to pay him its value, because he caused its loss to him. Likewise, if he acknowledges it for the second one after having acknowledged it for the first, it is delivered to the first because he established his right to it by his acknowledgment, and he must pay its value to the second. Ahmad explicitly stated this. If he acknowledges it for both of them, it is between them, and he is obligated to take an oath for each one of them regarding half of it. If he says: "It belongs to one of them, I do not know which one specifically," and they acknowledge his ignorance, the rightful claimant is determined, and he is not required to take an oath. If they claim he knows, he must take one oath that he does not know that. Abu Hanifa said: He must take two oaths, just as if he denied that it belonged to both of them. Our argument is that what is being claimed against him is one matter, which is knowledge of the identity of the owner, so one oath is sufficient for him, just as if they both claimed it and he acknowledged it for one of them. It differs from when he denies it, because each one of them claims against him that it is theirs; therefore, they are two claims. If he swears, lots are drawn between them, and whoever wins the draw against his companion swears, and it is delivered to him. Al-Shafi'i said: They mutually swear, and the item is held between them until they reach a settlement. This is the view of Ibn Abi Layla, because he does not know which of them is the owner. There is another view attributed to al-Shafi'i that it is divided between them, as if he acknowledged it for both. This is what Ibn al-Mundhir reported from Ibn Abi Layla, and it is the view of Abu Hanifa and his two companions as narrated from them. They said: The bailee is liable for half of it to each of them, because he caused the loss of what was deposited with him through his ignorance. Our argument is that they are equal in the right regarding what is not in their hands, so it is necessary to draw lots between them, like two slaves if he freed them during his terminal illness and only one of them could be covered by the one-third, or as if he intended to travel with one of his wives. The statement of Abu Hanifa is not correct; for the physical asset has not perished, and if it had perished without negligence on his part, there would be no liability. There is no negligence in his ignorance, as it is not within his capacity to not forget or not be ignorant.

1074 - Issue: He said: "And whoever is entrusted with something and takes some of it, then returns it or its equivalent, and the rest is lost, he is held liable for the amount he took."

The summary of this is that whoever is entrusted with something and takes some of it, he is liable for what he took. If he returns it or its equivalent, the liability does not cease from him. Shafi'i held this view. Malik said: There is no liability on him if he returns it or its equivalent. The scholars of opinion (Hanafi school) said: If he did not spend what he took and returned it, he is not liable, but if he spent it then returned it or its equivalent, he is liable. Our argument is that the liability was attached to his personal responsibility upon taking it, evidenced by the fact that if it had perished in his possession before returning it, he would be liable for it; thus, it does not cease except by returning it to its owner, like usurped property. As for the rest of the deposit, it is to be considered; if it was in a sealed or tied bag, and he broke the seal or untied the knot, he is liable, regardless."