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If I borrowed something from someone and then lost it, am I obliged to pay back?

Answered as per Hanafi Fiqh by Qibla.com

Answered by Shaykh Sohail Hanif, SunniPath Academy Teacher

If I borrowed something from someone and then lost it, am I obliged to pay back?

Answer:
In the Name of Allah, Most Gracious, Most Merciful

Assalamu alaykum

No, you are not religiously obliged to pay it back, unless you lost it because of your undue negligence. In many cases, it may well be superior to do so, especially when the item was dear to the other person.

The Fiqh:

An item borrowed for use is a trust (amana) in the borrower’s hand. The basic rule regarding trusts is that the borrower is not liable for damage to the borrowed good so long as he is unduly negligent. This is the view of the Hanafis and is contrary to the Shafi’is and Hanbalis who oblige the paying back for any damage, even if purely accidental, unless the damage was incurred by directly using the item for what it was borrowed for, in which case no payment is due.

Al-Zayla’i explains the Hanafi opinion in Tabyin al-Haqa’iq Sharh Kanz al-Daqa’iq

“And supporting our opinion is the saying of the Prophet (Allah bless him and give him peace) ‘There is no guarantee on the non-treachorous borrower’.

It is also the opinion of sayyiduna ‘Ali and ibn Mas’ud (May Allah be pleased with them both)… and this is because liability which is necessitated for damage of a good is not obliged except in the case of transgression and permission conjoined with taking the object in question cannot be described as transgression.

Al-Mawsu’a al-Fiqhiyya further elaborates the Hanafi understanding:

“Liability for damages is necessitated either by the contract itself, the way it was seized or by the nature of the permission granted, and none of these is found in this case in a way to ensure liability. As for the contract, the wording used to initiate lending a good doesn’t make the borrower liable for accidental damages as the contract grants him use of the good without asking for anything in return…and a contract placed merely to grant utility of a good has no link with the possession of the good itself such that it should necessitate that one cover the costs in the event of its destruction. As for the way it is seized, this only makes one liable for damages if seized in a transgressionary way [theft for example] and that isn’t the case here as it is taken with the owners permission. And as for the nature of the permission, the condition being placed that the borrower be liable for accidental damages is an invalid condition as the owners permission to seize the good negates such a liability [as no transgression is involved] so it’s being stipulated is meaningless.”

However, that doesn’t mean that the borrower can do whatever he likes with the borrowed item. Rather he is bound by all normally accepted conditions for care of such a good and his stepping outside of such guidelines is termed transgression and he would be liable for any damages incurred. He is also restricted by guidelines laid down by the lender e.g. “Here, borrow my car but don’t go over 60mph”. If one were to drive the car faster than 60mph and the car was subsequently damaged one would have to cover the costs.

And of course the fact the one is not obliged to pay the owner back does not mean that it is somehow wrong to pay him back. Doing so in order to mend a broken heart is certainly a great good deed, and would also be more precautionary as well, considering that the Shafi’is and Hanbalis necessitate such a payment.

The Majalla al-Ahkam al-‘Adaliyya, the Ottoman law code written in the nineteenth century by a panel of highly capable scholars including Ibn ‘Abidin’s son, ‘Ala al-Din Abidin, mentions the rules pertaining to borrowed goods. The section is reproduced in full, below, for those interested. It has useful examples illustrating various possible scenarios. The most important articles are the first four as they mention the basic rules that need to be known.

And Allah knows best.
Sohail Hanif

SECTION II. EFFECT OF A CONTRACT OF LOAN FOR USE AND COMPENSATION FOR LOSS SUSTAINED IN CONNECTION THEREWITH.

· 812. The person to whom a thing has been lent for use becomes owner of the usufruct thereof without giving anything in return[ F: The usufruct is the legal right to use and benefit fro m some one else’s property, on the condition that the property itself is not harmed in any way.]. Consequently, the person giving the thing on loan cannot demand any payment from the person taking such thing on loan after he has used it.

· 813. The thing lent for use is on trust while in the possession of the person to whom it has been lent.

· If it is destroyed without any fault or negligence, or if the value thereof is decreased, there is no need to make good the loss.

o Examples:-

(1). A person to whom a mirror has been lent for use accidentally drops it or slips and knocks it with his foot and it is broken. There is no need to make good the loss.

(2). A carpet lent for use is accidentally stained by something dropping on it so that its value is decreased. There is no need to make good the loss.

· 814. If the thing lent for use is destroyed or the value thereof decreased owing to any fault or negligence, or for any reason whatsoever on the part of the person receiving such thing, the loss must be made good.

o Examples:-

(1). An animal is lent to A to go to a certain place with the proviso that he shall take two days to reach that place. He arrives there in one day and the animal is destroyed or is rendered so weak that its value is diminished. A must make good the loss.

(2). A borrows an animal to go to a certain place. On arrival there he continues his journey on the animal and it dies a natural death. A must make good for the loss.

(3). A borrows a necklace and puts it round the neck of a child. A leaves the child without anyone to look after it and the necklace is stolen. If the child is able to look after the thing which it is wearing, there is no need to make good the loss, but if the child is incapable of doing so, the loss must be made good.

· 815. Expenses occasioned by the upkeep of the thing lent must be borne by the person to whom it is lent. Consequently, if the person who borrows an animal fails to provide fodder for such animal and it dies, such person must make good the loss.

· 816.In the case of an absolute contract of loan for use, that is to say, when the person granting the loan makes no stipulation as to time or place or the use to which the thing lent is to be put, the person borrowing the thing may use such thing at any time or in any place he wishes, subject, however, to custom.

o Examples:-

(1). A lends B his horse absolutely as stated above. B can ride the horse whenever he likes, and to whichever place he likes. He may not ride it to a place in one hour, however, which by custom takes two hours to reach.

(2). A lends B the room of an inn absolutely. B may, if he wishes, live in it or store goods in it. But he may not, contrary to custom, carry on the trade of a blacksmith therein.

· 817. If the loan for use is restricted as to time and place, the restriction is valid and the person to whom the loan is made not act contravention thereof.

o Example:- An animal borrowed for riding for a period of three hours, may not be ridden for four; and an animal borrowed to go to a specific place may not be taken to some other place.

· 818. If the loan for use is restricted as to the use to which it may be put, the person to whom it is lent may not put it to any more exacting use. But if it is out to a similar or less exacting use, the breach of the restriction is valid.

o Examples :-

(1). An animal is borrowed to carry a load of corn iron or stone may not be loaded on him. A load equal to or lighter than the weight of corn may, however, be loaded on him.

(2). A load may not be placed upon an animal which has been borrowed for riding. An animal which has been borrowed to carry loads, however, may be used for riding.

· 819. If the person making the loan makes it absolutely, without specifying the person to whom it is lent may use it as he likes. That is to say, he may use it himself or he may lend it to another person to use, and this, whether the thing lent is one which is not changed by the person using it, such a room, or one that is so changed such as a horse for riding.

o Examples:-

(1). A tells B that he has lent him his room. The person to whom the room is lent may either live in the room himself or let some other person live therein.

(2). A tells B that he has lent him a certain horse. B may either live in the room himself or let some other person ride him.

· 820. The person who is to enjoy may validly be specified in the case of things which change with the change of persons using such things. This is not the case with things which do not so change. If the person making the loan, however, states that it is not to be given to any other person, the person to who m such thing is loaned may not under any circumstances cause it to be used by another. A tells B that he has lent him a certain horse to ride. The person to whom it is lent may not give it to his servant to ride. But if A tells B that he has lent him a room in which to live, B can live in it himself or let some other person live in it. He may not do so, however, if A has told him not to allow any other person to live there.

· 821. If an animal is borrowed to go to a certain place, and there are several roads leading thereto, the borrower can proceed along whichever of the roads he likes in accordance with custom. But if he proceeds along a road which it is not customary to use, and the animal is destroyed, he must make good the loss. Again, if the borrower uses a road other than that prescribed by the lender and the animal is destroyed, the borrower must make good the loss if the road used by him is longer or less than that prescribed by the lender, or not customarily used.

· 822. If a person asks a woman to make him a loan for use of a thing which is the property of her husband, and she gives such thing on loan without her husband’s permission, and it is lost, there is no need for either the woman or the borrower to make good the loss, if it is one of those things which are found in the wombs@s quarter of the house, and which by custom is in the possession of the wife. If the thing borrowed is not one of such things, however, but is a thing which is not in the possession of woman, such as horse, the husband ma, at his option, have the loss made good by the wife or the borrower.

· 825. Upon the lender asking the borrower to return the thing lent, the latter must do so forthwith. If he keeps it delays returning it without any valid excuse and it is destroyed or lost, or there is a decrease in the value thereof, the borrower make good the loss.

· 828. A thing which has been lent for use for a definite period of time, whether express or implied, must be reduced to the lender in the expiration of such period. But any delay which is sanctioned by custom is excused.

o Examples:
(1). Ornaments are borrowed to be used on a certain day until the afternoon. When that time arrives they must be returned.
(2). Ornaments are borrowed to be used at a certain person’s wedding. When the wedding is over the ornaments must be returned. But the time ordinarily necessary for the return of the ornaments is allowed.

· 827. If a thing is borrowed for use in connection with any particular piece of work, such thing, on the completion of such work is regarded as property entrusted for safe keeping to the borrower. He may not use it in any way whatsoever and may not retain it for any period longer than is allowed by custom. If he does so and such property is destroyed, he must make good the loss.

· 828. The borrower must return the thing borrowed to the lender either personally or through some reliable person. If he returns such thing through a person who’s is not reliable, and it is destroyed or lost, he must make good the loss.

· 829. Things borrowed for use which are of great value, such as jewels, must be returned to the lender personally. In other cases, however, it is sufficient to return them at the place where it is customary to do so, or to deliver them to the servant of the lender. Example:- Return of an animal borrowed for use may be effected by delivering it at the stable of the lender or by handing it over to him groom.

· 830. Upon the return of a thing borrowed for use which is in the possession of the borrower, all expenses occasioned thereby, including cost of transport, must be borne by the borrower.

قال الزيلعي في التبيين:وَلَنَا قَوْلُهُ عليه الصلاة والسلام { لَيْسَ عَلَى الْمُسْتَعِيرِ غَيْرِ الْمُغِلِّ ضَمَانٌ } وَهُوَ قَوْلُ عَلِيٍّ وَابْنِ مَسْعُودٍ رضي الله عنهما وَلِأَنَّهُ قَبَضَهُ بِإِذْنِ صَاحِبِهِ لَا عَلَى وَجْهِ الِاسْتِيفَاءِ وَلَا عَلَى سَبِيلِ الْمُبَادَلَةِ فَلَا يَضْمَنُ كَالْإِجَارَةِ الْوَدِيعَةِ , وَهَذَا لِأَنَّ ضَمَانَ الْعُدْوَانِ لَا يَجِبُ إلَّا عَلَى الْمُتَعَدِّي وَمَعَ الْإِذْنِ بِالْقَبْضِ لَا يُوصَفُ بِالتَّعَدِّي في الموسوعة الفقهية: وَلِأَنَّ الضَّمَانَ إمَّا أَنْ يَجِبَ بِالْعَقْدِ أَوْ بِالْقَبْضِ أَوْ بِالْإِذْنِ , وَلَيْسَ هُنَا شَيْءٌ مِنْ ذَلِكَ . أَمَّا الْعَقْدُ فَلِأَنَّ اللَّفْظَ الَّذِي تَنْعَقِدُ بِهِ الْعَارِيَّةُ لَا يُنْبِئُ عَنْ الْتِزَامِ الضَّمَانِ , لِأَنَّهُ لِتَمْلِيكِ الْمَنَافِعِ بِغَيْرِ عِوَضٍ أَوْ لِإِبَاحَتِهَا عَلَى الِاخْتِلَافِ . وَمَا وُضِعَ لِتَمْلِيكِ الْمَنَافِعِ لَا يُتَعَرَّضُ فِيهِ لِلْعَيْنِ حَتَّى يُوجِبَ الضَّمَانَ عِنْدَ هَلَاكِهِ . وَأَمَّا الْقَبْضُ فَإِنَّمَا يُوجِبُ الضَّمَانَ إذَا وَقَعَ بِطَرِيقِ التَّعَدِّي , وَمَا هُنَا لَيْسَ كَذَلِكَ , لِكَوْنِهِ مَأْذُونًا فِيهِ . وَأَمَّا الْإِذْنُ فَلِأَنَّ إضَافَةَ الضَّمَانِ إلَيْهِ فَسَادٌ فِي الْوَضْعِ , لِأَنَّ إذْنَ الْمَالِكِ فِي قَبْضِ الشَّيْءِ يَنْفِي الضَّمَانَ فَكَيْفَ يُضَافُ إلَيْهِ

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