Section Ten
Deposits
Al-Wedī‘ah
1215. Al-Wedī‘ah is a contract in which two parties mutually agree that the asset of one of them is to be kept in the care and trust of the other. This is established between the depositor (mūdi’) and the trustee (mūda‘ ‘indah) – called ‘wede’i – through a proposal from one of them and acceptance from the other using any words or deed as that secure it.
1216. All general conditions such as reaching the Islamic legal age, sanity and the like are conditional in both parties, in addition to the ability of the trustee to preserve the trust, so if he is incapable, he is not allowed to accept the deposit, unless the depositor knows that, in which case it is allowed and no compensation will be due from him. However, neither the depositor nor the trusteecan have been indicted for bankruptcy. Also, Islam is not a condition for the depositor, so a non-Muslim’s deposit is acceptable if it is a Sharī‘ah-acceptable asset, not something that is not such as alcoholic beverages and the like; the Muslim must uphold his commitment to him, as he does to Muslims.
1217. A deposit is a type of flexible contract, so it is allowed for both parties to invalidate it whenever they like, unless it was made conditional by one or both of them not to invalidate it for a certain period, in which case it must be observed. However, if one party violates the condition and invalidates the contract before the elapse of the period, he will have sinned and it is an obligatory precaution, then, to weigh the consequences of the invalidation or no invalidation and to reach an agreement that is acceptable to both on the consequences that will befall each one of them.
1218. If the trustee invalidates the contract, he must relinquish the deposit’s obligation, either by taking the asset – immediately – to its owner or his proxy, such as a guardian or an agent, or to inform him about the invalidation so that the responsibility of taking the deposit will be the owner’s, so leaving it with the trustee as a trust (amānah) until he takes it; but if the trustee fails to do either of these two options, it will be regarded as a transgressing control of the asset and compensation will be due from him if it suffers loss or damage, even if not as a result of negligence.
1219. A deposit will be invalidated by the death of the owner, by his absolute insanity or by permanent unconsciousness; it is also invalidated by the death of the trustee, his absolute insanity or unconsciousness.
A deposit does not become invalidated in the cases of insanity or unconsciousness that strike a person only in phases, for both the depositor and the trustee.
1220. If the deposit contract is established with all its conditions, the trustee is obliged to preserve the deposit from damage due to natural or human causes, from loss or burglary, or from becoming defective by a loss, weakness, illness or the like, doing this with all measures that achieve it, such as putting it in a place in which it is safe from the causes of damage or defect, under his permanent care and maintenance, etc.
1221. It is not allowed for the trustee to violate the conditions that the depositor sets to preserve the deposit, whether the place or the method, unless he knows putting the deposit in the specified place in the specified way will lead to its damage, in which case he is allowed to violate the depositor’s instructions and to act in the way that preserves the deposit.
1222. The trustee is not allowed to dispose of the deposit with any manner of disposal, even if the deposit in question is little and common, unless the owner gives him permission to dispose of it in a certain way, or however he chooses, in this case it is allowed.
1223. Compensation becoming due or not due from the trustee for what is deposited with him may be imagined in two situations:
First: The trustee is the one who damaged the deposit – wholly or partially – so compensation is due for what he has damaged, even if his responsibility for the damage was simply allowing it to happen – i.e. indirect.
Second: The trustee is not the damaging party. Here are two possibilities:
a- He – throughout the depositing period – has not violated the owner’s instructions in how to preserve the deposit and has not disposed of it outside the limits drawn by the owner and all the deposit rulings; in this case compensation is not due on the trustee for the damage that befalls the deposit, whether the damage was due to natural causes or the act of others, even if unintentional.
b- He did violate the requirements of the deposit rulings, in this case compensation is due for any damage to the deposit, regardless of its source; compensation is also due from him for loss of any of its benefits in the way that we will explain in misappropriation (ghasb) rulings.