What is the liability if the custodian deposits the item with a third party without the owner's authorization or valid excuse?
General Chapter
Al-Mughni
Book of Deposits
Primary text
If the custodian deposits the item with a third party without a legitimate excuse, he is liable. This is without dispute in the Madhhab and is the view of Shurayh, Malik, al-Shafi'i, Abu Hanifa and his companions, and Ishaq. The basis is that he violated the instruction to safeguard it himself and transferred it without permission.
Supporting text
An alternative view held by Ibn Abi Layla is that there is no liability, as the custodian fulfilled the duty of safeguarding by placing it in another's secure keeping, similar to safeguarding his own property. Regarding recourse, the owner can hold the first custodian liable, and the first custodian cannot claim indemnity from the second, as the second entered the contract as a trustee without liability. A preferred view suggests the owner may hold the second custodian liable because he took possession of property without authorization, similar to a recipient from a usurper. In this case, liability rests primarily with the first custodian, but if the owner seeks redress from the second, the second can then seek indemnity from the first.