What is the liability of a custodian who takes a portion of a deposit but later returns it or its equivalent?
General Chapter
Al-Mughni
Book of Deposits
Primary text
When a custodian takes a portion of a deposited item, liability for the portion taken is established. If the custodian returns the actual item taken or an equivalent, the liability does not necessarily cease. The liability attached to the custodian's responsibility upon taking the item; evidenced by the fact that if the item perished while in their possession before being returned, they would be liable. Therefore, the liability only ceases upon returning it to the owner, similar to wrongfully seized property (maghsub).
Supporting text
Malik holds that there is no liability if the item or its equivalent is returned. The proponents of the opinion of Al-Ra'y state that if the custodian spends what they took but returns it or its equivalent, they are liable; otherwise, they are not. Regarding the remainder of the deposit, if it was in a sealed or tied container, breaking the seal or knot establishes liability for the entire deposit, even if nothing was removed, because the custodian violated the protective enclosure (hirz) through a trespassory act. If the coins were not in a sealed bag, or the item was clothing and one item was returned in kind, only the item taken is subject to liability, provided the replacement was distinguishable. If the replacement was indistinguishable, liability may extend to the whole deposit in some views, as mixing what was taken with what remains might imply destruction of the remainder's unique status.