What is the ruling when the custodian moves the property from one house to another within the same dwelling area, contrary to the owner's prohibition?
General Chapter
Al-Mughni
Book of Deposits
Primary text
If the owner forbids moving the property from one house to another within the same dwelling area, and the custodian moves it to another house in the same compound, Abu Hanifa holds there is no liability, as both houses constitute a single secure location ('hirz wahid'). The reasoning is that the pathways and security considerations are often shared. However, the preferred view is that liability is incurred because the move constitutes contravention of the owner's specific instruction without valid necessity. The differing physical attributes of houses—such as proximity to the road, fuel source, risk of collapse, ease of access or breakage of locks/walls, or whether the owner resides there—affect security, rendering the owner's specific designation significant.
Supporting text
If the custodian moves the property from one house to a different house entirely, liability is incurred. If the custodian fears harm in the designated place and moves it despite the owner's prohibition on removal, they are liable if they left it and it was destroyed, as the owner's prohibition was intended for preservation, which necessitated removal in this case. If the owner explicitly states, 'Do not remove it even if you fear harm,' and the custodian removes it without fear, they are liable. If the custodian removes it due to fear, or leaves it and it is destroyed, there is no liability, as the owner's prohibition in the face of perceived harm constitutes explicit permission to act to preserve it, similar to if the owner commanded its destruction and the custodian complied.