Is the lender liable for cutting if property belonging to the borrower is stolen from a house loaned by the lender after the lender breached it?
Chapter on Amputation in Theft
Al-Mughni
Book of Ḥudūd (Prescribed Penalties)
Primary text
The lender is liable for cutting if property belonging to the borrower is stolen after the lender breached the structure of the loaned house. This is one of the opinions held by Al-Shafi'i. The evidence is the same as that established in the preceding case: the place became a protected enclosure for the property of another, and the lender is prohibited from entering it. The lender's right to reclaim the property does not justify this action; the right is limited to demanding its return.
Supporting text
Abu Hanifa holds that there is no cutting penalty because the usufruct remains the lender's property, meaning the lender did not breach another's enclosure. Furthermore, the lender has the right to reclaim the property whenever desired, and this breach should be considered a form of revocation of the loan.