Is it valid to stipulate that the borrower is not liable for the item if it is destroyed?
General Chapter
Al-Mughni
Book of Loan for Use
Primary text
If the owner stipulates the negation of liability (nfy al-daman), this stipulation does not void the liability; this is the position of Al-Shafi'i. This is because every contract that inherently requires liability cannot be altered by stipulation, similar to property taken under a valid or void sale contract. Furthermore, contracts that inherently require the item to be a trust (such as deposits and partnerships) are similarly unaffected by contrary stipulations.
Supporting text
Abu Hafs Al-Ukbari stated that the stipulation of non-liability voids the liability. Al-Khattab indicated that Ahmad bin Hanbal leaned toward this view, which is also the position of Qatadah and Al-Anbari. Their reasoning is that if the owner had permitted destruction, liability would not be required, so it follows that if they stipulate non-liability, it is waived. A different view attributed to Qatadah and Al-Anbari suggests the item is only a trust unless the owner stipulates liability, in which case liability becomes obligatory based on the Prophet's saying to Safwan, "Nay, it is a guaranteed loan."