Is an appointed trustee liable for the loss of the sale price if the mortgaged property is sold with the consent of both parties and the price perishes in the trustee's possession without negligence?
General Chapter
Al-Mughni
Book of Pledges (Collateral)
Primary text
The appointed trustee is not liable for the loss of the price if it perishes in his hands without transgression, as he is considered a fiduciary, similar to an agent (wakil). This view is held by Al-Shafi'i. The liability for the loss falls upon the mortgagor. The basis for this ruling is that the trustee is the mortgagor's agent in the sale, and the price belongs to the mortgagor. Therefore, since the trustee is holding it on the mortgagor's behalf, any loss reverts to the mortgagor, consistent with other fiduciaries. If the trustee claims the price perished, his word is accepted upon taking an oath because he is a fiduciary and providing proof of its destruction is difficult for him.
Supporting text
Abu Hanifa and Malik hold that the liability rests with the mortgagee because the sale was conducted for his benefit. Regarding the trustee's claim of non-receipt of the price, there are two opinions: one accepts the trustee's word with an oath, as he is a fiduciary; the other rejects it because this constitutes discharging the buyer from the price, which is not accepted based solely on his word.