Who is liable if a usurped item (maghsub) is entrusted (awda'a) or sold via an agent, and subsequently perishes in the custodian's or agent's possession?
General Chapter
Al-Mughni
Book of Usurpation
Primary text
The owner of the original property may hold either the initial usurper (ghasib) or the subsequent custodian/agent liable for the loss. Liability rests upon the initial usurper because he separated the owner from his property and established wrongful possession over it. Liability also rests upon the custodian (mustawda') and the agent (wakeel) because they established possession over protected property unjustly. If the initial usurper pays compensation, and the custodian and agent were unaware the item was usurped, the guarantee remains solely with the usurper, and they have no recourse against him. If the custodian and agent pay compensation, they may seek recourse against the initial usurper for the value and any associated fees they paid, as they initially took possession without intending to be liable, and received no substitute for what they guaranteed.
Supporting text
If the custodian and agent knew the item was usurped, the guarantee rests firmly upon them, as the perishing occurred under their possession without deception on the part of the usurper. If they pay compensation in this scenario, they have no right of recourse against the usurper. However, if the usurper pays first, they can seek recourse against the custodian and agent because the loss occurred while in their possession.