The Receiver of Goods for Trial (Akhidh bi’l-Sawm) and the Legal Enforcement of Liability in Islamic Jurisprudential Schools and Iranian Law

Abstract

The term Akhidh bi’l-Sawm refers to a person who receives a good from its owner for the purpose of inspection or trial with the intent of possibly purchasing it upon satisfaction. The primary legal issue concerning the Akhidh bi’l-Sawm is determining the type of liability incurred if the good is damaged or lost without negligence or misconduct. Within Imamiyyah jurisprudence, two primary views are presented. One group considers the possessor’s hand (yad) as a trust-based possession (yad amaniyyah), thereby limiting liability to cases of misconduct or negligence, on the basis that the owner has granted conditional permission for possession. Conversely, another group holds that the yad is liability-based (yad damaniyyah), assigning absolute responsibility to the possessor. They rely on the legal maxim "Upon the hand is what it takes until it returns it" (‘ala al-yad ma akhadat hatta tu’addih), indicating liability even in the absence of fault. This divergence stems from different interpretations of prophetic traditions and the extent of the owner’s authorization. Other Islamic legal schools also present varied opinions regarding the liability of the Akhidh bi’l-Sawm. In the Maliki school, such possession is deemed unauthorized, and absolute liability is imposed. The Shafi’i and Hanbali schools similarly assign absolute liability, likening the possession to usurpation (ghasb). The Hanafi school includes liability for both the goods and their benefits, regardless of intent or negligence. Under Iranian law, the Civil Code does not categorize the Akhidh bi’l-Sawm as a trustee (amin), and his liability is typically contingent on either returning the goods intact or compensating for their value. Article 631 of the Civil Code restricts the instances qualifying as trusteeship, and the Akhidh bi’l-Sawm is not among them. The owner grants conditional permission, requiring either safe return of the item or payment of its value, thus placing the possessor's liability between limited and absolute. Ultimately, the concept of Akhidh bi’l-Sawm remains a jurisprudential and legal point of contention, significantly impacting contractual relationships and commercial dispute resolution. A precise understanding of this concept is essential for legal scholars and practitioners.