The implications of the responsibility of a custodian of things in Islamic law and jurisprudence, and the position of Islamic jurisprudence and the judiciary on them.

Hassan, Naseef Jassim Mohammed

doi:10.63677/jqlap.2025.187081

The implications of the responsibility of a custodian of things in Islamic law and jurisprudence, and the position of Islamic jurisprudence and the judiciary on them.

https://doi.org/10.63677/jqlap.2025.187081

Volume 16, Issue: 1 part 2 - Serial Number 1
Spring 2025

Pages 715-732

AL-Qadisiya Journal For Law and Political Sciences

Document Type : Research Paper

Author

Naseef Jassim Mohammed Hassan

Tikrit University, College of Political Science

Abstract

This study deals with the implications of the responsibility of the guardian of things in both Islamic law and jurisprudence, with an analysis of the position of jurisprudence and the judiciary on this responsibility. The study reviews the concept of guardianship of things and the basis of responsibility in positive laws, with a focus on the rules regulating it, such as the theory of presumed error or objective responsibility. It also examines the concept of guardianship in Islamic jurisprudence and the extent of its compatibility or disagreement with modern legal concepts.
The study sheds light on the effects of this responsibility in terms of compensation, transfer of the burden of proof, and other legal effects resulting from the establishment or denial of responsibility, with a review of the position of the judiciary on its various applications. It also discusses the jurisprudential trends in adapting the responsibility of the guardian of things according to the general jurisprudential rules such as the rule of "guarantee by transgression" and the rule of "loss by gain".
The study concluded with a set of results and recommendations that enhance the understanding of this responsibility and help in developing legal and jurisprudential rules in line with the developments of the era.

Keywords

Liability of the guardian of things

civil law

Islamic jurisprudence

presumed error

objective responsibility