Explanation of Article 522
The article, along with the following two articles (523, 524), sets forth the contract of custody, which is one of the contracts concerning a disputed item;
Custody is a contract whereby the disputing parties, or one of them, entrust a disputed asset to another person, who is obliged to preserve, manage, and return it along with its yield to the one who proves the right to it;
The article clarified that the contract of custody is one of the contracts concerning a disputed item; this is referred to in Islamic jurisprudence as "the deposit of dispute," and custody here does not require being judicial; it can be consensual, and it does not have to be on real estate; it can be on movable property.
Custody can be on real estate or movable property, on a group of assets, or on a real or personal right;
Custody is a consensual contract; it does not require a specific form for its conclusion, and it can be proven by all means of evidence;
Custody is a contract of trust; the custodian is not liable for what is destroyed without negligence or fault on his part.
The disputants are the parties to the custody contract, and they may be two or more persons, and one of them may not be present;
The custodian is the third party in the custody contract, who is obliged to preserve, manage, and return the asset along with its yield to the one who proves the right to it, and the custodian does not have to be an expert unless the custody requires it;
Custody is not limited to judicial disputes; it includes disputes not yet brought to court;
Custody may be for a fee or without a fee;
What is stated in this article differs from agency and deposit;
Agency: a legal act not concerning a disputed item, where the agent represents the principal in legal acts, and is not responsible for preserving or managing the asset unless the agency contract includes that, and does not have the right to retain the asset unless agreed upon or customary.
Deposit: a contract not concerning a disputed item, where the depositary is obliged only to preserve the deposit without managing it, and does not have the right to retain the deposit unless the depositor refuses to pay the fee or expenses.
Custody: a contract concerning a disputed item, where the custodian is obliged to preserve, manage, and return the asset along with its yield to the one who proves the right to it, and has the right to retain the asset until he receives his fee and expenses.
What is stated in this article is an application of the general rules in this system and is not of public order; it is permissible to agree on what contradicts it, such as agreeing that the custodian guarantees what is destroyed without negligence or fault on his part, or increasing his responsibility, as well as agreeing to exempt him from liability for his mistake, or increasing his responsibility; unless it is due to fraud or gross negligence.
If the custodian is an expert, he is obliged to exercise the care of an ordinary person, and if he is not an expert, he is obliged to exercise the care he would take in preserving his own property. What is stated in this article regarding the custodian's obligation to preserve, manage, and return the asset along with its yield is an original obligation resulting from the custody contract, and this obligation differs from the obligation of the agent and the depositary, as each has its own specific rules. The custodian is obliged to execute the custody contract according to the agreed terms, the nature of the custody contract, and customary practice. What is stated in this section is an application of the general rules in this system and is not of public order; it is permissible to agree on what contradicts it, such as agreeing that the custodian guarantees what is destroyed without negligence or fault on his part, or increasing his responsibility, as well as agreeing to exempt him from liability for his mistake, or increasing his responsibility; unless it is due to fraud or gross negligence.
What is stated in this article is of public order; it is not permissible to agree on what contradicts it unless it is due to fraud or gross negligence on the custodian's part.
Related To
Article 522
A receiver may not, in other than safekeeping and management acts, dispose of any property under his receivership without the consent of the concerned parties or the permission of the court; court permission shall not be required in exigent circumstances.