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Making the Servant Pay for Damages Caused by Negligence

Answered by Shaykh Faraz Rabbani

Question: Is it permissible to ask one’s domestic servant to pay for damage caused by negligence during ironing if this happens repeatedly?

Answer: In the name of Allah, Most Merciful,

Walaikum assalam,

The default is that an employee is entrusted (amin), and not liable for any damages that occur in the normal course of their work, unless it is established that this is from undue negligence, such as when acting against the clear instructions of the employer, or by such actions or errors that are considered inexcusable. [Ibn Abidin, Radd al-Muhtar; Majalla (607-611)]

Caution is needed in such matters, because the default assumption that the error was a normal mistake that happens during the course of the work is akin to our operational certainty. This cannot be left unless we certainly establish otherwise through admission of the employee or undeniable evidence.

It is also from the proper manners and excellence of dealings to overlook even undue negligence that is not from ill-intent or repeated heedlessness. Such overlooking is rewarded by Allah, for He is in the aide of His servant as long as His servant is in the aide of his brethren, as the Beloved of Allah (peace and blessings be upon him) told us.

The jurisprudence (fiqh) of this is detailed in the items below from the Ottoman Hanafi commercial law code, Majallat al-Ahkam al-Adliyya:

Section III: Loss Caused by Employees

If the thing entrusted to an employee to work upon is destroyed by the wrongful act or negligence of such person, the latter must make good the loss. A wrongful act of an employee consists of any act or conduct contrary to the express or implied order of his employer.

Examples: A farmer instructs his shepherd, who is his private employee, to pasture his flock in a certain place and no other. The shepherd takes the flock to another place. He has committed a wrongful act, and if the animals are destroyed in that place, the shepherd must make good the loss. An individual hands cloth to a tailor, instructing him to cut it and make him a long coat therefrom, if the cloth is sufficient. The tailor tells him that it is sufficient. If it turns out after the cloth is cut up that it is not sufficient for the purpose, the individual can claim to have the loss made good by the tailor.

Negligence of the employee consists of any fault of his of which he is guilty, without excuse in the preservation of the thing entrusted to him on account of his employment. Example: An animal strays from the flock and is lost purely on account of the neglect of the shepherd to come and catch such animal. The shepherd must make good the loss. He is not liable, however, if his failure to go after the animal arose out of the probability that, in doing so, he would lose the other animals.

A private employee is a trustee. Consequently, he is under no obligation to make good any loss arising out of the destruction of property in his possession not caused by any act of his. Similarly, if property is destroyed by his own act, without his fault, he is not liable to make good the loss.

And Allah alone gives success.

Wassalam,
Faraz Rabbani