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The Islamic Personality by Sheikh Taqīuddīn An-Nabahānī

32. Mortgage/ Pledging Security

The pledge in the language means certainity and persistence, and some also referred it to mean confinement. Allah (swt) said

“Each person is a pledge over what he acquired (kasaba)” [TMQ 52:21]

And:

“Each soul is a pledge over what he acquired (kasaba)” [TMQ 74:38]

i.e. restricted. The pledge in Shar’a is the property which is given as security for the debt so as to pay from its price if the one upon whom it is due finds it impossible to pay it. It is permitted and among the transactions which the Shar’a permitted. Its evidence is the Book and Sunnah. Allah (swt) said:

“And if you are travelling and cannot find a writer, then let there be a pledge taken (mortgaging)” [TMQ 2:283].

Al-Bukhari narrated from Aisha, the mother of the believers,

“That the Prophet (saw) bought food from a Jew for a (deferred) period and pledged an iron coat of armour to him.”

And At-Tirmidhi narrated from ibn Abbas who said:

“The Prophet (saw) died and his coat of armour was pledged for twenty (sa’a) of food which he took for his family.”

And Al-Bukhari narrated from ibn Abbas (ra) who said:

“The Prophet (saw) pledged a coat of armour of his in Madinah to a Jew and he took barley from him for his family.”

The pledge is permitted in travel and when resident because the words “and if you are travelling” is explaining a situational reality and is not a restriction by the evidence

“That the Prophet (saw) bought food from a Jew to a (deferred) period and pledged him an iron coat of armour”

While the Prophet was in Madinah and not travelling. The pledge is not permitted except when delivered during the same contract “a (maqbudha) pledge”. The description of the possession in the pledge is that he places his hand over it, so that which is moveable is transported to him. As for what is immovable like houses and land, his hand is upon it i.e. its possession is by its pledger withdrawing between it and the pledgee without any obstacle in front of him. It is permitted to delegate in taking possession of the pledge so the delegate’s taking possession stands in his place in his taking possession and the rest of its rules. The pledge is permitted in all that is allowed to sell. Everything permitted to sell is permitted to pledge because the objective of the pledge is to secure the debt to reach its payment from the pledge’s price if it becomes impossible to pay it from the capability of the pledger. The pledge is not permitted in that which is not permitted to sell like alcohol, idols, land on trust, the pledged thing and similar things which are not permitted to be sold.

Reference: The Islamic Personality - Sheikh Taqīuddīn An-Nabahānī

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