32. 抵押/质押担保
32. Mortgage/ Pledging Security
"誓言"在语言上的含义是确定和坚持,也有人认为它指的是约束、束缚。安拉(SWT)说:
The pledge in the language means certainity and persistence, and some also referred it to mean confinement. Allah (swt) said
“每个人都为其所获(kasaba)而被抵押” [TMQ 52:21]
“Each person is a pledge over what he acquired (kasaba)” [TMQ 52:21]
和:
And:
“每个灵魂都为其所得(kasaba)而被抵押” [TMQ 74:38]
“Each soul is a pledge over what he acquired (kasaba)” [TMQ 74:38]
即受限制。伊斯兰教法中的抵押(rahn)是指将某项财产作为债务的担保,若债务人无力偿还,则可从该财产的价款中支付。这是允许的交易之一,伊斯兰教法准许其存在。其依据是《古兰经》和圣训。安拉(SWT)说:
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:
“如果你们在旅途中而找不到书记人,那么可以接受抵押品作为担保”[TMQ 2:283]。
“And if you are travelling and cannot find a writer, then let there be a pledge taken (mortgaging)” [TMQ 2:283].
布哈里传述,来自信士们的母亲阿伊莎
Al-Bukhari narrated from Aisha, the mother of the believers,
“先知(愿主福安之)曾向一位犹太人赊购食物,以一件铁甲作为抵押交给他。”
“That the Prophet (saw) bought food from a Jew for a (deferred) period and pledged an iron coat of armour to him.”
据伊本·阿拔斯(愿真主喜悦他们二人)所述,提尔米兹(At-Tirmidhi)传述说:
And At-Tirmidhi narrated from ibn Abbas who said:
先知ﷺ去世时,他的盔甲被抵押,换取了他为家人所取的二十沙阿(sa’a)食物。
“The Prophet (saw) died and his coat of armour was pledged for twenty (sa’a) of food which he took for his family.”
而布哈里根据伊本·阿拔斯(ra)的传述,他说:
And Al-Bukhari narrated from ibn Abbas (ra) who said:
先知ﷺ在麦地那将他的一件铠甲典当给了一名犹太人,并从那人处取了大麦供养家人。
“The Prophet (saw) pledged a coat of armour of his in Madinah to a Jew and he took barley from him for his family.”
誓约无论在旅途中还是在定居时都是被允许的,因为经文中的"如果你们在旅途中"这句话说明的是一种实际情况,而不是依据经据所作的限制。
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
先知ﷺ曾向一位犹太人赊购食物,约定延期支付,并以一件铁甲作为抵押。
“That the Prophet (saw) bought food from a Jew to a (deferred) period and pledged him an iron coat of armour”
当先知在麦地那而未外出旅行时……抵押不被允许,除非是在同一契约中交付的"抵押物"(maqbudha)。抵押物的占有方式是:他将手放在其上,使可移动之物被转移到他手中。至于房屋和土地等不动产,其占有方式是其抵押人在其与抵押权人之间退开,且其面前没有任何阻碍,即其手置于其上。允许委托他人接管抵押物,代理人的接管即替代其本人的接管,其余规定亦同。凡可以出售之物,皆可用于抵押。凡可以出售之物都可以抵押,因为抵押的目的在于担保债务,以便在抵押人无力偿还时,能从抵押物的价款中获得清偿。凡不允许出售之物,如酒、偶像、信托之地、被抵押之物及类似不得出售之物,皆不允许用于抵押。
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.