What are the counter-arguments against permitting a creditor to take property without the debtor's consent?
General Chapter
Al-Mughni
Book of Claims and Evidences
Primary text
It is impermissible because if the creditor takes something of a different kind than the debt, it constitutes an exchange without mutual consent. If he takes something of the same kind, he does not have the right to specify which asset fulfills the debt without the owner's agreement, as specification lies with the owner. Furthermore, anything that a person cannot legally possess when they have no debt cannot be taken when they do have a debt, analogous to a situation where the debtor offers payment.
Supporting text
Regarding the Hadith of Hind, Ahmad excused it by stating that her right to maintenance is constantly incumbent upon him, distinguishing it by the hardship of litigating every instance where maintenance is due. Abu Bakr distinguished them by stating that the existence of the marriage bond acts as proof, making the right known. Other distinctions include the wife's customary latitude in utilizing marital property, which permits taking justly, unlike a stranger. Additionally, maintenance is for the preservation of life, a necessity that cannot be postponed, unlike a general debt. Consequently, if maintenance payments become past due, she cannot seize property for them retroactively, nor for any other debt she may have against him.