Is a creditor permitted to take an amount equivalent to his due right from the debtor's property without permission, even if the debtor acknowledges the debt?
General Chapter
Al-Mughni
Book of Claims and Evidences
Primary text
A creditor is not permitted to take any amount from the debtor's property without the debtor's permission, even if the debtor acknowledges the debt and is able to pay. This is established without scholarly disagreement, based on the Prophetic tradition: 'Render the trust to the one who entrusted it to you, and do not betray the one who betrayed you,' narrated by Al-Tirmidhi. If the creditor takes anything without permission, even if it equals the amount owed, he must return it because it is impermissible to establish ownership of the debtor's specific property over him without his choice, unless necessitated by dire need. This applies even if the taken item is of the same kind as the debt, because the debtor may have a specific interest in that particular item.
Supporting text
If the taken item is destroyed or becomes debt in his liability, and it is of the same kind as the debt owed, offset (taqasu) is permissible according to the established principle of the Madhhab and the more famous opinion of Al-Shafi'i. However, if the debtor legally prevents payment due to a valid reason, such as postponement or insolvency, taking anything remains impermissible. If taken, it must be returned if extant, or its replacement value if destroyed. Offset is not achieved here because the existing debt is not presently due for collection, unlike the previous scenario.