Is a condition valid that the pledgee (Mortgagee) shall sell the pledged item upon debt maturity?
General Chapter
Al-Mughni
Book of Pledges (Collateral)
Primary text
The stipulation that the pledgee shall sell the collateral upon debt maturity is valid. Abu Hanifa and Malik hold this view. The reasoning is that what is permissible to stipulate for a non-pledgee to do, is permissible to stipulate for the pledgee, such as selling another asset. Furthermore, if it is permissible to stipulate for retention, it is permissible to stipulate for selling, similar to the *Adil* (trustee). The difference in the intent of the parties does not cause harm, as the pledgee's goal is legitimate: securing the debt payment and executing the sale upon due date. The pledgor's consent, knowing the pledgee's intent, implies permission.
Supporting text
Al-Shafi'i holds that this stipulation is invalid because it involves authorizing an agent in a matter where the two parties' objectives conflict. The pledgor desires patience regarding the sale and maximizing the price, while the pledgee desires immediate settlement of the debt and finalizing the sale.