What is the consequence if the mortgagor acknowledges sexual intercourse after the mortgage contract has become legally binding, resulting in the bondswoman becoming an 'Umm Walad'?
General Chapter
Al-Mughni
Book of Pledges (Collateral)
Primary text
If the bondswoman is found to be pregnant with a child that establishes her status as an 'Umm Walad', the mortgage contract is nullified, and the mortgagee has no option to uphold it, even if the term was stipulated in a sale, because he entered the transaction knowing she might not remain a pure mortgage subject. When she is released from the mortgage due to this known cause, he forfeits the right to an option, similar to a sick person dying or an assailant being subjected to retribution. This is the sounder opinion based on the principle that his permission for intercourse implies permission for its eventual consequence, and his satisfaction with the act implies satisfaction with its outcome.
Supporting text
Some scholars suggest the mortgagee retains the option, as the sexual intercourse itself does not establish the option, meaning his consent to the act is not consent to the resulting pregnancy, distinguishing it from injury or illness.