Is the continued possession of the pledged item a condition for the final enforcement (*luzūm*) of the mortgage?
General Chapter
Al-Mughni
Book of Pledges (Collateral)
Primary text
The continued possession of the pledged item is a condition for the enforcement (*luzūm*) of the mortgage contract. If the pledgee intentionally removes the item from his possession through rent, loan for use (*iʿāra*), deposit (*īdāʿ*), or similar means, the enforcement of the mortgage is lifted, but the underlying contract remains, as if possession had never occurred. If the item is returned to the pledgee's possession, the enforcement returns based on the prior contract. Ahmad, according to the narration of Ibn Manṣūr, ruled that if a house is mortgaged and then rented out by the owner, it leaves the mortgage, but when it returns, it becomes a mortgage again. Similarly, if a female slave is pledged and the pledgee asks the owner to send her back temporarily to bake, and the owner sends her, and the pledgee has intercourse with her, the item is removed from the mortgage. If there was no intercourse, there is no issue. Malik and Abu Hanifa affirmed that continued possession is required. This is based on the correct view, supported by the verse: "... [it must be] pledges taken possession of" (Quran 2:283), as this is one of the two states of the mortgage, making possession a condition, similar to the initial taking of possession.
Supporting text
Abu Bakr opined that if the pledgee sends the slave back for baking and does not have intercourse, the item remains a pledge, and when returned, it reverts to being a mortgage. Al-Khaṭṭāb stated that if possession is required initially, it must be required for continuation. Al-Shafi'i holds that continued possession is not a condition because it is a contract where initial possession is a condition but continuation is not, similar to a gift. The counter-argument to the analogy with a gift is that possession in a gift establishes ownership immediately, whereas a mortgage requires possession to secure the right to sell for debt recovery; if the item is not in hand, recovery is impossible.