Does the contract of mortgage become void if the mortgaged house collapses before the mortgagee takes possession?
General Chapter
Al-Mughni
Book of Pledges (Collateral)
Primary text
The contract of mortgage does not become void if the mortgaged house collapses before the mortgagee takes possession because its total value has not been lost; its plot of land ('arsah) and debris ('unqud) remain. Consequently, the mortgagee has the option (al-khiyar) if the mortgage was stipulated in a sale, due to the defect and decrease in the mortgage's value. The difference between this and the lease contract is that the lease is a contract concerning the utility of habitation, which has become impossible and ceased to exist, thus invalidating the contract due to the absence of the subject matter. Mortgage, however, is a contract of security related to the physical assets possessing value, which remain.