What is the effect of the mortgagor's acknowledgment of prior sexual intercourse (watu') before or at the time of concluding the mortgage contract?
General Chapter
Al-Mughni
Book of Pledges (Collateral)
Primary text
If the mortgagor (Rahin) acknowledges sexual intercourse either at the time of the contract or before its finalization, the contract remains valid. This is because the presumption is the absence of pregnancy. If the female subject of the mortgage (the Marthaana) is later found not to be pregnant, or pregnant with a child that would not legally belong to the mortgagor, the mortgage remains valid. This is also true if the child would legally belong to him but she does not become an 'Umm Walad' (a bondswoman whose child is acknowledged by the master), such as if he had intercourse with her while she was his wife, then acquired ownership of her and mortgaged her. This ruling is held by the majority of the companions of Al-Shafi'i.
Supporting text
A minority among Al-Shafi'i's companions hold that the mortgagee has the option (khiyar) to invalidate the mortgage if pregnancy results, because the acknowledgment of intercourse itself does not grant the option, and consent to the act is not consent to the resulting pregnancy, unlike in cases of injury or illness.