Is the freeing (Itq) of mortgaged property by the pledgor valid?
General Chapter
Al-Mughni
Book of Pledges (Collateral)
Primary text
The pledgor does not have the right to free the mortgaged property because doing so nullifies the pledgee's right to the security. If the pledgor frees the property, the manumission takes effect whether the pledgor is solvent (musir) or insolvent (mu'sir). This is the explicit position of Ahmad, and it is held by Shurayk, Hasan ibn Salih, the companions of Ra'y, and one opinion of Shafi'i.
Supporting text
Abu Hanifa holds that if the manumitter is insolvent, the slave must work to pay his value (yastas'i al-'abd fi qimatihi), which then benefits the pledgee. Another narration from Ahmad, supported by Malik and a second opinion of Shafi'i, states that the manumission of an insolvent person is not effective because it nullifies the pledgee's right to the security, both the physical item and its substitute, thereby harming the pledgee. A third opinion, held by 'Ata, Batti, Abu Thawr, and a third view of Shafi'i, is that the manumission of the pledgor is never valid, whether solvent or insolvent, because it invalidates the established security right, similar to a sale. The counter-argument supporting validity states that manumission is an act by an owner with full legal capacity, making it effective, similar to a lessee freeing property. Furthermore, a pledge is property detained to satisfy a right, allowing the owner's manumission to take effect therein, like property sold while still in the seller's possession. Manumission differs from sale because it is based on overwhelming intent and continuation of effect, and it can take effect on property belonging to others, on property that has fled (abeq), on the unknown, on property that cannot be handed over, and it can be suspended upon conditions, unlike sale.