What happens if one item perishes after the mortgagee has taken possession of the other item?
General Chapter
Al-Mughni
Book of Pledges (Collateral)
Primary text
If one item perishes after the mortgagee has taken possession of the other, the mortgage is established for the possessed item. If the mortgage was stipulated within a sale agreement, the seller retains the option to rescind the sale due to the impossibility of fulfilling the mortgage requirement completely. If the seller accepts this situation, they cannot demand compensation for the perished item because the mortgage never fully took effect on it, and the possessed item serves as a mortgage for the entire price.
Supporting text
If the perishing occurred after taking possession of the other item, the mortgage is established for the possessed item. If the perishing occurred before taking possession of the other item, the mortgagor has the choice between delivering the remaining item or foregoing delivery. If the mortgagor refuses to deliver the remaining item, the seller gains the option to rescind the sale, just as if the other item had not perished.