Is the hypothecation of an undivided share (Mushā') valid?
General Chapter
Al-Mughni
Book of Pledges (Collateral)
Primary text
The hypothecation of an undivided share is valid because it is an object whose sale is permissible, and it is capable of fulfilling the purpose of the pledge, which is securing the debt through its price upon failure of recovery from the debtor. This view is supported by those who permit the hypothecation of anything salable, including Ibn Abi Layla, Malik, Al-Shafi'i, and others.
Supporting text
The proponents of the opposing view state that the hypothecation of an undivided share is invalid unless it is mortgaged to the co-owner, or if both co-owners mortgage it to one man, or if one man mortgages his house to two men who take possession jointly. They argue that the primary intent of the pledge is permanent retention, which is impossible for an undivided share because the co-owner can seize it during his turn. They assert that continuous possession is a condition, and since possession here is destined to cease due to a factor concurrent with the contract, the pledge is void, similar to a wrongfully usurped item (Maghsūb).