Is it permissible for a guardian to reclaim mortgaged property belonging to an orphan?
General Chapter
Al-Mughni
Book of Pledges (Collateral)
Primary text
It is permissible for the guardian (Wasi) to reclaim property mortgaged belonging to an orphan, provided he reclaims it for the benefit of the orphan. If he reclaims it for himself, it is not permissible because he does not possess the right to dispose of the orphan's wealth for his own benefit. If he reclaims it in a manner for which he is not entitled to custody, he becomes liable for the guarantee (Daman). If he redeems the mortgage using the orphan's wealth, the property is freed and belongs entirely to the orphan.
Supporting text
If the guardian redeems the mortgage using his own personal wealth and frees the property, the apparent ruling is that he reclaimed it for himself. However, if he states, "I reclaimed it for the orphan," his statement is accepted, and he is liable for the property only if it perishes before this declaration. If he claims he reclaimed it for the orphan only after the property or part of it has perished, his statement is not accepted because a guarantee has already been established against him prima facie. Nevertheless, accepting his statement is preferable because he is a trustee, and he is the most knowledgeable regarding his intention, thus his statement concerning his intention should be accepted, just as it is accepted regarding the claim of redemption.