Is it valid to mortgage a borrowed item without specifying the secured amount, its nature, or whether the debt is immediate or deferred?
General Chapter
Al-Mughni
Book of Pledges (Collateral)
Primary text
There is a difference of opinion when the authorization to mortgage is unrestricted concerning the amount. One view holds that the mortgage is valid, allowing the borrower to mortgage it for whatever amount they wish. This view is supported by the opinion of the People of Ray and is one position attributed to Al-Shafi'i. The underlying justification is that the transaction is fundamentally a loan (A'riyah) for the borrower's use, and thus the specific conditions required for a guarantee (Dhaman) are not necessary.
Supporting text
The opposing view holds that such a mortgage is invalid unless the amount, nature, immediacy, or deferment of the secured debt is explicitly detailed. This is because the arrangement is treated as a guarantee concerning the benefit derived from the item, and guaranteeing an unknown entity is invalid. Furthermore, since the benefit of the item belongs to the owner, the authorization for the pledge effectively functions as a guarantee in the borrower's responsibility.