Is the leasing or lending of the pledge permissible if agreed upon by both parties?
General Chapter
Al-Mughni
Book of Pledges (Collateral)
Primary text
If the mortgagor and pledgee agree on leasing or lending the pledge, it is permissible. This is supported by the reasoning that the purpose of the pledge is securing the debt, which does not contradict utilizing it or leasing it. Furthermore, suspending its benefit results in the waste of wealth, which the Prophet (peace be upon him) forbade. Moreover, an asset to which a security right is attached does not prevent its leasing, analogous to a slave guaranteed by his master with permission.
Supporting text
Abu Al-Khattab permitted the judge to lease shared (musha') property for both parties. Abu Bakr stated in Al-Khilaf that the usufruct of the pledge is suspended absolutely, and neither party may lease it. This is the view of Ath-Thawri and the Companions of opinion, who argue that if the mortgagor leases the pledge with the pledgee's permission, it is a release from the pledge because the pledge contract requires its continuous detention by the pledgee or their representative, and a contract necessitating the removal of detention dissolves the pledge.