Is the legal seizure (Qabd) valid if the pledgor (Rahin) and the pledgee (Murtahin) are both inside the pledged house, and then the pledgor exits?
General Chapter
Al-Mughni
Book of Pledges (Collateral)
Primary text
The seizure of a house given as collateral is valid even if both the pledgor and the pledgee were inside the house at the time of the initial agreement, and the pledgor subsequently exited, leaving the pledgee inside. This opinion is held by Al-Shafi'i. The validity is established because the separation (Takhliyah) is achieved by the pledgee's ability to take control of the property without impediment, which is fulfilled by the pledgor's exit. The pledgee's exit from the property does not invalidate the existing seizure, nor does entry into another's property establish a new seizure for the pledgee. The initial exit by the pledgor confirms his relinquishment, making a renewed act of separation unnecessary.
Supporting text
Abu Hanifa holds that the seizure is invalid in this scenario. The seizure is deemed invalid because the pledgee did not have physical possession (Yad) of the house prior to the pledgor's exit, and thus the requirement for establishing effective separation (Takhliyah) was not met until the pledgee is left alone inside the property after the pledgor has departed.