Is the marriage contract of a mortgaged female slave valid?
General Chapter
Al-Mughni
Book of Pledges (Collateral)
Primary text
The marriage contract of a mortgaged female slave is invalid. This position is chosen by Abu Al-Khattab and is the view of Malik and Al-Shafi'i. The rationale is that marriage diminishes the price of the collateral and compromises some of its benefits, as the mortgagor does not possess the right to dispose of it in such a way without the pledgee's consent, similar to a lease contract. The marriage impairs the object of the pledge by potentially preventing its sale or reducing its price, thereby impeding the full recovery of the debt from its price.
Supporting text
Al-Qadi and a group of our associates hold that the marriage is valid, allowing the pledgee to prevent the husband from consummation while the dowry remains collateral alongside the slave. This is the position of Abu Hanifa, based on the premise that the object of the marriage contract differs from the object of the pledge contract, evidenced by the validity of mortgaging an already married female slave, and because the pledge does not remove ownership, thus not preventing marriage, unlike a lease.