Whose opinion prevails if the parties disagree on the destination for necessary relocation of mortgaged livestock?

General Chapter

Al-Mughni

Book of Pledges (Collateral)

Book 13 · Issue 4 · Bab 1

Open in Qurani

Primary text

If both parties agree to move the livestock but disagree on the destination, the opinion of the one proposing the most suitable location is prioritized. If both proposed destinations are deemed equally suitable, the opinion of the mortgagee prevails. The basis for prioritizing the mortgagee is that custody belongs to the mortgagee, making their preference primary, similar to a situation where they both reside in the same city and neither can move the animal out without consent, even to a location of equal or better pasture, since moving it is unnecessary when remaining is possible.

Supporting text

The position of Shafi'i holds that the mortgagor's opinion is prioritized, even if the proposed destination is not the best, because the mortgagor retains greater ownership rights, unless the destination is custody with an agreed-upon arbiter.