Is the permission (Idhn) of the mortgagor required for the mortgagee to take actual possession of the item already in his custody?

General Chapter

Al-Mughni

Book of Pledges (Collateral)

Book 13 · Issue 4 · Bab 1

Open in Qurani

Primary text

There are two potential rulings. The first view states that permission from the mortgagor is required because taking possession binds a non-binding contract, which cannot be effected without permission, similar to when the item is in the mortgagor's possession, where his affirmation is insufficient, or when a usurper acknowledges possessing a wrongfully seized item that could be taken back.

Supporting text

The second view states that permission is not required because the mortgagee's affirmation of the item being in his possession is equivalent to his permission to take possession.