What is the priority regarding liability when a mortgaged slave commits a tort (*jina'ah*)?
General Chapter
Al-Mughni
Book of Pledges (Collateral)
Primary text
When a mortgaged slave inflicts injury upon a person or property, the liability for the tort attaches to the slave's neck, taking precedence over the pledgee's right. This is universally accepted because the right arising from a tort is superior to the owner's right, and ownership is stronger than a pledge, meaning it must take precedence over the pledge right.
Supporting text
The pledgee's right is established through the owner's contract, whereas the tort liability is established involuntarily and predates the contractual right, giving it priority. Additionally, the tort liability is specific to the object (the slave) and is extinguished if the object is lost, while the pledgee's right is not extinguished by the loss of the object and is not exclusive to it, making its attachment less severe.