What is the ruling if the borrower, having been authorized to mortgage the item for a specific sum, mortgages it for a different condition?
General Chapter
Al-Mughni
Book of Pledges (Collateral)
Primary text
If the borrower stipulates a condition regarding the mortgage terms (amount, type, or duration) and subsequently violates that stipulation by mortgaging the item under different terms, the mortgage transaction is invalid. This is because the borrower was not authorized for that specific mortgage, making the situation analogous to one where no authorization was given for the original mortgage. Scholars unanimously agree on this point.
Supporting text
If the borrower is authorized to mortgage the item for a specific sum (e.g., one hundred) and mortgages it for a lesser sum (e.g., fifty), the transaction is valid because permission granted for the greater inherently includes permission for the lesser. However, if the borrower mortgages it for a greater sum (e.g., one hundred and fifty), two opinions exist: one holds that the entire mortgage is void because the borrower violated the explicitly stated terms. The second, preferred view, is that the mortgage is valid up to the amount explicitly authorized (one hundred), and void concerning the excess, following the principle of partial validation in a transaction containing both valid and invalid elements.