What is the ruling on expenses incurred by the pledgee (mortgagee) when the pledgor (mortgagor) defaults on payment?
General Chapter
Al-Mughni
Book of Pledges (Collateral)
Primary text
If the pledgee incurs expenses that are legally incumbent upon the pledgor due to the pledgor's default, the ruler shall compel the pledgor to pay. If the pledgor refuses, the ruler shall hire someone using the pledgor's funds. If the pledgor has no funds, the hiring is done from the pledged property itself. If the pledgee spends voluntarily without requirement, they shall not be reimbursed. If the pledgee spends with the permission of the pledgor, or with the permission of the ruler when the pledgor's permission cannot be obtained, considering it an act of seeking reward (muhtasiban), the pledgee is entitled to reimbursement. If obtaining permission from either the pledgor or the ruler is impossible, the pledgee must bear witness (testify) that the expense was incurred, to ensure reimbursement. Reimbursement is due in this case. If the expense was incurred without the ruler's permission when possible, or without testimony when the ruler's permission was unattainable, there are two recorded opinions regarding reimbursement.
Supporting text
If the pledgor authorized the expenditure specifically to make the pledged item secure for both the original debt and the new expense, the arrangement is invalid, and the pledged item does not secure the new expense. If the pledgor claims the expenditure was gratuitous, but the pledgee claims it was done seeking reward (with the intent to be reimbursed), the pledgee's claim prevails because the intent is known only to them, and others cannot observe it. The pledgee must then take an oath, as the pledgor's claim remains a possibility.