What is the ruling if the mortgagor pardons the established monetary compensation (Arsh/Diyyah)?
General Chapter
Al-Mughni
Book of Pledges (Collateral)
Primary text
If the mortgagor pardons the financial compensation, Al-Qadi holds that the right of the mortgagor is forfeited, but the right of the mortgagee remains, and the value must be taken as a pledge. Once the initial pledge is released, the Arsh returns to the perpetrator (the slave's master, assuming the master is the one paying), similar to if he had confessed that the pledge was usurped or damaged.
Supporting text
Abu Al-Khattab holds that the pardon is absolutely valid, and the perpetrator's value must be taken as a pledge because the mortgagor has dropped a debt from his debtor, which is valid like other debts. He argues that the compensation cannot remain a pledge while the mortgagor has no right to it, thus his value is due for forfeiting the mortgagee's right, similar to the replacement value of the pledge being destroyed. Al-Shafi'i asserts that the pardon is entirely invalid because the mortgagee's right is attached to it, making the mortgagor's pardon ineffective, just as pardoning the thief of the pledge itself is invalid. This latter view is considered more sound in jurisprudence.