What is the ruling if the pawnee finds the pledged property to be rightfully claimed by another party (stolen or usurped)?
General Chapter
Al-Mughni
Book of Pledges (Collateral)
Primary text
If the pawnee takes possession of the pledged item and finds it to be rightfully claimed by another, he is obligated to return it to its owner. The pledge contract is void *ab initio* (from the origin). If the pawnee retains the item knowing it is usurped, until it perishes while in his possession, the liability for its value becomes established against him. The original owner may hold either the pawnee or the usurper liable. If the pawnee is held liable, he has no recourse against anyone else. If the original pledgor (who may be the usurper) is held liable, he may seek recourse. If the item perishes due to the pawnee's negligence (*tafrit*) without his prior knowledge of the usurpation, the ruling is the same as if he knew.
Supporting text
If the pledged item perishes without the pawnee's negligence, there are three views. The first holds that the pawnee is liable because property of another perished while in his ordinary possession. The second holds that the pawnee is not liable because he received it as a trust (*amanah*) without knowledge of the defect, similar to a deposit (*wadi'ah*), and the original owner must seek recourse only from the usurper. The third view is that the owner may hold either liable, but the ultimate liability rests upon the usurper, who must indemnify the pawnee if the pawnee was made to pay due to misrepresentation.