What is the ruling on pawning an undivided share of a movable item, such as a jewel?
General Chapter
Al-Mughni
Book of Pledges (Collateral)
Primary text
If an undivided share of a movable item, like a jewel, is pawned, the pawnee can only take possession of it with the consent of the co-owner. If the co-owner consents, the pawnee takes possession. If the co-owner refuses but the pawnee and the mortgagor agree that the item remains in the co-owner's possession, this is permissible, and the co-owner acts as the representative for the taking of possession (qabd) on behalf of both parties.
Supporting text
If the co-owner and the pawnee dispute possession, the judge appoints a trustworthy person (adl) to hold the item on behalf of both parties. If the mortgagor delivers the item to the pawnee without the co-owner's consent, and the pawnee takes it, the validity of possession depends on whether the continuation of possession (istidamat al-qabd) is stipulated as a condition. If it is stipulated, that delivery is insufficient. If it is not stipulated, possession is established because the pawn came into the pawnee's hand, even if there was an encroachment regarding the co-owner's share, similar to pawning one garment and delivering it along with another garment belonging to someone else.