What is the ruling on the pledgee benefiting from mortgaged livestock requiring expense, with or without the pledgor's permission?

General Chapter

Al-Mughni

Book of Pledges (Collateral)

Book 13 · Issue 1 · Bab 1

Open in Qurani

Primary text

If the pledgor grants permission for the pledgee to incur expenses and benefit from the mortgaged item, it is permissible as it constitutes a form of exchange (mu'awada). If there is no permission, the ruling differs based on the type of livestock. For livestock meant for riding (markub) or milking (mahlub), the pledgee may incur expenses, ride, or milk them to the extent of those expenses, acting justly. This view is held by Ahmad in the narration of Muhammad bin al-Hakam and Ahmad bin al-Qasim, chosen by Al-Kharqi, and is the position of Ishaq. This applies whether the pledgor is absent, refuses to spend, or is capable but the pledgee spends instead, seeking to recover the expenditure. The evidence is the Hadith narrated by Bukhari, Abu Dawud, and Tirmidhi from Abu Hurairah, stating that the riding animal covered by a pledge may be ridden with its upkeep expense covered, and the milk of the livestock covered by a pledge may be drunk with its upkeep expense covered, and the one riding or drinking must cover the expense. This establishes the benefit as compensation for the expense, which is the right of the pledgee due to his possession and authority.

Supporting text

A dissenting view, narrated from Ahmad and held by Abu Hanifa, Malik, and Shafi'i, states that the pledgee is not reimbursed for his expenses, which are considered voluntary (mutatawwi'), and he cannot benefit from the pledge at all. The evidence cited is the Hadith, "The pledge belongs to its pledgor; its gain is his, and its loss is his." Furthermore, it is argued that he is benefiting from the property of another without permission, similar to any other property.