Does the seller have the option to rescind the sale if one item perishes after possession of the other item has been taken when the mortgage was conditional upon a sale?
General Chapter
Al-Mughni
Book of Pledges (Collateral)
Primary text
If one of the two items perishes after the other item has been possessed, and the mortgage was stipulated in a sale, the seller retains the option to rescind the sale due to the inability to fully fulfill the mortgage condition. However, if the seller agrees to proceed, they cannot demand compensation for the perished item because the mortgage did not fully bind itself to that item, and the possessed item stands as a mortgage for the entire price.
Supporting text
If the perishing occurs after the possession of the other item has been taken, the mortgage is confirmed for the possessed item. If the perishing occurred before possession of the other item, the mortgagor chooses between delivering the remaining item or abandoning it. Should the mortgagor refrain from delivering the remaining item, the seller acquires the right of option, similar to the case where the other item did not perish.