Is sexual intercourse by the pledgor (Rahin) with a mortgaged female slave permissible?
General Chapter
Al-Mughni
Book of Pledges (Collateral)
Primary text
Sexual intercourse by the pledgor with the mortgaged female slave is impermissible according to the majority of scholars. The consensus among scholars, as reported by Ibn al-Mundhir, is that the pledgee (Murtahin) has the right to prevent the pledgor from such an act. The justification is that this prohibition applies universally to all women whose intercourse is forbidden, such as those in the waiting period ('Iddah), those undergoing purification (Mustabra'ah), or unrelated women. Furthermore, because pregnancy is unpredictable and cannot be entirely excluded, intercourse is forbidden entirely, analogous to how wine is forbidden absolutely due to the potential for intoxication.
Supporting text
Some Shafi'i scholars permit intercourse with an elderly woman who is past childbearing age (A'isah) or a young girl, reasoning that the prohibition stems from the fear of pregnancy leading to the slave leaving the collateral or being damaged, which is absent in these cases. This view is opposed by the mainstream scholars.