Is a transaction made by the mortgagor concerning the mortgaged property, other than manumission, valid without the pledgee's permission?

General Chapter

Al-Mughni

Book of Pledges (Collateral)

Book 13 · Issue 1 · Bab 1

Open in Qurani

Primary text

Any transaction by the mortgagor on the mortgaged property, such as selling, leasing, gifting, endowing, or re-mortgaging, is void. This is because such an act invalidates the pledgee's right in the security without being based on necessity or transmission of effect, thus it is not valid without the pledgee's permission, similar to the invalidity of revoking the pledge. If the pledgee permits the transaction, it becomes valid, but the pledge itself is voided because the pledgee assented to an act contradictory to their right, causing its nullification, akin to manumission.

Supporting text

If the pledgee permits the transaction, the pledge is voided because the pledgee assented to an act that nullifies their right, similar to manumission (manumission of the mortgaged slave). The text confirms that if the pledgee permits the transaction, the pledge is voided.