Muwatta Malik (Yahya)

It is narrated from Sa'id bin al-Musayyib that the Messenger of Allah, peace and blessings be upon him, said: "A pledge (rahn) shall not be withheld."

Imam Malik, may Allah have mercy on him, said that its explanation is that a person mortgages goods worth one hundred rupees for seventy-five rupees, and says that if I do not redeem it within such a period, then this property will become yours. This is not correct. Even if this happens, when the mortgagor pays the mortgage money, the mortgagee will have to return the property, and the condition will become void.

Imam Malik, may Allah have mercy on him, said that if a person mortgages a garden for a fixed period, then the fruits that had appeared in the garden before the mortgage will not be included in the mortgage, except in the case where the mortgagee has stipulated it, then those fruits will also be included in the mortgage. And if someone mortgages a pregnant slave woman, or if she becomes pregnant after being mortgaged, then her child will also be included in the mortgage with her. This is the difference between fruits and children, because fruits are not included even in a sale. The Messenger of Allah, peace and blessings be upon him, said: "Whoever sells date-palm trees, the fruits will belong to the seller, except when the buyer stipulates otherwise."

Imam Malik, may Allah have mercy on him, said that in our view there is no difference of opinion in this: if someone sells a slave woman or an animal and she is pregnant, then the child will belong to the buyer, whether the buyer stipulates it or not. So, a date-palm tree is not like an animal, nor are the fruits like the offspring of a date-palm.

Imam Malik, may Allah have mercy on him, said that this is also evidence that a person can mortgage the fruits of trees without the trees themselves, but it is not possible to mortgage the unborn child without its mother, whether it is a human or an animal.

Imam Malik, may Allah have mercy on him, said: According to us, there is no difference of opinion in this matter that if the mortgaged item is such that its destruction is known, like land, house, and animals, then in this case, the destruction of the mortgaged item will not reduce the right of the mortgagee at all; rather, the loss will be upon the mortgagor. And if the mortgaged item is such that its destruction is known only by the statement of the mortgagee (like gold, silver, etc.), then the mortgagee will be liable for its value (in the case where he does not have witnesses for its destruction). Now, if the mortgagor and the mortgagee differ regarding the amount of the mortgage, the mortgagee will be told: You should swear an oath and describe the characteristics of the mortgaged item and the amount of the mortgage. When he describes it, knowledgeable people will estimate the value of the item according to the characteristics described by the mortgagee. If the value is more than the amount of the mortgage, then the mortgagor will recover from the mortgagee the excess amount of the mortgage. If the value is less than the amount of the mortgage, then the mortgagor will be made to swear an oath; if he swears, then the amount by which the mortgagee has stated the mortgage to be more than the value will be dropped from his liability, and if he refuses to swear, then he will pay that amount to the mortgagee. If the mortgagee says: I do not know the value of the mortgaged item, then the mortgagor will be made to swear an oath regarding the characteristics of the mortgaged item, and the decision will be made according to his statement, provided that he does not state anything contrary to reality.

Imam Malik, may Allah have mercy on him, said: This is when the mortgaged item is with the mortgagee and he has not placed it with someone else (otherwise, there will be no liability upon the mortgagee, even if he cannot produce witnesses).

Imam Malik, may Allah have mercy on him, said that if a thing is mortgaged with two people, and one of the mortgagees demands his debt and wants to sell the mortgaged item, while the other mortgagee gives the mortgagor respite, then if the mortgaged item is such that selling half of it does not harm the other mortgagee, half of it will be sold and the debt of one mortgagee will be paid. But if there is harm, then the entire mortgaged item will be sold and half will be given to the mortgagee who demands it, and if the mortgagee who gave respite willingly wants, he may hand over half of the price to the mortgagor. If not, he should swear: "I gave respite so that the mortgaged item remains with me as it is," then his right should be paid at that time.

Imam Malik, may Allah have mercy on him, said that if a slave is mortgaged, the property of the slave will be taken by the mortgagor, unless the mortgagee stipulates that his property also remains mortgaged with him.

Imam Malik, may Allah have mercy on him, said that if a person hires an animal with the agreement that he will go up to a certain place, and then he goes beyond that, the owner of the animal has the option: if he wishes, he may take the fare for the extra distance traveled according to the customary rate, or, if not, he may take from the renter the value of his animal on that day and at the place where it was agreed to go, and also take the fare that was previously agreed upon. If the fare was only for going, and if it was for going and returning, then he should take half of the agreed fare, because half the fare was for going and half for returning, and at the time the renter exceeded the agreement, only half the fare was due upon him. If the renter hired the animal for a round trip, and when he reached the destination the animal died, then there will be no compensation upon the renter, and the owner will receive half the fare. Similarly, if the owner of the capital forbids the agent (mudharib) from buying certain goods, and the agent buys them anyway thinking that he will guarantee it and take all the profit or loss, then the owner of the capital has the option: if he wishes, he may keep the partnership in the goods, or if he wishes, he may take back his principal. Likewise, in the case of entrusted goods (bida’ah), if the owner says to buy certain goods, and the person buys something else, then the owner has the option: if he wishes, he may consider that property as his own, or he may take back his principal.

Imam Malik, may Allah have mercy on him, said that if a person pledged something as collateral, and it was destroyed while with the mortgagee, but there is no disagreement between the pledger and the mortgagee regarding the amount of the pledged money, however, there is a disagreement about the value of the pledged item. The pledger says: Its value is twenty dinars. And the mortgagee says: Its value was ten dinars and the pledge is twenty dinars. The mortgagee will be asked to describe the characteristics of the pledged item, and when he describes it, he will be made to swear an oath, and then people of insight will be asked about the value of such an item. If its value is more than the pledged money, the mortgagee will be told to give the excess amount to the pledger. If the value is less, the mortgagee will take the difference from the pledger. If it is equal, then the matter is settled; neither party owes anything to the other.

Imam Malik, may Allah have mercy on him, said that if the pledged item is present, but the pledger states the pledged money as ten dinars and the mortgagee as twenty dinars, then the mortgagee will take an oath. If the value of the pledged item is twenty dinars, he will take that item in exchange for his debt. However, if the pledger wants to take his item by paying twenty dinars, he may do so. If the value of the pledged item is less than twenty dinars, then the mortgagee will take an oath, and then the pledger will have the option to either pay twenty dinars and take his item, or he himself will take an oath that he pledged it for such an amount. If he takes an oath, then the amount by which the mortgagee has stated the debt to be more than the value of the pledged item will be dropped from his liability; otherwise, he will have to pay.

Imam Malik, may Allah have mercy on him, said that if the pledged item is destroyed, and now there is a disagreement regarding the amount of the pledged money and the value of the pledged item, the mortgagee says: The pledged money was twenty dinars and the value of the pledged item was ten dinars, and the pledger says: The pledged money was ten dinars and the value of the pledged item was twenty dinars, then the mortgagee will be asked to describe the characteristics of the pledged item, and when he describes it, he will be made to swear an oath, and then people of insight will be asked to estimate its value. If the value is more than twenty dinars (for example, thirty dinars), then after the mortgagee swears an oath, the excess amount (for example, ten dinars) will be given to the pledger. If the value is less than twenty (for example, fifteen dinars), then after the mortgagee swears an oath on the pledged money, the amount of the value will be considered as received by the mortgagee, and for the remaining amount, the pledger will be made to swear an oath. If he swears an oath, the mortgagee will not be able to take anything from the pledger; if he does not swear an oath, then the amount by which twenty dinars exceeds the value will be given to the mortgagee from the pledger.