during the pledgee’s period of liability. Thus, the presumption is that this juice remains as it was and has not fermented; consequently, the seller has no right to rescind.
Thus, the author’s words, may Allah have mercy on him, require a qualification: it must be a contract in which a pledge was stipulated. A person pledges juice, then the pledgee claims that it was wine in order to invalidate the pledge, and thereby acquire the option to rescind the sale contract.
His statement, “If he acknowledges that it belongs to someone else”: the subject of “acknowledges” is the pledgor; that is, the pledgor acknowledges that it belongs to someone else. His acknowledgement is accepted against himself, but it is not accepted to the detriment of the pledgee. This is undoubtedly sound wisdom.
For example, a man pledges a car to someone from whom he borrowed one hundred thousand. Then, two or three days later, the pledgor returns and says, “The car is not mine; it belongs to so-and-so, and here is its registration.” In this case, we say: the pledgor’s statement is accepted in one respect, but not insofar as it affects the pledgee’s right. We say: “We accept your acknowledgement, but we do not rule according to its implications until the pledge is discharged.” Thus, the car remains pledged, and once the pledge is discharged, we say, “Return it to the person whom you acknowledged to be its owner.” But not now, because this would nullify the pledgee’s right. The pledgee’s right preceded this acknowledgement, and so takes precedence over it.
This is undoubtedly sound wisdom, for if we did not say this, every pledgor could invalidate the pledge: whenever he pledged something, he could claim that it belonged to so-and-so, having made an arrangement with that person, and say, “I wish to acknowledge that this item belongs to you, so that I may say: I pledged someone else’s property.” We therefore say: the pledge remains as it is, and once the pledge is discharged, the person in whose favor the acknowledgement was made may take it.
Issue: If we assume that the man does not repay the debt, is the pledged property sold?