The stronger view is that a pledge constitutes a guarantee of the debt, binding the liability to the very substance of the pledged item. Therefore the kind of debt, its amount, and its defining features must all be stated, and—according to the sounder opinion—the pledged object now in the pledgee’s possession must likewise be specified. If the article perishes while in the pledgee’s hand, he incurs no liability, and once he has taken possession the owner has no recourse against him. When the debt falls due—or if it was already due—the owner is asked to sell the item; if he does not settle the debt, it is sold, and after the debt is paid the owner takes whatever price it brings.
Section
For an obligation to be secured by a pledge it must be an established, binding debt. Hence it is invalid to secure the return of usurped or borrowed property, according to the preponderant view, and likewise to secure a loan that has yet to be advanced. If someone says, “I have lent you these coins and take your slave as security,” and the other replies, “I have borrowed and pledged,” or he says, “I have sold it to you for such-and-such and take the garment as security,” and the buyer responds, “I have bought and pledged,” the pledge is valid on the stronger opinion. It is not valid to secure the instalments of a manumission contract, nor the reward of a juʿāla (contingent fee) before the task is completed—although some permit it once the work has begun. One may, however, pledge for the sale-price during the option period, and an additional pledge may be taken for the same debt.
Under the new opinion, the pledgee may not re-pledge the property already in his possession for another debt. A pledge becomes binding only when the article is delivered to someone capable of contracting, and agency is permissible; nevertheless, the pledgee may not appoint the pledger or the pledger’s slave as his agent—though there is a view that allows a slave who has been authorised—whereas he may appoint his own mukātib slave.
If a man pledges an article that is still on deposit with a custodian, or property he has usurped that remains in his own hand, the pledge is not binding until enough time has passed for him to take possession. The preferred view is that the custodian’s (or usurper’s) permission is required to seize it. Pledging the usurped property does not free the usurper from liability, whereas depositing it with the pledgee does, on the sounder opinion.
The pledger may withdraw from the pledge before delivery by any act that removes ownership—such as a received gift, a contract of manumission, and, on the stronger view, a declaration of tadbīr—as well as by giving it as another pledge that has been delivered, or by impregnating a female slave; but not by mere intercourse with her nor by marrying her off. If one of the contracting parties dies before delivery, becomes insane, the juice turns into wine, or the slave runs away, the pledge is not thereby annulled, according to the sounder position.
Once the pledger has delivered the item, he no longer has the right to dispose of it in a way that transfers ownership. Concerning his emancipation of the pledged slave there are several opinions: the preferred view is that, if he is solvent, it takes effect and he must pay the slave’s value on the day of emancipation, that value itself becoming the pledge. If the emancipation is not allowed to take effect and the pledge is later released, it will then take effect on the stronger opinion—even if he had made it conditional.