it. They further argue that His words, “Then let there be pledges taken into possession” [al-Baqarah: 283], must be either a statement or a command. If they are a statement, possession is a condition, since a statement cannot contradict what it describes; if they are a command, that command is binding.

The evidence supporting our position is the saying of Allah, Mighty and Majestic:

“O you who believe, fulfil your contracts.” [al-Māʾidah: 1]

The contract has already been concluded, for it consists of offer and acceptance, both of which have occurred. Moreover, He said, “Then let there be pledges taken into possession” [al-Baqarah: 283], making possession one of their attributes. This indicates that they are pledges before possession is taken, since describing something by an attribute must convey a meaning beyond its mere existence.

Further, we agree that when the pledgor delivers the pledge into the pledgee’s possession, it becomes valid and binding. Now, either the preceding declaration, followed by possession, had already established the pledge, or it had not. If it had, that is precisely our position: what he delivered was something already established as a pledge, so its status as a pledge must precede its delivery. If it had not, this taking of possession could not make it a pledge, since merely taking possession does not make the property received a pledge. Thus, our agreement that it becomes binding upon possession clearly demonstrates that it is constituted by the verbal declaration.

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Scholars disagree about a pledge placed in the custody of a trustworthy third party. Some hold that possession has not been taken. Mālik’s position, however, is that it has: the pledge therefore serves as evidence in the pledgee’s favour, and he has a prior claim to it over the other creditors. Ismāʿīl al-Qādī reported this from Mālik in al-Ahkām, and Ibn al-Mawwāz also held this view. It is the apparent purport of the reports in al-Mudawwana and elsewhere. Asbagh, however, stated in Yahyā’s transmission in the Book of Pledges that a pledge does not serve as evidence in the pledgee’s favour when it is held by a trustworthy third party. This is also the apparent meaning of Mālik’s statement in his Muwattaʾ.

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Since Allah, Mighty and Majestic, made pledges a substitute for written documentation and witnesses as a means of securing a debt when no scribe is available, saying:

“If you are on a journey and cannot find a scribe, then let there be pledges taken into possession” [al-Baqarah: 283],