on him—that the pledgee is liable, and whichever party is owed the difference may recover it from the other, even if evidence establishes that the pledge perished. This is Ashhab’s position. Muhammad ibn al-Mawwāz recorded both opinions from Mālik in his book.
The reasoning behind waiving liability is that we held the pledgee liable because we could not know whether his claim was truthful. Once his truthfulness is established, no grounds remain for imposing liability. Do you not see that he is not liable for property whose destruction is outwardly apparent, since the truth of his account can be established independently of him? The same applies when evidence establishes the destruction of property whose loss might otherwise remain unknown.
The reasoning behind maintaining liability is that when a legal rationale is adopted to close off an avenue altogether, no exceptions are made in individual cases. Do you not see that a father’s testimony in favour of his son, and a son’s testimony in favour of his father, are inadmissible because their natural inclinations ordinarily give grounds for suspecting bias? The rule is therefore applied uniformly and is not overturned by exceptional cases. Likewise, in the matter under discussion, merchandise, gold and silver generally belong to the category of property whose destruction may remain unknown, although an exceptional case may fall outside this general rule when it is known that the property perished without the pledgee having caused its destruction. The ruling is nevertheless applied uniformly according to what is usual, so as to close off the avenue altogether.
If the pledge is property whose destruction is outwardly apparent, such as houses, land or animals, and it perishes, the loss is borne by the pledgor, while the debt owed to the pledgee remains due in full. A group of scholars from Medina, Mecca and elsewhere, including al-Zuhrī, held that whenever a pledge perishes, the loss is borne by the pledgor and the debt owed to the pledgee remains due in full, whether or not the property can be concealed. This is also the position of al-Shāfi‘ī and Ahmad ibn Hanbal. They cited as evidence the hadith narrated by al-Zuhrī from Sa‘īd ibn al-Musayyab, that the Messenger of Allah ﷺ said:
“The pledge belongs to the one who pledged it: its gain is his, and its loss is his to bear.”
They explained that its gain means its increase and growth, while its loss means its diminution or destruction.
Section
The argument supporting Mālik’s distinction—may Allah have mercy on him—between property that can be concealed and property that cannot is that a pledge is treated neither as property held purely in trust nor as property for which the holder bears full liability. It shares features of both and therefore cannot be governed exclusively by the rules of either. This is because a trust