in the strict sense is one that brings no benefit to its holder; rather, all the benefit belongs to the owner, as with a deposit, or most of it does, as with a profit-sharing investment. Property held subject to full liability is that whose benefit belongs entirely to its holder, as with a loan, or whose possession involves a wrongful encroachment, as with usurpation. In the case under discussion, there is neither transgression nor wrongdoing that would entail liability, nor does the owner alone enjoy the benefit, which would exempt the pledgee from liability. Rather, both parties benefit: the owner obtains what he purchased or borrowed, while the debt remains outstanding against him on account of the pledge; without it, he would not have acquired that property. The pledgee benefits by obtaining security, and thus does not take possession solely for the owner’s benefit. The pledge therefore cannot be governed exclusively by the rules of either category, since it shares features of both.

Since these considerations require that it not be governed exclusively by either set of rules, and that a distinction be drawn, the result is the position we have stated, for no one has drawn a distinction other than the one we have mentioned. This is the essential point of the issue and its underlying legal reasoning. The proof against the position that makes the pledgee liable for the pledge in every case, without distinguishing between property that can be concealed and property that cannot—which is Abū Hanīfa’s position—is the presumption that the original state continues: the pledgee is initially free of liability, while the debt remains owed by the pledgor. Whoever claims that this original state has changed must furnish proof. Further evidence is the statement of the Prophet, peace be upon him:

“The pledge belongs to the one who pledged it: its gain is his, and its loss is his to bear.”

His words, “belongs to the one who pledged it,” indicate that its loss falls upon that person, which rules out liability on the pledgee’s part. As for the report they cite in support of their position—that “a man took a horse from another man as a pledge, and it died while in his possession, whereupon the Messenger of Allah, may Allah bless him and grant him peace, told the pledgee, ‘Your right is gone’”—it provides no proof for them. “Your right is gone” may mean your right to the security, not your debt. The point would then be that the pledgor is not obliged to provide another pledge in its place.

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The proof against the position of al-Shāfi‘ī and those who exempt the pledgee from liability in every case, without distinguishing between property that can be concealed and property that cannot, is the saying of the Prophet, may Allah bless him and grant him peace:

“The hand is answerable for what it takes until it returns it.”

The preposition ‘alā (“upon”) expresses obligation. He also said, may Allah bless him and grant him peace:

“The pledge answers for the debt it secures.”

This