while it remains in the usurper’s hand, before the owner has retrieved it from him.

Al-Shāfiʿī, however, declares this impermissible: the article stays under the liability of usurpation until the owner actually takes possession of it.

The jurists also disagreed over pledging an undivided share. Abū Ḥanīfah prohibits it, whereas Mālik and al-Shāfiʿī allow it. The point at issue is whether an undivided share can, in practice, be placed under distinct possession.

Third Element
(the obligation for which the pledge is taken)

Mālik’s basic doctrine is that a pledge may be taken for every purchase-price arising from any sale, except (1) currency exchange (ṣarf) and (2) the capital of a salam that remains a liability in the debtor’s charge. Ṣarf requires immediate mutual delivery, so the pledge contract cannot attach to it; the same rule applies to the salam capital, though with less stringency than in ṣarf.

Some literalists (Ahl al-Ẓāhir) maintain that a pledge is valid only in salam—that is, for the object of a salam debt. They ground this on the fact that the Qur’ānic verse on pledges was revealed about deferred payment in sales, which they identify exclusively with salam. They therefore treat this as a condition for a valid pledge, citing the Almighty’s words:

“O you who believe! When you contract a debt for a stated term, write it down” (2:282),

followed by,

“Yet if you are on a journey and find no scribe, then a pledged possession shall suffice” (2:283).

Accordingly, in Mālik’s school a pledge may be taken in salam, in a loan, for the assessed value of destroyed property, for the indemnities payable for property damage, and for intentional wounds that do not carry retaliation, such as a penetrating head-wound (maʾmūmah) or a wound that reaches the body cavity (jāʾifah).

With regard to intentional homicide and wounds that normally entail retaliation, two opinions are reported on the permissibility of taking a pledge for the blood-money when the victim’s guardian pardons the offender. One view allows it, on the reasoning that the guardian may choose between blood-money and retaliation. The other view forbids it, holding that the guardian’s only right—if the perpetrator refuses blood-money—is retaliation.

In accidental homicide it is permissible, once the debt falls due, to take a pledge from whichever member of the ʿāqila becomes liable. A pledge is also valid for a loaned article that is guaranteed, but not for one that is not; for rents due under a lease; for a promised reward (juʿl) after the work is complete, though not before; and for the dowry. It is invalid, however, for ḥadd penalties, retaliation (qiṣāṣ), the slave’s manumission contract (kitāba), and, in general, for any obligation for which suretyship (kafāla) itself is invalid.

The Shāfiʿīs stipulate three conditions for the obligation secured by a pledge:

1. It must be a debt, for a pledge cannot be taken for a tangible object.
2. The debt must already be due; one may not demand collateral before liability arises—such as insisting on a pledge for money one intends to lend—though Mālik regards this as permissible.
3. Its enforceability must not be merely potential or doubtful, as in a pledge for a kitāba contract. In substance this view is close to that of Mālik.