Discussion of the Conditions Governing a Pledge

The stipulations expressly mentioned in the Sacred Law fall into two categories: conditions of validity and conditions that vitiate the contract.

As for the stated conditions that determine the validity of a pledge—meaning its very existence as a pledge—they are two in number.

The first is unanimously accepted in principle, though the jurists differ over the aspect in which it is a condition; it is the requirement of taking possession.

The second is disputed as to whether it is required at all.

Possession

The scholars are unanimously agreed, in general, that possession is a requisite of the pledge, by virtue of the Almighty’s words, “then a pledged possession shall suffice” (2:283). They disagree, however, on whether it is a condition for the contract’s validity or for its completion.

The practical difference is this: whoever says it is a condition of validity maintains that, until possession actually occurs, the pledger is not bound by the pledge. Whoever deems it a condition of completion holds that the contract is binding from the outset and that the pledger may be compelled to deliver the article—unless the pledgee delays demanding delivery until the pledger becomes insolvent, falls ill, or dies.

Mālik considers possession a condition of completion, whereas Abū Ḥanīfah, al-Shāfiʿī, and the Ẓāhirīs regard it as a condition of validity.

Mālik’s chief evidence is analogy: he likens the pledge to other contracts that become binding by verbal consent alone. The others rely on the divine statement, “then a pledged possession shall suffice” (2:283).

Some Ẓāhirīs go further, saying that a pledge is lawful only when a scribe is present, basing themselves on the verse, “and if you find no scribe, then a pledged possession shall suffice” (2:283). They also forbid entrusting the pledged object to the hands of a neutral third party.

According to Mālik, continued possession is itself a condition for the pledge’s validity; whenever the article returns to the pledger’s hand—with the pledgee’s permission, whether as a loan, a deposit, or otherwise—the pledge ceases to be binding. Al-Shāfiʿī, by contrast, does not regard ongoing possession as a prerequisite for validity.

Mālik therefore applies the Qur’anic phrase in its full, apparent sense, deducing from “a pledged possession” both the requirement of initial delivery and of its continuance. Al-Shāfiʿī contends that once possession takes place the pledge is valid and concluded; thereafter it may be loaned or otherwise disposed of, just as in a sale.

In strict logic, one who makes possession a condition of validity should also require its continuance, while one who does not should waive both conditions.

All agree that pledging while on a journey is permissible. They differ regarding the settled situation: the majority permit it, whereas the Ẓāhirīs and Mujāhid deem it impermissible in town, taking literally the words, “And if you are on a journey…” (2:283).

The majority rely on the report that “the Messenger of Allah, peace and blessings be upon him, pledged while resident.” The inference that the verse forbids pledging in town belongs to the category of argument from the unspoken (dalīl al-khiṭāb).