The stipulation that is categorically forbidden by the revealed texts is for a man to pledge an article on the condition that, if he pays what he owes by its due date, well and good, otherwise the pledged article becomes the creditor’s property. The jurists are unanimous that this clause renders the contract void and that it is precisely what the Prophet—peace and blessings be upon him—meant by his statement, “A pledge is not to be foreclosed.”

Discussion of the Third Part of This Book: the Legal Rulings
This third part examines the rulings themselves. It is divided into: (1) the rights and duties of the pledger with respect to the pledge, (2) the rights and duties of the pledgee, and (3) the points at which they differ—whether those differences arise from the contract itself or from subsequent events. We shall mention only those issues whose disagreement (or consensus) among the jurists of the various regions has become well known.

The pledgee’s right concerning the collateral is to retain it until the pledger settles his debt. If the pledger fails to do so at the appointed time, the pledgee may bring the matter before the ruler, who will sell the pledge on the debtor’s behalf and pay the creditor out of its proceeds should the debtor refuse to sell; the same procedure applies if the debtor is absent. Should the pledger authorise the pledgee to sell the collateral when the term falls due, the sale is valid, though Mālik disliked it unless the matter is first referred to the ruler.

In the view of the majority, the pledge secures the whole debt as well as any fraction of it—that is, if the article is pledged for a certain sum and the debtor pays part of that sum, the entire pledge remains in the pledgee’s hand until he receives the balance of his right. Another group maintains that the pledgee may retain only so much of the collateral as corresponds to the outstanding portion of the debt.

The majority reason that the article is detained on account of the debt; therefore it must remain fully detained for every portion of that debt. Their precedent is the sequestration of an estate from the heirs until the deceased’s debts have been paid. The opposing group argues that since the whole article is held against the whole debt, its parts should be held only against corresponding parts of the debt, drawing an analogy with suretyship.

A well-known question in this chapter is their disagreement over the detached increase of the pledge—such as fruit on mortgaged trees, rental income, or offspring—whether such increase is included in the pledge or not. Some hold that none of the detached increase produced while the article is in the pledgee’s possession enters the pledge; al-Shāfiʿī is among those who adopt this view. Others maintain that all such increase is included, a position held by Abū Ḥanīfah and al-Thawrī.

Mālik draws a distinction: any detached increase that shares the pledged article’s very form and nature is included in the pledge—for example, the child of a female slave together with its mother—whereas that which is not of the same form is not included, whether it is generated from the article itself, like the dates of a palm tree, or arises independently, such as a house’s rent or a slave’s earnings.