Mālik adds: if witnesses testify that property prone to concealment has perished while in the pledgee’s hand without any negligence or misconduct, the pledgee is not held liable.

Al-Awzāʿī and ʿUthmān al-Battī, however, maintain that he is liable in every case, whether or not evidence is produced. Ibn al-Qāsim sided with Mālik, whereas Ashhab adopted the view of ʿUthmān and al-Awzāʿī.

Those who regard the pledge as a non-guaranteed trust base their position chiefly on the report transmitted by Saʿīd ibn al-Musayyib from Abū Hurayrah, that the Prophet—peace and blessings be upon him—said:

“The pledge is not foreclosed; it remains with the one who pledged it. Its gain is his, and its loss is upon him,”

meaning: its yield and revenue belong to him, while the cost of redeeming it and any misfortune that befalls it are his responsibility. They argue that since the pledger has accepted the pledgee’s custodianship, the case parallels that of goods left in deposit.

Al-Muzanī, one of al-Shāfiʿī’s companions, cites in support the fact that Mālik and those who follow him declare livestock and any property whose destruction is apparent to be a trust; thus, all pledged property should receive the same treatment.

Abū Ḥanīfah likewise holds that whatever portion of the pledge’s value exceeds the debt is a trust, and therefore the whole of it should be deemed a trust. In Mālik’s reading of the Prophet’s words—peace and blessings be upon him—“and its loss is upon him,” the loss refers to its upkeep.

They further interpret the ḥadīth, “The pledged animal may be ridden and milked,” to mean that the hire for riding belongs to its owner, while the cost of its maintenance is on him.

Abū Ḥanīfah and his colleagues construe the Prophet’s statement—peace and blessings be upon him—“its gain is his and its loss is upon him” to signify that its gain is whatever value exceeds the debt, and its loss is whatever falls short of it.

Those who consider the pledge guaranteed by the pledgee argue that the pledged item is an object to which the right of recovery is initially attached; consequently, that right is extinguished if the item is destroyed. The precedent is the perishing of a sold article still in the seller’s possession while he withholds it pending payment—an analogy accepted by the majority, although Mālik treats that case like a pledge.

They also cite the report that a man took a horse as collateral and it died in his custody; the Prophet—peace and blessings be upon him—said to the pledgee, “Your right has vanished.”

Mālik’s distinction between goods that can be concealed and those that cannot rests on juristic preference (istiḥsān), the idea being that suspicion attaches to items that may be hidden but not to those that cannot be concealed. Scholars have differed over the nature of the istiḥsān to which Mālik so often appeals: some disparage it, likening it to Abū Ḥanīfah’s istiḥsān and defining it as a ruling issued without evidence. For Mālik, however, istiḥsān is the reconciliation of conflicting proofs, and as such it is not a verdict rendered without evidence.

The majority agree that the pledger may neither sell nor gift the pledged property; should he attempt to sell it, the pledgee has the right either to ratify or to annul the sale.