Section: As for guaranteed entities (al-a'yan al-madmuna), such as usurped property (maghsub), loaned items (awari), items taken via a corrupt sale, or items taken for the purpose of appraisal, there are two views regarding them. One of them is that it is not valid to take a mortgage for them. This is the school of al-Shafi'i, because the right is not established in the liability (dhimma), thus it resembles what we have already mentioned. Furthermore, if he mortgages it for its value should it be destroyed, it is a mortgage for something that is not yet obligatory, and it is not known that it will lead to an obligation. If he takes the mortgage for the entity itself, it is not valid, because it is not possible to fulfill the entity itself from the mortgage, thus it resembles the prices of specific sales.

The second [view] is that it is valid to take a mortgage for them. This is the school of Abu Hanifa, who said: Any entity that is guaranteed by itself, it is permissible to take a mortgage for it. He means what is guaranteed by its equivalent or its value, such as a sold item, which is permissible to take a mortgage for, because it is guaranteed due to the corruption of the contract. This is because the purpose of the mortgage is security for the right, and this is achieved, for the mortgage with these entities compels the mortgagor to render them. If their rendering becomes impossible, he satisfies their equivalent from the price of the mortgage, thus they resemble a debt in the liability.

Section: The Qadi said: Everything for which it is permissible to take a mortgage, it is permissible to take a guarantor for it, and what is not permissible to take a mortgage for, it is not permissible to take a guarantor for, except for three things: the warranty of a sold item (uhdat al-mabi'), for which it is valid to take a guarantor but not valid to take a mortgage; a manumission contract (kitaba), for which it is not valid to take a mortgage for its debt, though there are two narrations regarding guaranteeing it; and that which has not yet become due, for which it is not valid to take a mortgage, but it is valid to guarantee it. The difference between the two is twofold. First, the mortgage for these things invalidates the facility (irfaq). For if one sells his slave for a thousand, and provides a mortgage equal to a thousand, it is as if he did not receive the price and did not benefit from it. Similarly, when the slave under a manumission contract provides what is equal to his manumission price, he has not benefited from the delay (ajal), because he could have sold the mortgage or continued the manumission contract, and he would be relieved from the suspension of the benefits of his slave. Guarantee, however, is contrary to this. Second, the harm of the mortgage is widespread, because it remains with the buyer, thus preventing the seller from disposing of it, whereas guarantee is contrary to this.