Section: If he pledges to him wealth of his that is in the possession of the mortgagee—whether as a loan (ariyah), a deposit (wadi'ah), as a result of usurpation (ghasb), or the like—the pledge is valid, because he is its owner and it is possible to take possession of it, so its pledge is valid, just as if it were in his own hand. The apparent opinion of Ahmad is that the pledge becomes binding with the contract itself, without needing any additional action, for he said: 'If the deposit is in his hand after the pledge, it is a pledge.' Thus, he did not consider an additional action to be necessary. This is because the possession (yad) is established, and the taking of possession (qabd) has occurred. The ruling merely changes, and it is possible for the ruling to change while the possession continues, just as if he were asked about the deposit and denied it, for the ruling changes and it becomes guaranteed (madmunah) upon him without any additional action. If the denier returns, acknowledges it, and says to its owner: 'Take your deposit,' and he says: 'Leave it with you as a deposit as it was, and there is no guarantee upon you for it,' the ruling changes without the occurrence of any additional action.

Al-Qadi and the companions of Al-Shafi'i said: 'It does not become a pledge until a period passes during which taking possession of it is feasible. If it is movable, [it becomes a pledge] with the passage of a period during which its transport is possible; if it is a weighed item, with the passage of a period during which its measurement is possible; and if it is immovable, with the passage of the period of vacation (takhliyah). If it is absent from the mortgagee, it does not become possessed until he or his agent meets it, then a period passes during which possession of it is possible.' This is because the contract requires possession, and possession is achieved by his action or the possibility thereof, and that suffices; there is no need for the actual occurrence of possession, because it is possessed in reality. If it perishes before the passing of a period during which its possession is possible, it is like the perishing of a pledge before possession.

Then, does it require the permission of the pledger to take possession? There are two potential views: First, it does require it, because it is a taking of possession by which a non-binding contract becomes binding, so it does not occur without permission, as if it were in the hand of the pledger; and his acknowledgement of it being in his [the mortgagee's] hand is not sufficient, just as if he acknowledged the usurped property to be in the hand of its usurper while it was possible to take it from him. Second, it does not require permission to take possession, because his acknowledgement that it is in his hand is equivalent to his permission to take possession. If he gives him permission to take possession, then retracts it before the passing of a period...