the ruling is negated by its absence; therefore, the pledging of undivided property (musha') is valid for this reason. Ibn Abi Layla, Malik, al-Batti, al-Awza'i, Sawwar, al-'Anbari, al-Shafi'i, and Abu Thawr held this view. The scholars of opinion (as-hab al-ra'y) said: Its pledging is not valid, unless one pledges it from one's partner, or the two partners pledge it to one man, or a man pledges his house to two men and they take possession of it together; because it is a contract whose intent was missed due to a factor connected to it, so it is invalid, just as if one were to marry his foster sister. Their clarification is that its intent is permanent retention, and the mortgagee cannot retain undivided property because his partner will remove it on his turn, and because the continuity of possession is a condition, and this property deserves the removal of hand from it due to a factor that accompanied the contract, so its pledging is invalid, like usurped property. Our evidence is that it is an item whose sale is permissible as a subject for a right, so its pledging is valid, like divided property. We do not concede that its intent is retention; rather, its intent is the settlement of the debt from its price when settlement from other than it is impossible, and undivided property is susceptible to that. Furthermore, what they mentioned is invalidated by the pledging of the killer, the apostate, the usurped property, and the pledging of someone else’s property without his permission and without legal authority, as this is valid according to them.

Section: It is valid to pledge part of one’s share of undivided property, just as it is valid to pledge all of it, regardless of whether one pledges it as undivided in his share, such as pledging half of his share, or pledges his share of a specific part, such as if he owns half of a house and pledges his share of a specific room within it. The Qadi said: It is possible that the pledging of his share of a specific part of something that can be partitioned is not valid, due to the possibility that the partners might partition it, resulting in the pledge ending up in the share of his partner. Our evidence is that its sale is valid, so its pledging is valid, like other things. What he mentioned is not valid because the pledger is prohibited from disposing of the pledge in a way that harms the mortgagee, so he is prevented from partitioning it, just as he is prevented from selling it.

Section: It is valid to pledge an apostate, a killer in warfare (muharaba), and an offender (jani), whether the crime was intentional or by error against the soul or less than that. The Qadi said: The pledging of a killer in warfare is not valid, and Abu Bakr chose the view that the pledging of the offender is not valid. This is the school of al-Shafi'i. The basis of the disagreement on this is founded on the disagreement regarding his sale, and the discussion on that has already passed in its place.