Section: The fourth condition is that the right of another party must not have become attached to it. If the buyer has mortgaged it, then becomes insolvent, or has gifted it (25), the seller does not have the right of reclamation, just as if he had sold it or emancipated it. This is because reclamation would cause harm to the pledgee, and harm is not to be removed by further harm, and because the Prophet (may Allah bless him and grant him peace) said: "Whoever finds his commodity in its original state with a man who has become insolvent, he is more entitled to it" (26). In this case, he has not found it [unencumbered] with the insolvent person, and we know of no disagreement regarding this. If the debt of the pledgee is less than the value of the pledge, the entirety is sold, the pledgee's debt is paid from it, the remainder is returned to the rest of the insolvent's estate, and the creditors share in it. If only part of it is sold, the remainder is sold for their benefit, and the seller may not reclaim it. The Qadi said: He has the right to reclaim it. This is the school of al-Shafi'i, because it is the actual item of his property to which no one else's right has attached. Our position is that he has not found his commodity in its original state, so he has no right to take it, just as if the debt were to exhaust its entire value. What the Qadi mentioned cannot be derived according to the school, because the destruction of part of the sold item prevents reclamation, and likewise, its departure due to sale [also prevents it]. If he mortgages part of a slave, the seller does not have the right of reclamation for the remainder, for the reason we mentioned. If the sold item consists of two units and he mortgages one of them, does the seller have the right to reclaim the other? There are two views, based on the two narrations [in our school] regarding if one of two units is destroyed. If he redeems the pledge before the buyer's insolvency, or the [pledgee] releases him from the debt, then the seller has the right of reclamation because he has found his commodity in its original state with the buyer. If he becomes insolvent while it is still a pledge, and the pledgee releases the buyer from his debt or satisfies the debt from elsewhere, the seller also has the right of reclamation similarly.

Section: If it is a slave, and the buyer becomes insolvent after the penalty for a crime (arsh al-jinayah) has attached to its person, there are two views. The first is that the seller does not have the right of reclamation, because the attachment of a pledge to it prevents reclamation, and the penalty for a crime is given precedence over the right of the pledgee, so it is even more appropriate that he should not reclaim it. Abu al-Khattab mentioned this. The second is that it does not prevent reclamation, because it is a right that does not prevent the buyer from disposing of it (27), so it does not prevent reclamation, like a debt in his liability. It differs from a pledge, as the latter prevents the buyer from disposing of it. If we say he may not reclaim, its ruling is the ruling of a pledge. If we say he may reclaim, then he is given a choice: if he wishes, he may reclaim it diminished by the penalty for the crime, or if he wishes, he may demand his price along with the creditors. If the claimant releases the debtor from the crime, the seller may reclaim it, because he has found his commodity in its original state, free from the attachment of anyone else's right to it.