like a guarantee, and because Allah the Almighty said: "And if you are on a journey and cannot find a scribe, then a pledge in possession." He made it a substitute for writing, so it stands in its place; and the place of writing is after the debt has become due. In the verse is that which indicates this, which is His saying: "When you contract a debt for a stated term, write it down." He made it a response to the contract of debt, mentioned after it with the letter fa (indicating immediate sequence).

The second state: That the pledge occurs concurrently with the contract that necessitates the debt, such as if he says: "I sell you this garment of mine for ten [dirhams] for one month (11), provided you pledge to me your slave, Sa'd, for it." He says: "I accept that." This is also valid. This is the opinion of Malik, Al-Shafi'i, and the People of Reason (Ashab al-Ra'y); because the need calls for its establishment. For if he does not contract it at the time the right is established and stipulate it therein, he will not be able to compel the buyer to contract it, and the choice would be with the buyer, and it is likely that he will not offer it, and thus the security for the right would be lost.

The third state: That he pledges it before the right [is established], such as if he says: "I pledge to you this slave of mine for ten [dirhams] that you will lend me." This is not valid according to the manifest school (al-madhhab), and this is the choice of Abu Bakr and the Qadi. The Qadi mentioned that Ahmad explicitly stated this in the narration of Ibn Mansur, and this is the school of Al-Shafi'i. Abu al-Khattab chose the view that it is valid. So whenever he says: "I pledge to you this garment of mine for ten that you will lend me tomorrow," and he delivers it to him, then he lends him the dirhams, the pledge becomes binding. This is the school of Malik and Abu Hanifa; because it is a security for a right, so it is permissible to contract it before it becomes due, like a guarantee, or because its formation is permissible for something that will occur in the future, like a warranty of title (daman al-darak).

Our argument is that it is a security for a right that is not yet binding, so it is not valid before it, like testimony (shahada). And because the pledge is dependent on the right, so it does not precede it, like testimony, and the price does not precede the sale. As for the guarantee, it is possible that its validity is denied, but even if we conceded it, the difference between them is that a guarantee is a voluntary commitment of property through a statement, so it is permissible without a fixed right, like a vow (nadhr), unlike the pledge.

784 - Issue: He said: "And a pledge is not valid unless it is in possession (maqbudan) from one who has the right to act (ja'iz al-amr)."

He means that the pledge does not become binding except through possession (al-qabd). This is the opinion of Abu Hanifa and Al-Shafi'i. Some of our companions said: What is measured by volume or weight, its pledge does not become binding except through possession, while regarding other than these, there are two narrations; one of them is that it is not binding except through possession, and the other is that it is binding by the mere contract, like a sale. Ahmad has explicitly stated this in the narration of Al-Maymuni, and the Qadi interpreted the words of Al-Khiraqi as pertaining specifically to what is measured by volume or weight. This is not correct, for the words of Al-Khiraqi, despite their generality, were followed by what indicates the intent of generalization, which is his saying: "If it is of the type that can be moved, its possession is his taking it from its pledger as a moved item, and if it is of the type that cannot be moved, such as houses and lands, its possession is by the pledger vacating it for him (1)." Ahmad [has said] (2) regarding a house or a slave girl, if he returns it to the pledger: It is not a pledge in that instance. This is like the words of Al-Khiraqi. Malik said: The pledge becomes binding by the mere contract before possession; because it is a contract that becomes binding upon possession, so it is binding before it, like a sale. Our argument is the saying of Allah the Almighty: "Then a pledge in possession." He described it as being in possession. And because it is a contract of facilitation (irfaq) that requires acceptance, so it requires possession, like a loan (qard). And because it is a pledge that has not been possessed, so it does not necessitate its being handed over, just as if the pledger died. It does not resemble a sale, for a sale is an exchange (mu'awada) and is not a facilitation. And the saying of Al-Khiraqi: "from one who has the right to act" means that the pledger who pledges and gives possession must be legally competent to act regarding his property, which is the free, legally responsible (mukallaf), and rational adult. He must not be interdicted (mahjur) due to minority, insanity, stupidity (safah), or bankruptcy (falas). This is considered at the time of his pledging and giving possession; because the contract and delivery are not mandatory, but rather they are up to the choice of the pledger. So if he does not have sound choice, it is not valid. And because it is a type of disposition regarding property, so it is not valid from one who is interdicted without permission, like a sale. If one of the two parties to the pledge becomes insane before possession, or dies, the pledge does not become void; because it is a contract that leads to bindingness, so it does not become void by the insanity of one of the two contracting parties or his death, like a sale that contains an option (khiyar), and the guardian of the insane person stands in his place. If the insane person is the pledger, and the interest lies in giving possession, such as if it is a condition in a sale, the failure of which would cause harm by its annulment and the like, he shall give possession of it. And if the interest lies in...