And acting in its place. If the pledgor pardons the property, the Qadi says: The right of the pledgor lapses, but not the right of the mortgagee. The value is thus taken and becomes a pledge. When the pledge expires, the indemnity (arsh) reverts to the offender, just as if he acknowledged that the pledge was usurped or was an offender. If the debt is exacted from the indemnity, it is possible that the offender may have recourse against the one who pardoned, because his wealth was spent in the satisfaction of his debt, so its compensation became incumbent upon him, just as if he had usurped it or borrowed it and then pledged it. It is also possible that he may not have recourse against him, because nothing was found on his part regarding the offender that necessitates the obligation of compensation; rather, it was exacted for a reason that occurred while it was in his ownership, resembling the situation if a person commits an offense against his slave, then gifts him to someone else, and he perishes due to the prior offense. Abu al-Khattab said: The pardon is valid unconditionally, and its value is taken from the pledgor to be a pledge, because he released his debt from his debtor, so it is valid, like his other debts. He said: It is not possible for it to be a pledge while the pledgor has no right in it, so the value becomes incumbent upon him because he caused the loss of the mortgagee’s right, resembling the situation if the substitute for the pledge perished. Al-Shafi'i said: The pardon is not valid at all, because the right of the mortgagee is connected to it, so the pardon of the pledgor regarding it is not valid, just like the pledge itself, and as if the pledge were gifted or usurped, and its usurper was pardoned. This is more correct in critical analysis. If the mortgagee says: "I have dropped my right to that," it lapses, because it benefits the pledgor and does not harm him. If he says: "I have dropped the indemnity" or "I have acquitted him of it," it does not lapse, because it is the property of the pledgor, so it does not lapse by the dropping of someone else. Does his right lapse? There are two views: One of them is that it lapses, which is the opinion of the Qadi, because that entails the dropping of his right; so if the right of another does not lapse, his right lapses, just as if he said: "I have dropped my right and the right of the pledgor." The second is: It does not lapse, because the pardon and acquittal of it are not valid, so that which it entails is also not valid.

Section: If a man acknowledges an offense against the pledge and both [the pledgor and mortgagee] deny him, there is nothing for them. If the mortgagee denies him and the pledgor confirms him, he (the pledgor) gets the indemnity, and the mortgagee has no right to it. If the mortgagee alone confirms him, his right becomes connected to the indemnity, and he has the right to seize it. When the pledgor pays the right or the mortgagee acquits him,

Section: If the pledge is a pregnant slave-girl and a stranger strikes her belly, and she casts out a dead fetus, then the tenth of her mother's value is due for it. If she casts it out alive and it then dies at a time that one like it would live, then its value is due. Guarantee for the decrease caused by the birth is not required, because the decrease from the birth is not distinct from that which is required as a guarantee for her child. It is possible that he must guarantee the decrease caused by the birth, because it resulted from his action, so its guarantee became incumbent upon him, just as if he usurped her and then committed an offense against her. It is also possible that the greater of the two matters is required: the decrease of her or the guarantee of her fetus, because the cause for her guarantee was found, and if their guarantees do not combine, the guarantee of the greater of them is required. If he strikes the belly of an animal and it casts its offspring dead, the amount by which the offense decreased its value is due, and nothing else, and whatever is required of all that is a pledge along with the mother. Al-Shafi'i said: What is required for the decrease of the mother, or for the decrease of the animal, is a pledge with it, and likewise what is required for its offspring. What is required for the fetus of the slave-girl is not a pledge, because the increase (growth) of the pledge is not a pledge. Our position is that this is a guarantee required due to an offense against the pledge, so it is part of the pledge, like that which is required for the decrease caused by birth and the guarantee of the offspring of an animal. Their statement that the increase of a pledge does not enter into the pledge is not accepted.

793 - Issue: He said: "If he buys an item from him on the condition that he pledges to him for it something of his wealth that they both know, or on the condition that he gives him a guarantor for the price whom they both know, the sale is permissible. If he refuses to deliver the pledge, or the guarantor refuses to act as a guarantor, the seller is given the choice to annul the sale or to maintain it without a pledge or a guarantor."

Al-Hamil: The guarantor. It is a fa'il form with the meaning of a fa'il, it is said: damin (guarantor) and hamil (guarantor).