Section: If the pledge becomes defective, or the juice turns into wine before the mortgagee takes possession of it, the seller has the choice between accepting it while it is defective and being satisfied with it without a pledge—in the case where the juice turns to wine—or annulling the sale and returning the pledge. If he learns of the defect after taking possession of it, the same applies. He is not entitled to any compensation (arsh) for the defect while retaining it, because the pledge only becomes binding upon what he has successfully taken into possession, which is what remains present; the part that is lost was never binding to be delivered, so no compensation is owed in its stead, unlike the sold object. If it is destroyed or becomes defective after possession, the seller has no option [to annul]. If they disagree on the time the defect occurred, and it is a matter that does not admit of any possibility [of proof], then the word is that of the person [whose claim] is accepted without an oath, because the oath is only intended to avert uncertainty, and this admits of no uncertainty. If both their claims are possible, it is built upon the disagreement of the buyer and seller regarding the occurrence of a defect in the sold object, in which there are two narrations, and thus there are two viewpoints here: one of them is that the word is that of the pledgor. This is the opinion of Abu Hanifa and al-Shafi'i, because the original state is the validity and binding nature of the contract. The other [viewpoint] is that the word is that of the mortgagee, which is the analogy of al-Khiraqi’s opinion, based on his saying something similar regarding a sale; this is because they disagreed on the mortgagee's possession of the lost part, so his word is accepted, just as if they disagreed on the possession of a distinct part of it. If they disagree on the time of destruction, and the pledgor says 'after possession' while the mortgagee says 'before it', the word is that of the pledgor, because he is denying [the claim of] possession. If the pledge was juice and it turned into wine, and they disagreed on the time it transformed, the word is that of the pledgor, as explicitly stated by Ahmad. The judge (al-Qadi) said: Another narration may be derived from it, which is that the word is that of the mortgagee, as in the disagreement regarding a sale, which is the opinion of Abu Hanifa, because the original state is the absence of possession, just as if they disagreed on the time of destruction. Our position is that they agreed upon the contract and possession, but disagreed on what renders it corrupt, so the word is that of the one who denies it, just as if they disagreed on a corrupt condition; and it differs from their disagreement regarding the occurrence of a defect in two respects: first, they did not agree on possession here, whereas there they disagreed on the possession of the lost part; second, they disagreed here on what corrupts the contract, whereas a defect is contrary to that.

Section: If he finds a defect in the pledge after another defect has occurred while in his possession, he may return it and annul the sale, because the mortgagee is not held responsible for a defect that occurs while in the owner's (pledgor's) possession, unlike [the case of] the sold object. The judge (al-Qadi) derived two narrations from this, based on the sale; according to his opinion [in the sale], if one does not possess the right of return, one does not possess the right of annulment. The correct view is what we have mentioned. If the pledge perishes while in the possession of the mortgagee, and then it is learned that it was defective, he does not have the right to annul the sale, because it has become impossible for him to return it. If it is said: 'But the pledge is not guaranteed (damun), and for this reason, its return is not prevented by the occurrence of a defect in it.' We say: Its value is not guaranteed because the contract was not concluded on its ownership, but rather on it as collateral; thus, it is guaranteed by the collateral status. However, when it is defective, he has [still] returned it and is entitled to the substitute for what he returned. Here, he has not returned anything, so if we were to mandate a substitute for him, we would be mandating that the pledgor give something other than what he stipulated upon himself.