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.

Section: If they do not stipulate a pledge in the sale, and the buyer offers a pledge voluntarily, and the seller takes possession of it, its ruling is the same as that of a pledge stipulated in the sale. None of it may be released until the entire debt is paid. The pledgor does not have the right to withdraw it, nor to dispose of it, except with the permission of the mortgagee, although if he returns it due to a defect or otherwise, he does not have the right to annul the sale.

Section: If they conclude a sale with the condition that the sold object be a pledge for its price, it is not valid. This was stated by Ibn Hamid, and it is the opinion of al-Shafi'i; because the sold object, at the time the pledge was stipulated, was not yet in his ownership. It makes no difference whether he stipulated that he take possession of it and then pledge it, or stipulated its pledge before taking possession of it. It has been narrated from Ahmad that he said: If he detains the sold object for the remainder of the price, he is a usurper, and it is not a pledge unless it was a condition upon him in the sale itself. This indicates the validity of the condition, because it is permissible to sell it, so it is permissible to pledge it. The judge (al-Qadi) said: The meaning of this narration is that he stipulated it as a condition in the sale itself as a pledge other than the sold object, so he has the right to detain the sold object until he takes possession of the pledge, and if he does not fulfill it, the sale is annulled.