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Al-Mughni by Ibn Qudama - Edited by Al-Turki
Volume 6 · Page 516

Translation · EN

its benefits are left idle. If it is a house, it is closed up; and if it is a slave or something else, its benefits remain idle until the pledge is released. If they agree to lease or lend the pledge, that is permissible. This is the apparent view of Al-Khiraqi, because he regarded the revenue of the house and the service of the slave as being part of the pledge; if their benefits were left idle, they would have no revenue. Ibn Abi Musa said: If the pledger gives the pledgee permission to lend or lease it, it is permissible, and the rent is a pledge. If the pledger leases it with the permission of the pledgee, it exits the pledge in one of the two scholarly opinions, and in the other, it does not exit it, just as if the pledgee had leased it. Abu al-Khattab said regarding communal property: The judge leases it on their behalf. Abu Bakr mentioned in [his work on] Al-Khilaf that the benefits of the pledge remain idle absolutely, and they may not lease it. This is the view of Al-Thawri and the People of Opinion (Ashab al-Ra'y). They stated: If the pledger leases the pledge with the permission of the pledgee, it is an exit from the pledge, because the pledge necessitates its continuous detention with the pledgee or his deputy. Thus, whenever a contract is established that entails the termination of this detention, the pledge is voided. We argue that the purpose of the pledge is to provide security for the debt and to satisfy it from its price when it is impossible to satisfy it from the pledger's liability, and this does not conflict with benefiting from it, nor leasing it, nor lending it, so it is permissible to combine them, like the pledgee's use of it. Furthermore, leaving its benefit idle is a waste of wealth, and the Prophet (peace and blessings of Allah be upon him) forbade [the wasting of wealth]. It is also an entity to which the right of security has attached, so it does not prevent its leasing, like a slave when he is held as collateral with the permission of his master. We do not concede that the requirement of the pledge is detention; rather, its requirement is the attachment of a right to it in a way that provides security, and that is not in conflict with benefiting from it. Even if we were to concede that its requirement is detention, it does not prevent the lessee from being a deputy on his behalf in holding and detaining it, and being the one who satisfies its benefit for himself.

Notes

(4) In [Manuscript] A: "its wasting". The Hadith was recorded by Al-Bukhari, in: The Chapter of 'There is no charity except from what is left after wealth...', from the Book of Zakat; and in: The Chapter of 'What is forbidden regarding the wasting of wealth...', from the Book of Borrowing; and in: The Chapter of 'Whoever rejects the affair of the fool...', from the Book of Disputes; and in: The Chapter of 'What is disliked of gossip...', from the Book of Softening Hearts. Sahih al-Bukhari 2/139, 3/157, 159, 8/124. And by Muslim, in: The Chapter of 'The prohibition of excessive questioning...', from the Book of Judicial Decisions. Sahih Muslim 3/1340, 1341. And by Al-Darimi, in: The Chapter of 'Indeed, Allah dislikes for you gossip...', from the Book of Softening Hearts. Sunan al-Darimi 2/311. And by Imam Ahmad, in: Al-Musnad 4/250-251, 255.

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