What is permissible to sell is permissible to mortgage (use as security), and what is not [permissible to sell] is not [permissible to mortgage]. 880
وَكُلُّ مَا جَازَ بَيْعُهُ، جَازَ رَهْنُهُ، وَمَا لاَ، فَلاَ
Book of Zakat
Mortgaging & Security Deposits
الرَّهْنِ
The Book of Purification
The Book of Prayer
Importance of Prayer & Ruling of its Abandonment
Facing the Qiblah & Intention in the Prayer
Etiquettes of Walking to Prayer and its Description
Description of Prayer Continued
Description of Prayer Continued
Description of Prayer Continued
Pillars and Mandatory Acts of Prayer
Two Prostrations of Forgetfulness
Supererogatory (Voluntary) Prayers
Supererogatory (Voluntary) Prayers Continued
Times of Prohibition of (Supererogatory) Prayer
Congregational Prayers & Latecomers
Jumu'ah (Congregational Friday) Prayer
The Book of Funerals
The Book of Fasting
The Book of Hajj and 'Umrah
Book of Zakat
The Book of Selling and Commercial Transactions
Introduction & Commercial and Selling
Selling of Primary & Secondary Commodities
Cancellation Options in Transactions
Cancellation Options Continued
Debt Transference & Guarantor-ship
Mortgaging & Security Deposits
Partnership & Companies Continued
Reviving Barren Lands & Per-Job Wage
Lost and Found Property & Foundlings
Prize Money & Deposits for Safekeeping
The Book of Bequests
The Book of Inheritance
The Book of Marriage
The Book of Divorce
The Book of Sadaq
The Book of Dhihar
The Book of Lian
The Book of Foods
Book of Fatal and Non-Fatal Assault
The Book of Indemnities
The Book of Hudood
The Book of Jihad
The Book of the Judiciary
The Book of Testimonies
Appendix
Glossary
Mortgaging and Security (Rahn)
Mortgaging is binding only after the mortgage/security has been received: by transferring it if it is a movable property, and by allowing the seller full control of it if it is an immovable one. 881 If the mortgagee's trustee receives the mortgage/security, it is as if the mortgagee has received it himself or herself.
وَلاَ يَلْزَمُ إِلاَّ بِالْقَبْضِ، وَهُوَ نَقْلُهُ إِنْ كَانَ مَنْقُوْلاً، وَالتَّخْلِيَةُ فِيْمَا سِوَاهُ وَقَبْضُ أَمِيْنِ الْمُرْتَهِنِ يَقُوْمُ مَقَامَ قَبْضِهِ
The mortgage/security is a trust with the mortgagee or with his or her trustee. The mortgagee or trustee is not held responsible for it unless he or she transgresses (ta‘addin). 882
وَالرَّهْنُ أَمَانَةٌ عِنْدَ الْمُرْتَهِنِ، أَوْ أَمِيْنِهِ لاَ يَضْمَنُهُ إِلاَّ أَنْ يَتَعَدَّى
The mortgagee should not make any benefit out of the property which has been used as security, except if it is a riding or milk animal; then he or she may ride it or milk it for [only] as much as the expense of forage. 883
وَلاَ يَنْتَفِعُ بِشَيْءٍ مِنْهُ، إِلاَّ مَا كَانَ مَرْكُوْبًا أَوْ مَحْلُوْبًا فَيُرْكَبُ وَيُحْلَبُ بِقَدْرِ الْعَلَفِ
880. For example, one may not use wine or idols as security. (Editor)
881. This means that the mortgagee is not entitled to the mortgage/security, even after the mortgagor has agreed to mortgage it, until he or she actually receives it. (A) + (+H, +S). According to (-M), it shall be binding by the promise of the mortgagor.
882. What is meant by ‘transgression’ (ta‘addin) here is causing damage or loss, intentionally or due to carelessness.
883. The security either needs sustenance or it does not. If it does not, then by consensus, the mortgagee shall not use it without the permission of the mortgagor (and in the case of a mortgage/security taken against a loan, not even with permission). If it is something that does require sustenance, such as a beast of burden or livestock, then the mortgagee who sustains it may use it without the permission of the mortgagor, in exchange for spending on it. This is one of the peculiar positions (mufradât) of the Ḥanbali madh-hab. Their proof is that the Messenger of Allah (SA) said:
The mortgagor is entitled to the gain from the yield, earnings and growth of the security, but the gain remains as security 884
with it. 885
The mortgagor is to bear the expenses of the security, such as those of maintenance, storing, and shrouding in case of death [of a slave].
وَلِلرَّاهِنِ غُنْمُهُ مِنْ غَلَّتِهِ، وَكَسْبِهِ وَنَمَائِهِ لَكِنَّهُ يَكُوْنُ رَهْنًا مَعَهُ وَعَلَيْهِ غُرْمُهُ مِنْ مُؤْنَتِهِ، وَمَخْزَنِهِ، وَكَفَنِهِ إِنْ مَاتَ
If the mortgagor causes damage to the security or excludes it from the mortgaging, as in the case of
وَإِنْ أَتْلَفَهُ، أَوْ أَخْرَجَهُ مِنَ الرَّهْنِ بِعِتْقٍ أَوِ اسْتِيْلاَدٍ، فَعَلَيْهِ
“It shall be permissible to ride or milk the item of security if it is a mortgaged (beast of burden or livestock), and its sustenance is upon the one who rides and drinks.” (B – from Abu Hurayrah)
الرَّهْنُ يُرْكَبُ بِنَفَقَتِهِ إِذَا كَانَ مَرْهُونًا، وَلَبَنُ الدَّرِّ يُشْرَبُ بِنَفَقَتِهِ إِذَا كَانَ مَرْهُونًا، وَعَلَى الَّذِي يَرْكَبُ وَيَشْرَبُ النَّفَقَةُ
The majority made the mortgagor responsible for the maintenance of the security, and did not allow the mortgagee to ride it or milk it in exchange for sustaining it. They had counter-arguments to this hadith, including the argument that the security is still owned by the mortgagor, by agreement, and the Prophet (SA) said:
“It is not permissible to take a person’s wealth unless he or she gives it willingly.” (A. al-Albâni: S)
لَا يَحِلُّ مَالُ امْرِئٍ إِلَّا بِطِيبِ نَفْسٍ مِنْهُ
The Ḥanbalis, however, found the hadith of Abu Hurayrah to be clear proof for their conclusion.
884. (A) + (+H, +M, +S)
885. The appreciation of the security could be in the form of yield (like the crops of a farm), earnings (like the rent of a beast of mount or car), growth (like the increase in weight, or reproduction in the case of livestock). All forms of increase belong to the mortgagor, but they will remain with the original security in the possession of the mortgagee until the security is returned to the mortgagor. (A) + (+H). According to (-M, -S), only profit that cannot be separated from the original security will remain with the mortgagee.
manumission of a slave used as security or de-commodification through birth, 886 then the mortgagor has to mortgage an equivalent value as a substitute.
قِيْمَتُهُ تَكُوْنُ رَهْنًا مَكَانَهُ
If the damage is caused by someone else [other than the mortgagor], the mortgagor becomes the damager’s opponent [in court], and what the mortgagor receives as compensation is then used as the mortgage. 887
وَإِنْ جَنَى عَلَيْهِ غَيْرُهُ فَهُوَ الْخَصْمُ فِيْهِ، وَمَا قَبَضَ بِسَبَبِهِ، فَهُوَ رَهْنٌ وَإِنْ جَنَى الرَّهْنُ، فَالْمَجْنِيُّ عَلَيْهِ أَحَقُّ بِرَقَبَتِهِ، فَإِنْ فَدَاهُ، فَهُوَ رَهْنٌ بِحَالِهِ
When the debt becomes due and the mortgagor does not pay it off, the security is sold to settle the debt from its price. The remainder of its price goes to the mortgagor.
وَإِذَا حَلَّ الدَّيْنُ فَلَمْ يُوَفِّهِ الرَّاهِنُ، بِيْعَ، وَوُفِّـيَ الْحَقَّ مِنْ ثَمَنِهِ وَبَاقِيْهِ لِلرَّاهِنِ
886. That is, when a slave woman gave birth to the child of her master. As mentioned earlier, classical Islamic law was formulated when slavery was still practiced in Muslim (and non-Muslim) lands. It was permitted for a man to have sexual relations with this slave woman, though letting anyone else have sexual access to her was forbidden. When the master fathered a child with her, she became non-sellable. She would be called umm al-walad (mother of the child), and would stay with the master until his death, at which time she was freed – if the master had not already freed her. The Messenger of Allah (SA) encouraged people to educate, free, and marry their slave women:
“Three people will have their reward doubled. (One is) a man who owns a slave-girl whom he teaches well and instructs in manners/etiquette, and then he frees her and marries her. (Such a man) shall have two rewards…” (Ag – from Abu Moosâ)
ثَلَاثَةٌ يُؤْتَوْنَ أَجْرَهُمْ مَرَّتَيْنِ الرَّجُلُ تَكُونُ له الْأَمَةُ فَيُعَلِّمُهَا فَيُحْسِنُ تَعْلِيمَهَا وَيُؤَدِّبُهَا فَيُحْسِنُ أَدَبَهَا ثُمَّ يُعْتِقُهَا فَيَتَزَوَّجُهَا فَلَهُ أَجْرَانِ
887. For example, if the security was a car, and someone other than the mortgagee and mortgagor damaged it, the mortgagor will be the one to pursue compensation. After the mortgagor receives it, the compensation will stay with the mortgagee as part of the security.
If a condition of sale is a security or a guarantor of payment, and the buyer refuses to hand over the security, or the guarantor declines to guarantee the payment, then the seller is given the option either of annulling the sale or retaining it without a security or a guarantor of payment.
وَإِذَا شُرِطَ الرَّهْنُ أَوِ الضَّمِيْنُ فِيْ بَيْعٍ، فَأَبَى الرَّاهِنُ أَنْ يُسَلِّمَهُ، أَوْ أَبىَ الضَّمِيْنُ أَنْ يَضْمَنَ خُيِّرَ الْبَائِعُ بَيْنَ الْفَسْخِ أَوْ إِقَامَتِهِ بِلاَ رَهْنٍ وَلاَ ضَمِيْنٍ
Mortgaging & Security Deposits
( Page : no 79)