Al-Majallah al-Ahkam al-‘Adaliyyah
Book 5: Pledges

Introduction

Terms of Islamic Jurisprudence Relating to Pledges.

A pledge consists of setting aside property from which it is possible to obtain payment or satisfaction of some claim. Such property is then said to be pledged, or given in pledge.
The act of accepting property as a pledge is called taking on pledge.
The person who gives his property as security is called the pledgor.
The person who accepts property as security is called the pledgee.
The person with whom the pledgor and the pledgee deposit the pledge on trust is called the bailee.

A contract of pledge is concluded by the offer and acceptance of the pledgor and the pledgee. If the pledge is not transferred to the effective possession of the pledgee, however, such contract is incomplete and revocable. The pledgor may, therefore, denounce such contract before delivery of the pledge.
In a contract of pledge, offer and acceptance is made by words purporting to imply agreement, as where the pledgor states that he has given such and such property as for his debt to the pledgee, or similar words to that effect, and here the pledgee states that he has accepted such pledge or has assented thereto, or words indicating consent. It is not an essential condition that the word pledge should be mentioned.
Example: A person having purchased an article for so much, hands the vendor certain of his property, telling him to keep it until the price is paid. Such property is then validly given in pledge.

The pledgor and pledgee must be of sound mind. They need not have reached the age of puberty. Consequently, a minor of perfect understanding may be either pledgor or pledgee.
The subject matter of the pledge must be something which may be validly sold. Consequently, it must be in existence at the time of the contract, must have some specific value, and also be capable of delivery.
The property is respect of which the pledge is given must be capable of sustaining a claim in respect to such pledge. Consequently, a pledge may be taken in respect to property wrongfully appropriated. But a pledge taken is respect to property held on trust is invalid.

Things which are implicitly included in sale are also included in pledge. Thus, when a piece of land is pledged, all trees growing thereon, together with the fruits thereof and all plants and growing crops are included therein even though not explicitly mentioned.
A pledge may be exchanged for another pledge.
Example: A person who has pledged his watch for so many piastres may ask pledgee to take a sword instead of the watch and if the pledgee returns the watch and accepts the sword, such sword thereupon becomes the pledge for the debt in question.
The subject matter of the pledge may be increased by the pledgor after the conclusion of the contract. That is to say, a second piece of property may be added to the first after the contract relating thereto has been concluded, the first pledge remaining intact. The additional pledge is added to the pledge of the original contract, as though the original contract had been concluded with reference to the two pledges, both becoming one pledge for the debt as it stood at the time the pledge was increased.
The debt secured by the pledge may be validly increased in respect to the same pledge.
Example: A person pledges a watch worth two thousand piastres to secure a debt of one thousand piastres. If such person contracts a further loan from the creditor of five hundred piastres, the watch becomes a pledge for one thousand five hundred piastres.
Any increase arising out of the pledge is part of the original pledge.