عربي
25 ربيع الأول 1441  ,  22 تشرين الثاني 2019

Fatawaa


Fatwa Number : 3174

Subject : Ruling on Mortgaging a Commodity prior to Concluding the Contract

Classified : (Pledged Property (given as security

Fatwa Type : Search Fatawaa


Question :

Is it permissible to mortgage a commodity, as a security for funding, prior to concluding the Murabaha or Istisna` contract, knowing that an initial funding contract had been signed?


The Answer :

All perfect praise be to Allah, The Lord of The Worlds; and may His blessings and peace be upon our Prophet Mohammad and his companions.
In principle, affiliate contracts such as mortgage and Kafalah(a pledge to present a debtor to pay his/her debt) aren`t concluded before the main contract, as is the case with debt in commutative contracts and the interest-free loans. Al-Imam Anawawi said; "It is conditioned that the mortgaged object is a debt claimed from the mortgagee."{Minhajj Attalibeen, P.115}.
On their part, the Maliki jurists and some of the Hanbali jurists permitted mortgaging an object before concluding its contract, as stated in the book: {Ash-sharh As`sagheer, P.115}, "Mortgaging an object is permissible before claiming the debt from the mortgagee."
According to Ibn Qoudamah, there are three cases as far as mortgage is concerned:
First: It is conducted after concluding the sale contract; therefore, it becomes valid by consensus of the Muslim scholars.
Second: It is conducted along with the contract in which the debt is claimed. In this case, it is considered valid, and this is the view of Imam Malik and Al-Shafie`.
Third: The object is mortgaged before the conclusion of its contract. Here, the preponderant opinion of the Hanbali jurists is that it is invalid, and this is the view of Al-Shafie as well. Abu Al-Khattab decided that it is valid.{Al-Moghni by Ibn Qoudamah 4/246}. And Allah knows best.




Comments

 

Name *

E. mail Address *

Country

Comment Title *

Comment *

 
 

Warning: this window is not dedicated to receive religious questions, but to comment on topics published for the benefit of the site administrators—and not for publication. We are pleased to receive religious questions in the section "Send Your Question". So we apologize to readers for not answering any questions through this window of "Comments" for the sake of work organization. Thank you.