كتاب 36
36
Book 36
(36)
Chapter 36
(36)
باب 36
Muwatta Malik 1499
Yahya said that he heard Malik speak about someone who pledged
goods as security for a loan, and they perished with the broker. The
one who took out the loan confirmed its specification. They agreed on
the amount of the loan, but challenged each other about the value of
the pledge, the pledger saying that it had been worth twenty dinars,
whilst the broker said that it had been worth only ten, and that the
amount loaned on security was twenty dinars. Malik said, "It is said
to the one in whose hand the pledge is, 'describe it.' If he describes
it he is made to take an oath on it and then the people of experience
evaluate that description. If the value is more than what was loaned
on security for it, it is said to the broker, 'Return the rest of his
due to the pledger.' If the value is less than what was loaned on
security for it, the broker takes the rest of his due from the
pledger. If the value is the exact amount of the loan, the pledge is
compensated for by the loan."
Yahya said that he heard Malik
say, "What is done in our community about two men who have a dispute
about an amount of money loaned on the security of a pledge - the
pledger claiming that he pledged it for ten dinars and the broker
insisting that he took the pledge as security for twenty dinars, and
the pledge is clearly in the possession of the broker - is that the
broker is made to take an oath when the value of the pledge is fully
known. If the value of the pledge is exactly what he swore that he had
loaned on security for it, the broker takes the pledge as his right.
He is more entitled to take precedence with an oath since he has
possession of the pledge. If the owner of the pledge wants to give him
the amount which he swore that he was owed, he can take the pledge
back. If the pledge is worth less than the twenty dinars he loaned,
then it is said to the pledger, 'Either you give him what he has sworn
to and take your pledge back, or you swear to what you said you
pledged it for.' If the pledger takes the oath, then what the broker
has increased over the value of the pledge will become invalid. If the
pledger does not take an oath, he must pay what the broker swore to."
Malik said, "If a pledge given on security for a loan
perishes, and both parties deny each other's rights, with the broker
who is owed the loan saying that he gave twenty dinars, and the
pledger who owes the loan saying that he was given only ten, and with
the broker who is owed the loan saying the pledge was worth ten
dinars, and the broker who owes the loan saying it was worth twenty,
then the broker who is owed the loan is asked to describe the pledge.
If he describes it, he must take an oath on its description. Then
people with experience of it evaluate that description. If the value
of the pledge is estimated to be more than what the broker claims it
was, he takes an oath as to what he claimed, and the pledger is given
what is over from the value of the pledge. If its value is less than
what the broker claims of it, he is made to take an oath as to what he
claims is his. Then he demands settlement according to the actual
value of the pledge. The one who owes the loan is then made to take an
oath on the extra amount which remains owing against him to the
claimant after the price of the pledge is reached. That is because the
broker becomes a claimant against the pledger. If he takes an oath,
the rest of what the broker swore to of what he claimed above the
value of the pledge is invalidated. If he draws back, he is bound to
pay what remains due to the broker after the value of the pledge."
| Reference | : Muwatta Malik 1499 |
| In-book reference | : Book 36, Hadith 35677 |
| USC-MSA web (English) reference | : Book 7, Hadith 1499 |
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