We are a group of citizens who have been given the opportunity to borrow from the real estate bank, and we want to sell our properties that the real estate bank has pledged as collateral, on the condition
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The questioner : We are a group of citizens who have been given the opportunity to borrow from the real estate bank, and we want to sell our properties that the real estate bank has pledged as collateral, on the condition that the buyer commits to paying off what we owe the bank. Is it permissible for us to proceed with the sale? And if it is not permissible, what is the way out or solution to this?
The Shaykh : It is permissible for you to dispose of them by selling them, on the condition that the officials of the Development Fund grant you permission. If they grant you permission, there is no blame on you. Or by another method, which is that you pay off the fund so that the property is released from the pledge. If the property is released from the pledge, there is nothing wrong with selling it at that time, because no one has a right to it. However, if the fund does not grant permission to dispose of it by sale, and you do not release its pledge by paying it off, then it is not permissible for you to sell it.
The questioner : Yes.
The Shaykh : First, because it is pledged, and the pledged item is occupied by the right of the pledgee, and it is not permissible to sell it, because that would be a cause for many problems, and the fund’s right might be lost through such a transaction.
Second, because Allah (Glorified and Exalted is He) commanded the fulfillment of contracts, and He said:[Al-Ma'idah 5:1] And He commanded the fulfillment of covenants, saying: [Al-Isra 17:34]. And you have concluded a contract with the fund, the implication of which is that you do not dispose of this pledge without its permission. Furthermore, in addition to that, the fund stipulated in the contract document, in one of its clauses, that the beneficiary does not dispose of it by sale or otherwise. This condition was accepted by the pledgor, the owner of the property, who signed it and committed to it. Therefore, he must fulfill what he committed to. Fulfilling the obligation to the fund, if you committed to it as a condition, and what is obligatory upon you by Islamic law, is an obligatory matter for you, because you will be questioned about it. As for the one who is lenient in this and sells it on the pretext that the majority of scholars hold that a pledge is not binding unless possession is taken, and that this property has not been taken into possession by the fund because it is in the hands of its owner, this leniency is questionable from two aspects.
The first aspect is that this pledgor has committed to a condition upon himself, which is that he does not dispose of it by sale or otherwise.
The questioner : Yes.
The Shaykh : He has committed to this. Even if we assume that this is not the implication of an absolute pledge if it is not taken into possession, this is a commitment to a condition that does not contradict the Book or the Sunnah. The Prophet (peace and blessings be upon him) said:Sunan Ibn Majah 2521Sahih (Darussalam)
The questioner : Yes.
The Shaykh : And in the hadith in the Sunan, it is well known:.
The second aspect is that the correct opinion in this issue is that a pledge is binding even without possession, because there is no evidence for the obligation of taking possession except the saying of Allah (Glorified and Exalted is He):[Al-Baqarah 2:283]. In reality, in this verse, Allah guides man to secure his right in such a situation, if he is traveling and does not find a writer or a way to secure his right in such a situation except by a pledged item taken into possession, because if he pledged something and did not take it into possession, the pledgor could deny that pledge, just as he could deny the original debt.
The questioner : Yes.
The Shaykh : And because it is possible to deny the original debt, Allah (Glorified and Exalted is He) guided to the pledged item taken into possession.
So there is no way to secure his right in such a situation except if the pledge is taken into possession.
Then, the end of the verse indicates that if it is not taken into possession, it is obligatory upon the one entrusted with it to fulfill his trust in it, because He said:[Al-Baqarah 2:283].
The questioner : Yes.
The Shaykh : And if that is the case, then the pledgee has trusted the pledgor by leaving it with him. If he has trusted him, then it is obligatory upon the pledgor to fulfill his trust and to fear his Lord, Allah.
Then, the practice of people among us is in accordance with this. The owner of the orchard borrows to improve his orchard, and his orchard is in his hand. The owner of the car pledges his car, which is in his hand, and he works with it and benefits from it.
The questioner : Yes.
The Shaykh : Likewise, the owner of the house pledges it to another while he is living in it. People consider this a binding pledge, and they hold that the pledgor cannot dispose of it by sale.
So the correct opinion in this issue is that a pledge is binding even if it is not taken into possession, as long as it is specified. This property for which he borrowed from the Development Fund is a specified, existing pledge. So the pledge in it is binding, even if it is in the hands of the pledgor.
The questioner : Yes.
The Shaykh : So it is not permissible for one who borrows from the Development Fund to sell the property for which he borrowed, except in one of the two previous cases: that he seeks permission from the officials of the bank and they grant it to him, or that he pays off the bank and releases the property from the pledge.
The questioner : Yes.
The Shaykh : And Allah is the One who grants success.
The questioner : May Allah reward you.
The Shaykh : It is permissible for you to dispose of them by selling them, on the condition that the officials of the Development Fund grant you permission. If they grant you permission, there is no blame on you. Or by another method, which is that you pay off the fund so that the property is released from the pledge. If the property is released from the pledge, there is nothing wrong with selling it at that time, because no one has a right to it. However, if the fund does not grant permission to dispose of it by sale, and you do not release its pledge by paying it off, then it is not permissible for you to sell it.
The questioner : Yes.
The Shaykh : First, because it is pledged, and the pledged item is occupied by the right of the pledgee, and it is not permissible to sell it, because that would be a cause for many problems, and the fund’s right might be lost through such a transaction.
Second, because Allah (Glorified and Exalted is He) commanded the fulfillment of contracts, and He said:
O you who have believed, fulfill [all] contracts.
يا أيها الذين ءامنوا أوفوا بالعقودAnd fulfill [every] commitment. Indeed, the commitment is ever [that about which one will be] questioned.
وأوفوا بالعهد إن العهد كان مسئولاًThe first aspect is that this pledgor has committed to a condition upon himself, which is that he does not dispose of it by sale or otherwise.
The questioner : Yes.
The Shaykh : He has committed to this. Even if we assume that this is not the implication of an absolute pledge if it is not taken into possession, this is a commitment to a condition that does not contradict the Book or the Sunnah. The Prophet (peace and blessings be upon him) said:
Every conditions that is not in the Book of Allah (SWT) is invalid
كل شرط ليس في كتاب الله فهو باطلThe questioner : Yes.
The Shaykh : And in the hadith in the Sunan, it is well known:
The Muslims are bound by their conditions, except a condition that makes the haram lawful or the halal forbidden.
المسلمون على شروطهم إلا شرطاً أحل حراماً أو حرم حلالاًThe second aspect is that the correct opinion in this issue is that a pledge is binding even without possession, because there is no evidence for the obligation of taking possession except the saying of Allah (Glorified and Exalted is He):
And if you are on a journey and cannot find a scribe, then a security deposit [should be] taken
وَإِنْ كُنْتُمْ عَلَى سَفَرٍ وَلَمْ تَجِدُوا كَاتِباً فَرِهَانٌ مَقْبُوضَةٌThe questioner : Yes.
The Shaykh : And because it is possible to deny the original debt, Allah (Glorified and Exalted is He) guided to the pledged item taken into possession.
So there is no way to secure his right in such a situation except if the pledge is taken into possession.
Then, the end of the verse indicates that if it is not taken into possession, it is obligatory upon the one entrusted with it to fulfill his trust in it, because He said:
then a security deposit [should be] taken. And if one of you entrusts another, then let him who is entrusted discharge his trust
فرهان مقبوضة فإن أمن بعضكم بعضاً فليؤدِ الذي اؤتمن أمانتهThe questioner : Yes.
The Shaykh : And if that is the case, then the pledgee has trusted the pledgor by leaving it with him. If he has trusted him, then it is obligatory upon the pledgor to fulfill his trust and to fear his Lord, Allah.
Then, the practice of people among us is in accordance with this. The owner of the orchard borrows to improve his orchard, and his orchard is in his hand. The owner of the car pledges his car, which is in his hand, and he works with it and benefits from it.
The questioner : Yes.
The Shaykh : Likewise, the owner of the house pledges it to another while he is living in it. People consider this a binding pledge, and they hold that the pledgor cannot dispose of it by sale.
So the correct opinion in this issue is that a pledge is binding even if it is not taken into possession, as long as it is specified. This property for which he borrowed from the Development Fund is a specified, existing pledge. So the pledge in it is binding, even if it is in the hands of the pledgor.
The questioner : Yes.
The Shaykh : So it is not permissible for one who borrows from the Development Fund to sell the property for which he borrowed, except in one of the two previous cases: that he seeks permission from the officials of the bank and they grant it to him, or that he pays off the bank and releases the property from the pledge.
The questioner : Yes.
The Shaykh : And Allah is the One who grants success.
The questioner : May Allah reward you.