Hadith 37335

Yahya said that he heard Malik speak about someone who pledgedgoods as security for a loan, and they perished with the broker. Theone who took out the loan confirmed its specification. They agreed onthe amount of the loan, but challenged each other about the value ofthe pledge, the pledger saying that it had been worth twenty dinars,whilst the broker said that it had been worth only ten, and that theamount loaned on security was twenty dinars. Malik said, "It is saidto the one in whose hand the pledge is, 'describe it.' If he describesit he is made to take an oath on it and then the people of experienceevaluate that description. If the value is more than what was loanedon security for it, it is said to the broker, 'Return the rest of hisdue to the pledger.' If the value is less than what was loaned onsecurity for it, the broker takes the rest of his due from thepledger. If the value is the exact amount of the loan, the pledge iscompensated for by the loan."Yahya said that he heard Maliksay, "What is done in our community about two men who have a disputeabout an amount of money loaned on the security of a pledge - thepledger claiming that he pledged it for ten dinars and the brokerinsisting that he took the pledge as security for twenty dinars, andthe pledge is clearly in the possession of the broker - is that thebroker is made to take an oath when the value of the pledge is fullyknown. If the value of the pledge is exactly what he swore that he hadloaned on security for it, the broker takes the pledge as his right.He is more entitled to take precedence with an oath since he haspossession of the pledge. If the owner of the pledge wants to give himthe amount which he swore that he was owed, he can take the pledgeback. 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 swornto and take your pledge back, or you swear to what you said youpledged it for.' If the pledger takes the oath, then what the brokerhas increased over the value of the pledge will become invalid. If thepledger does not take an oath, he must pay what the broker swore to."Malik said, "If a pledge given on security for a loanperishes, and both parties deny each other's rights, with the brokerwho is owed the loan saying that he gave twenty dinars, and thepledger who owes the loan saying that he was given only ten, and withthe broker who is owed the loan saying the pledge was worth tendinars, 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. Thenpeople with experience of it evaluate that description. If the valueof the pledge is estimated to be more than what the broker claims itwas, he takes an oath as to what he claimed, and the pledger is givenwhat is over from the value of the pledge. If its value is less thanwhat the broker claims of it, he is made to take an oath as to what heclaims is his. Then he demands settlement according to the actualvalue of the pledge. The one who owes the loan is then made to take anoath on the extra amount which remains owing against him to theclaimant after the price of the pledge is reached. That is because thebroker becomes a claimant against the pledger. If he takes an oath,the rest of what the broker swore to of what he claimed above thevalue of the pledge is invalidated. If he draws back, he is bound topay what remains due to the broker after the value of the pledge."