2353. Mortgaging is defined as the act of placing a part of one’s property as a safety deposit, by a person who is under a financial obligation to another individual, so that in the event that he fails to pay off his obligation, the latter may claim his rights from that property. For example, a debtor may place a part of his property as a safety deposit, so that in the event that he fails to pay off the debt, the creditor may claim the debt from that deposit.
2354. Uttering a formal expression is not necessary in a mortgage. In fact, the mere act of placing a property in the possession of the creditor with the intention of a safety deposit, and the acceptance by the creditor with the same intention, will be sufficient for the mortgage to be in order.
2355. The mortgager and the mortgagee must both be sane and b¡ligh, and should not have been wrongfully compelled to it. In addition, the mortgager must not be bankrupt, nor feeble-minded, unless consent or permission is acquired from the creditors of the bankrupt individual, or the guardian of the feeble-minded person. The definition for persons who are feeble-minded and persons who are bankrupt was elaborated in article 2306.
2356. A person may only mortgage the property that he is permitted to dispose of by the shari’a. However, if he mortgages another person’s property upon acquiring his permission or consent, it will be in order.
2357. One should be able to recover his debt from the mortgaged item even if it is not owned (by the mortgager), such as a land that is the subject of one’s right of fencing. Therefore, if a person mortgages wine or any similar item, the mortgage will be void.
2358. The profits derived from the mortgaged item belong to its owner. The term owner—as it pertains to these articles—is a term more general than one who possesses rights over it.
2359. The mortgagee may not dispose of the mortgage without its owner’s permission. Similarly, the owner of the mortgage may not dispose of it in a manner that would violate the right of the mortgagee, without his permission.
2360. A group of jurisprudents (may the Lord raise their status) have stated that if the creditor sells the mortgaged item with the permission of the debtor, then the payment acquired in its sale will also—like the original property—be considered as the mortgage. The same will apply (according to the jurisprudents) if the creditor sells it without the permission of the debtor, but the latter consents to it later on. However, such a view is problematic, unless it is stipulated with a contract, even if it be the within the same sale, that the debtor will place the received payment as mortgage. In this case, it becomes obligatory on him to fulfill the condition. The same will apply if it is stipulated that the payment would be mortgaged, in which case the payment is automatically mortgaged by virtue of the condition.
2361. When the moment of repaying the debt arrives, and the creditor demands it, but the debtor fails to pay it, then in the event that the creditor is deputized to sell and claim his debt, he may sell the mortgaged item and recover his debt. In the event that he is not deputized as such, he should seek the permission of the debtor. In the event that he is unable to contact him, he should seek permission from the hakim. In the event that this is not possible either, he should seek permission from just individuals amongst the believers. In any case, should he acquire more than his debt (from the sale), he must return the extra to the debtor.
2362. If the debtor possesses nothing but a house that is suitable for his status, and he resides therein, and some household furniture and other basic necessities, the creditor cannot demand his debt from the debtor. However, the creditor may sell a mortgaged item, even if it be a house and household furniture, and recover his debt through their sale.
