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Yahya said that he heard Malik speak about two men who had a
pledge between them. One of them undertook to sell his pledge, and the
other one had asked him to wait a year for his due. He said, "If it is
possible to divide the pledge, and the due of the one who asked him to
wait will not be decreased, half the pledge which is between them is
sold for him and he is given his due. If it is feared that his right
will be decreased, all the pledge is sold, and the one who undertook
to sell his pledge is given his due from that. If the one who asked
him to wait for his due is pleased in himself, half of the price is
paid to the pledger. If not, the pledgee is made to take an oath that
he only asked him to wait so that he could transfer my pledge to me in
its form.' Then he is given his due immediately."
Muwatta Malik Book 36, Hadith 20
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Yahya said that he had heard Malik say, "The undisputed way of
doing things in our community concerning pledges is that in cases
where land or a house or an animal are known to have been destroyed
whilst in the possession of the broker of the pledge, and the
circumstances of the loss are known, the loss is against the pledger.
There is no deduction made from what is due to the broker at all. Any
pledge which perishes in the possession of the broker and the
circumstances of its loss are only known by his word, the loss is
against the broker and he is liable for its value. He is asked to
describe whatever was destroyed and then he is made to take an oath
about that description and what he loaned on security for it. "Then
people of discernment evaluate the description. If the pledge was
worth more than what the broker loaned, the pledger takes the extra.
If the assessed value of the pledge is less than what he was loaned,
the pledger is made to take an oath as to what the broker loaned and
he does not have to pay the extra which the broker loaned above the
assessed value of the pledge. If the pledger refuses to take an oath,
he has to give the broker the extra above the assessed value of the
pledge. If the broker says that he doesn't know the value of the
pledge, the pledger is made to take an oath on the description of the
pledge and that is his if he brings a matter which is not disapproved
of."
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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."