رہن سے انتفاع میں عرف کی رعایت

Abstract

'Rehan' mean to pledge a property (mal) under detention and suspension in consideration of a right available against its owner and which may be satisfied out of that property. It is merely a security against the loan. Majority of the Muslim jurists viewed that the pledged property assumes the status of trust in the hand of mortgagee. If pledged property is destroyed or lost without negligence of mortgagee then he will be 'amin' (trustee) and will remain entitled to his debt which was due on mortgager. Jurists of Hanafi school of thought opined that in this case the loan will be lapsed from mortgager. If the value of the pledge exceeds the amount of the debt, the excess is in this case considered as a trust for which the pledgee will not be held responsible for its destruction. Because he is responsible after taking the pledged property in his possession. And the responsibility of pledge extended to the amount of the debt owing to the pledge. In present day different types of loans are given by banks and traders. They required security against the loan or sale. For this purpose they get valuable goods or property as a mortgage. In this article different kinds of 'rehan' and 'buyu' (plural of bai which means sale) were mentioned. The main objective of this article is to show the authenticity of 'Urf ' in the source of classical and contemporary Islamic law. The special focus of the article is to explain the issues related to mortgager or mortgagee benefiting from pledge in the light of 'Urf' and the legitimacy of the topic according to the text of Qur'an and Sunnah as well as 'Ijma' and 'Qiyas'.