Registering in place of taking possession in official pledge - A comparative foundational juristic study.

Abstract

This study aims to demonstrate the legal authority of the registration system in official mortgages, and the extent to which this official registration serves as a valid Islamic legal substitute for physical possession (Qabd) in this type of mortgage. The research problem revolves around answering the question: Does documentation and registration in official land registries fulfill the Islamic legal meaning of possession (Qabd) and holding (Hiyazah) in official mortgages in a manner that dispenses with actual physical possession? Utilizing a scientific methodology, the findings reveal that the concept of possession in Islamic jurisprudence is based on customary practice ('Urf), and that possession in mortgages is intended for debt security (Tawthiq). Furthermore, registering the mortgaged property with the competent real estate registry office constitutes valid constructive possession (Qabd Hukmi), which achieves this objective and prevents the mortgagor from any disposition that undermines the Islamic purpose of the mortgage, ultimately demonstrating that official registration effectively substitutes physical possession, fully satisfying its legal meaning and intent.