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Chapter twenty-four » Surety for the Appearance of a Debtor (Kafālah) → ← Chapter twenty-two » Security (Rahn)(1)

Chapter twenty-three » Suretyship (Ḍamān)

Ruling 2329. If a person wishes to act as guarantor (ḍāmin)(1) for paying off someone’s debt, it is valid (ṣaḥīḥ) only if he conveys to the creditor – by means of any words, even if they are not in Arabic, or actions – that he is acting as guarantor for paying him what he is owed. Furthermore, the creditor must convey his consent to this, but the consent of the debtor is not a condition [for the validity of the person to act as guarantor]. This transaction (muʿāmalah) is of two types:

1.
the guarantor transfers the debt (dayn) that was a liability on the debtor to himself. With this type of transaction, if the guarantor were to die before paying off the debt, then as is the case with other debts, the debt takes priority over inheritance (irth) [i.e. the debt would first need to be paid off before anything from his estate is inherited]. Usually, jurists (fuqahāʾ) intend this meaning when they discuss ‘suretyship’;
2. the guarantor is committed to paying off the debt but is not liable to do so. With this type of transaction, if he does not make a will (waṣiyyah), the debt is not to be paid from his estate after his death.

Ruling 2330. The guarantor and the creditor must be of the age of legal responsibility (bāligh), sane (ʿāqil), and no one must have compelled them [to enter into the suretyship agreement]. Furthermore, they must not be foolish with finances (safīh),(2) and the creditor must not have been proclaimed bankrupt (mufallas). However, these conditions do not apply to a debtor; for example, if a person acts as guarantor for paying off the debt of a child, an insane person, or someone who is foolish with finances, it is valid.

Ruling 2331. Whenever a person places a condition for himself to act as guarantor – for example, he says, ‘If the debtor does not pay back your loan (qarḍ), I will pay it’, then him acting as guarantor in the first type of suretyship mentioned in Ruling 2329 is problematic (maḥall al-ishkāl) [i.e. based on obligatory precaution (al-iḥtiyāṭ al-wājib), it is not valid].(3) However, there is no problem [in him acting as guarantor in] the second type mentioned in that ruling (masʾalah).

Ruling 2332. The person for whom an individual acts as guarantor must be in debt. Therefore, if a person wishes to acquire a loan from someone, one cannot act as guarantor for him until he acquires the loan. This condition does not apply to the second type of suretyship [mentioned in Ruling 2329].

Ruling 2333. A person can only act as guarantor if the creditor, debtor, and type of debt are in fact specified. Therefore, if two people are owed by someone and another person says, ‘I act as guarantor for paying the debt owed to one of you’, then him acting as guarantor in this case is invalid (bāṭil) as he did not specify whose debt he is acting as guarantor for. Also, if someone is owed by two people and another person says, ‘I act as guarantor for paying you the debt owed by one of them’, then him acting as guarantor here is invalid as well as he too did not specify whose debt he is acting as guarantor for. Similarly, if someone is owed, for example, a quantity of wheat (say, 10 kilograms) and a quantity of money (say, £10), and another person says, ‘I act as guarantor for one of the two items you are owed’ and does not specify whether he is acting as guarantor for the wheat or for the money, it is not valid.

Ruling 2334. If a person acts as guarantor for paying off someone’s debt without the debtor’s consent, he cannot claim anything from him.

Ruling 2335. If a person acts as guarantor for paying off someone’s debt with the debtor’s consent, he can claim the suretyship amount from him even before he has paid it. However, if he pays the creditor with a commodity that is different to the commodity owed by the debtor, he cannot claim anything that he gave from the debtor. For example, if the debtor owes 10 kilograms of wheat and the guarantor pays 10 kilograms of rice, the latter cannot claim rice from the debtor. However, if the debtor consents to rice being paid, then there is no problem.

Ruling 2336. If a creditor pardons the guarantor what he is owed, the guarantor cannot claim anything from the debtor. Similarly, if the creditor pardons some of it, he cannot claim that amount. However, if the creditor gifts (hibah) all or some of it, or calculates it as one-fifth tax (khums), alms tax (zakat), alms to the poor (ṣadaqah), or something similar, the guarantor can claim it from the debtor.

Ruling 2337. If a person acts as guarantor for paying off someone’s debt, he cannot revert from acting as guarantor.

Ruling 2338. The guarantor and the debtor cannot, based on obligatory precaution, stipulate a condition that permits them to annul the suretyship agreement whenever they wish.

Ruling 2339. If a person is able to pay off the debt owed to a creditor at the time of the suretyship agreement, even if he were to become poor (faqīr) afterwards, the creditor cannot rescind (faskh) the suretyship agreement and recover the debt from the original debtor. The same applies if he is unable to pay off the debt at that time but the creditor knows this and consents to him acting as guarantor nevertheless.

Ruling 2340. If a person is unable to pay off the debt owed to the creditor at the time of acting as guarantor and the creditor was not aware of this but now wishes to annul him being a guarantor, it is problematic [i.e. based on obligatory precaution, he cannot do this]. This is especially so if the guarantor acquires the ability to pay off the debt before the creditor becomes aware [that he is unable to pay off the debt].

(1) Sometimes, the guarantor in a suretyship is called the ‘surety’.

(2) Ruling 2091 provides further clarification of this term: it refers to someone who spends his wealth in futile tasks.

(3) As mentioned in Ruling 6, the term ‘problematic’ (maḥall al-ishkāl) amounts to saying that the ruling is based on obligatory precaution.
Chapter twenty-four » Surety for the Appearance of a Debtor (Kafālah) → ← Chapter twenty-two » Security (Rahn)(1)
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