Example: A man deposits an item in trust with another person—say, one thousand riyals. Then, after making the deposit, he becomes concerned, so another man comes forward and says, “I guarantee the deposit for you.” This guarantee is not valid, because the original holder is not liable. But if he says, “I guarantee it for you should he transgress or be negligent,” this is valid, because in the event of transgression or negligence he becomes liable, and the guarantee is then valid.

This is derived from the condition we stipulated: namely, that the debt must be due or destined to become due. For that which is not guaranteed in every case is not due, and its owner has no entitlement to it.

Issue: If the guarantor pays the debt, may he recover it from the guaranteed party?

The answer is yes: he may recover it, because the latter is the original debtor. Clearly, the guarantor cannot be made to suffer a loss without being reimbursed. His right of recovery falls under one of three cases:

First: if he intends it as a voluntary gift, he may not recover it.

Second: if he intends to recover it, he may do so.

Third: if he pays it without the intention of recovering it, or of not recovering it, occurring to his mind, then according to the established school of law, he may not recover it. The correct view, however, is that he may recover it, because he undertook the obligation only as a subsidiary of the original obligation.

Accordingly, based on the preponderant view, he may recover it in two cases: when he intends recovery, and when he has no intention either way. He may not recover it if he intends it as a voluntary gift. According to the established school, he may recover it only when he intends recovery. The scholars said: “And likewise, every…”