Chapter on Daman (financial guarantee) and Kafalah (personal surety)

Both forms are valid whether concluded outright, made conditional, or limited to a set period, provided the guarantor is someone whose gratuitous dispositions are legally effective. The creditor may pursue the guarantor and the principal debtor together, or either of them at his discretion. If, however, a person guarantees an immediately-due debt until a specified future date, the guarantee is valid but the guarantor cannot be sued until that date arrives.

One may validly guarantee: liability for the price and the sold item, property taken on approval, and any article whose liability is already established, such as usurped goods or a borrowed article.

A guarantee is not valid for property that carries no liability—like a deposited trust—or for the debt of a mukātaba (a slave’s manumission contract), nor for an unspecified fraction of a debt whose amount has not been determined.

If the guarantor pays the debtor’s liability with the intention of recourse against him, he may recover it, even if the debtor had not authorized either the guarantee or the payment. The same rule applies to anyone who settles another person’s obligatory debt.

When the debtor is discharged, his guarantor is likewise discharged, but not the other way around. If two people each say individually, “I have guaranteed the debt for you,” the creditor may claim the entire debt from each of them. If they say jointly, “We have guaranteed the debt for you,” liability between them is apportioned according to their respective shares.