Chapter on the Rulings of Suretyship

Suretyship (kafālah) is the undertaking to present to the creditor the person who owes him a financial right.

Accordingly, the contract of suretyship concerns the body of the person guaranteed, not the body of one upon whom a ḥadd penalty is due, for suretyship is a means of securing the right, whereas the ḥadd penalties are built on the principle of averting doubt; thus no such security applies to them. Nor is it valid to guarantee the body of someone liable to qiṣāṣ, because retaliation can be exacted only from the actual offender, and it may not be taken from the guarantor if he fails to produce the offender.

For the guarantee to be valid, the guarantor’s consent is required, since no liability can initially attach to him without his approval.

The guarantor is released if the person guaranteed dies and cannot be produced, and he is likewise released when he delivers that person in person to the creditor at the appointed place and time, for he will then have fulfilled his obligation. However, if the person remains alive yet cannot be produced, or departs and sufficient time passes in which he could have been produced, the guarantor becomes answerable for the debt, in view of the general wording of the Prophet’s (peace and blessings be upon him) saying: