Chapter on Suretyship (ḍamān)

A guarantor must possess legal capacity. A guarantee offered by a person under interdiction for bankruptcy is treated like his purchases, and—according to the sounder opinion—the guarantee of a slave given without his master’s permission is invalid, though it becomes valid once the master authorizes it. If the master designates the slave’s earnings or some other property for payment, the debt is met from that source. Otherwise, the sounder view is that, if the slave has been authorized to trade, liability attaches both to what he already holds and to whatever he earns after that authorization; if no such authorization exists, liability is limited to his future earnings.

According to the sounder view, the obligee (the one in whose favor the guarantee is made) must be identified, but his acceptance and consent are not required. The consent of the principal debtor is categorically unnecessary, and—on the sounder view—even knowing his identity is not required.

As for the debt guaranteed, it must already be established; the earlier teaching did, however, validate promising to cover a debt that will arise in the future. The relied-upon position also validates guaranteeing the indemnity for eviction (darak) after the purchaser has received the price—that is, the guarantor undertakes to refund the price if the item sold later proves to belong to someone else, or is defective, or deficient through short measure. The debt must be obligatory, not merely an installment of a manumission contract. According to the sounder opinion, it is likewise valid to guarantee the price during an option period.

Guaranteeing a stipulated reward (juʿl) is treated like pledging it. Under the later teaching the amount must be known, and, in that same teaching, remitting an unknown debt is invalid—except for the camels owed as blood-money; guaranteeing such camels is valid on the sounder view.

If someone says, “I guarantee whatever Zayd owes you, from one dirham up to ten,” the sounder opinion deems the guarantee valid and makes him liable for ten. I say: the sounder view fixes liability at nine. Allah knows best.

Section

The relied-upon position validates bodily suretyship (kafālat al-badan). Thus, if one assumes responsibility for producing the person of a debtor, knowledge of the debt’s amount is unnecessary, though the debt itself must be of a kind that can be validly guaranteed. The school also permits bodily suretyship for someone liable to a human-right penalty, such as retaliation (qiṣāṣ) or the ḥadd for slander, while it disallows it for ḥudūd that are Allah’s exclusive right.

It is valid to guarantee the body of a minor, an insane person, a detainee, an absentee, or even a deceased person—so that he may be produced and his likeness attested. If the place of surrender is specified, that specification is binding; otherwise, the place is the guarantor’s own locality, and the guarantor is discharged