by handing the debtor over at the designated place of surrender when no obstacle—such as a usurping occupier—prevents access, and by producing the debtor himself, who must declare, “I submit myself on the guarantor’s behalf.” Mere physical presence is not enough.
If the debtor disappears, the guarantor is not obliged to bring him back when his whereabouts are unknown; if his location is known, the guarantor must produce him and is granted the ordinary time needed for a round-trip journey. Should that period lapse and the debtor still not be produced, the guarantor is imprisoned. One opinion holds that if the debtor has travelled as far as the distance that permits shortening the prayer, production is not required; the sounder view, however, is that once the debtor has died and been buried the guarantor may not be pursued for the monetary claim. If, in the contract of bodily suretyship, it was stipulated that the guarantor would pay the debt should delivery fail, the suretyship is void; it is likewise invalid without the debtor’s own consent.
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A guarantee (ḍamān) or bodily suretyship (kafāla) requires wording that conveys commitment, such as, “I guarantee the debt he owes you,” “I take it on,” “I assume it,” “I guarantee his person,” or, with respect to money or to producing the person, “I am a guarantor (ḍāmin), a surety (kafīl), a sponsor (zaʿīm), or a pledger (ḥamīl).” If one merely says, “I will pay the money” or “I will bring the person,” that is no more than a promise.
The sounder opinion is that neither a financial guarantee nor bodily suretyship may be made conditional, nor may bodily suretyship be limited to a term; however, if the suretyship is divided and a one-month delay in production is stipulated, that is permissible. It is valid to guarantee an immediate debt on a deferred basis for a known period, and to guarantee a deferred debt as immediately payable—yet the guarantor need not hasten payment.
The obligee may claim either the guarantor or the principal debtor. The sounder view invalidates a guarantee that is conditioned on the principal’s discharge. If the obligee later releases the principal debtor, the guarantor is automatically released; the reverse is not true. If one of them dies, the debt falls due against the estate of the deceased alone.
When the obligee sues the guarantor, the latter may require the principal debtor to clear him by payment—provided the guarantee was given with the principal’s permission; the sounder view is that he may not demand this beforehand. The guarantor has recourse against the principal if he was authorized both to guarantee and to pay; if neither permission was given, he has no recourse. If he was authorized only to guarantee, the sounder opinion still allows recourse, whereas the converse is not allowed.
Should the guarantor pay in debased coin for sound coin, or settle a debt of one hundred by handing over a garment worth fifty, the sounder position is that he may recover only what he actually expended. Whoever pays another’s debt without guarantee or permission has no right of recourse; if he was authorized on the express condition that he may seek reimbursement, or was authorized unconditionally (according to the sounder view), he may seek it. The sounder opinion also states that composition in a commodity different from the debt’s original form does not bar recourse.
Both the guarantor and the voluntary payer may seek reimbursement only if they call witnesses to the payment: either one man, or one man together with two women, or—on the sounder view—one man who will then swear an oath with them. If no witnesses are produced, there is no right of recourse once the payment has been made.