15. Book of Suretyship (kafāla)

Suretyship is of two kinds: suretyship for the person and suretyship for property.

1. Suretyship for the person is valid, and its object is to bring the person guaranteed before the claimant. It is concluded when the surety says, “I stand surety for so-and-so’s person,” or “for his neck,” “his soul,” “his body,” “his head,” “for half of him,” or “for a third of him.” The same ruling applies if he says, “I guarantee him,” “He is on me,” “He is to me,” “I am his sponsor,” or “I am his guarantor.”

2. If the suretyship includes a condition that the person guaranteed be delivered at a particular time, the surety must produce him when the claimant demands him at that appointed time. Should he fail to do so, the judge incarcerates the surety until he produces the man. Once the surety brings him and hands him over in a place where the claimant can pursue his case, the surety is released from liability. If the surety undertook to deliver him in the judge’s court but instead produced him in the marketplace, he is discharged; if he produced him in the wilderness, he is not.

3. If the person guaranteed dies, the surety for the person is absolved. Yet if the surety stipulated, “Should I fail to bring him by such-and-such a time, I shall be liable for his debt, which amounts to one thousand,” and then does not produce him at that time, he becomes liable for the money while still remaining bound by the personal suretyship.

4. In the view of Abū Ḥanīfa, suretyship for the person does not apply in ḥudūd cases or in retributive penalties (qiṣāṣ). Abū Yūsuf and Muḥammad deem it permissible.

5. As for suretyship for property, it is permissible whether the amount guaranteed is specified or unspecified, provided it represents a valid debt. One may say, for example, “I stand surety for him for one thousand,” “for whatever he owes you,” or “for whatever entitlement will accrue to you from this sale.” In every such case, the creditor has the choice: he may claim from the original debtor, or from the surety, as he prefers.

6. Suretyship may also be made conditional, as when someone says, “If you sell to so-and-so, the liability is on me,” or, “Whatever loss you may suffer through him is on me.”