Chapter on Suretyship (Kafala)

Introduction

Linguistically, kafala stems from the verb kafala, meaning “to assume responsibility.”

In juristic usage it is: a competent person’s voluntary commitment to bring before the creditor the person against whom a monetary claim is established.

A kafala is concluded with the same expressions used for a financial guarantee (daman), such as: “I am liable for his person,” or “I stand surety,” because kafala is a form of daman.

The legitimacy of kafala is proven by the Quran, the Sunnah, scholarly consensus, and analogical reasoning.

Allah the Exalted says, “I will never send him with you until you give me a solemn pledge in Allah’s name that you will surely bring him back to me unless you are surrounded (and prevented).” (Yusuf 12:66)

Abu Dawud and al-Tirmidhi narrated from Ibn Abbas that a man kept hold of his debtor until he paid what he owed or produced a guarantor, whereupon the Prophet ﷺ said, “I will stand surety for him.”

Several scholars have reported unanimous agreement on its permissibility, and people’s need to secure their rights calls for it.

Subject-Matter of Kafala

Kafala is valid only for a financial right, not for a purely bodily one. Thus it is permissible to undertake the delivery of anyone who possesses a liable object, such as a borrowed item, so that he may return it, or—if it has perished—pay its replacement. It is likewise permissible to undertake the delivery of a debtor’s person.

Kafala is therefore valid in these cases, because both the object and the debt constitute monetary rights.

By contrast, for rights that pertain exclusively to the body, kafala is invalid, since they cannot be fulfilled or enforced by anyone other than the very person on whom the obligation rests.