the verb hamala, yahmilu (“to carry”), whose verbal nouns are haml and hamāla. In customary juristic usage, however, their meanings differ. Hamāla means undertaking to discharge another person’s financial obligation while retaining the right to recover the amount from him. The terms kafāla, idhāna, za‘āma, and qabāla have the same meaning. Haml, by contrast, means undertaking to discharge another person’s financial obligation without recourse against him. The term damān (guarantee) can bear either meaning.

If a man guarantees another’s financial obligation when a sale is concluded or afterwards, or guarantees his dower obligation after the marriage contract has been concluded, this is construed as a guarantee with recourse unless he expressly states that he intended an undertaking without recourse. There is no disagreement on this point. If, however, he guarantees the husband’s dower obligation when the marriage contract is concluded—whether the husband is his son or an unrelated man—there is disagreement: is it construed as an undertaking without recourse unless he makes clear that he intended a guarantee with recourse, or as a guarantee with recourse unless he intends an undertaking without recourse? Mālik’s position in al-Mudawwana is that it is an undertaking without recourse unless he intends a guarantee with recourse. This is also Ibn Habīb’s position in the chapter on marriage in al-Wādiha, and Ibn al-Qāsim’s position as transmitted from him by Sahnūn in al-‘Utbiyya. ‘Īsā, however, transmitted from him, in a report outside al-‘Utbiyya, that it is a guarantee with recourse unless he intends an undertaking without recourse.

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If a man undertakes, without recourse, to pay another’s financial obligation when a sale is concluded, or his dower obligation when the marriage contract is concluded, this is binding upon him: it remains a liability chargeable against him and his property during his lifetime and after his death. There is disagreement, however, if he makes such an undertaking after the sale or marriage contract has been concluded. Asbagh transmitted from Ibn al-Qāsim that it binds him during his lifetime but lapses upon his death, like a gift of which possession has not been taken before the donor dies. Ibn Habīb also held this position in the chapter on marriage in al-Wādiha.

In its chapter on guarantees, however, Ibn al-Mājishūn said that it remains binding during his lifetime and after his death, just like a guarantee with recourse. He explained: “It is consideration for the creditor’s releasing his debtor from liability and relinquishing his claim against him. It is therefore as though he had said to him at the outset, ‘Give him such-and-such from your own wealth, and I shall owe you that amount,’ or, ‘Give him your garment, and I shall pay you its price.’” Ibn Habīb adopted this view here, contrary to the position he expressed in the chapter on marriage.