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According to Mālik’s school, a guarantee may be given on behalf of either a living or a deceased person. If someone guarantees a living person’s debt and pays it on his behalf, he may recover what he has paid from that person and retain his claim against him if he is insolvent, whether he gave the guarantee with or without his permission. If, however, he guarantees the debt of a deceased person whose estate cannot cover it, he may not recover what he has paid from any assets subsequently found to belong to the deceased. This differs from Abū Hanīfa’s position that someone who guarantees another person’s debt without his authorization may not recover from him what he pays on his behalf, and that guaranteeing a deceased person’s debt is invalid if he left insufficient assets to discharge it. His reasoning is that the debt has lapsed with the extinction of the deceased’s legal personality, and guaranteeing a lapsed debt is guaranteeing something already void, which serves no purpose.

The evidence supporting Mālik’s view—that a deceased person’s debt may validly be guaranteed even if he left insufficient assets to discharge it, and that the guarantor has no right of recovery against any assets subsequently found to belong to the deceased—is the report narrated by Jābir ibn ‘Abd Allāh:

“A man died owing a debt, and the Prophet, peace be upon him, would not offer the funeral prayer for him until Abū al-Yasar, or someone else, said, ‘I shall take responsibility for it, so offer the funeral prayer for him.’ The next day, the Prophet came to him and demanded payment. He replied, ‘It was only yesterday.’ He then came to him the following day, and he paid him. The Prophet said, ‘Now his skin has cooled.’”

Had guaranteeing his debt not been valid, the Prophet, peace and blessings be upon him, would not have offered the funeral prayer for him. And had the debt passed to the person who paid it on his behalf without being discharged from the original debtor, his skin would not have cooled upon its payment, since the debt would still have remained his liability. This is clear. Al-Tahāwī cited this hadith in support of Abū Hanīfa’s position that someone who pays another person’s debt without his authorization has no right to recover it from him. Yet the hadith lends stronger support to Mālik, because he applied it in its proper context and did not extend it to a living person.

It also supports Mālik against Abū Hanīfa in holding that a guarantee binds the guarantor without the creditor’s acceptance. It further establishes that a guarantee may validly be given without the debtor’s permission, that the guarantor is bound to meet the creditor’s demand under it, and that the debtor’s liability is not discharged merely because the guarantee becomes binding upon the guarantor, but only when he pays on the debtor’s behalf. This is indicated by the Messenger of Allah’s words, peace and blessings be upon him: “Now his skin has cooled.” Al-Tahāwī said: “If, then, the guarantee is binding upon the guarantor,