Book of Kafālah (Suretyship)
The jurists have differed with regard to its types, the point in time at which it may be undertaken, the legal consequences that flow from it, its conditions, the manner in which it becomes binding, and the subject-matter to which it attaches.
It is known by several names: kafālah (suretyship), ḥamālah, ḍamānah, and zaʿāmah.
Its kinds are two: suretyship for the person and suretyship for property.
- Suretyship for property
This form is established by the Sunnah and was unanimously accepted by the first generation of Muslims and by the jurists of the various regions. A few have reported that it is not binding, likening it to a mere promise; this view is anomalous. The prophetic tradition on which the majority relies is his statement, peace and blessings be upon him:
“Al-zaʿīm gharim—The guarantor is liable.”
- Suretyship for the person
Also called “ḍamān al-wajh” (guaranteeing someone’s appearance), the majority of the jurists of the regional centers deem it valid in the Law when it relates to a financial obligation. Al-Shāfiʿī in his later opinion, and Dāwūd, held that it is impermissible. Their proof is the Almighty’s words:
“God forbid that we should seize anyone except the one in whose possession we found our goods.” (Yūsuf 12:79)
They also argue that because it is a guarantee involving the person, it resembles suretyship in ḥudūd cases. Those who allow it cite the general sense of the Prophet’s saying—peace and blessings be upon him—“The guarantor is liable,” and they add that it serves a public interest and is reported from the earliest generation.
Legal consequences
The majority of those who accept personal suretyship agree that if the principal dies, nothing is due from the guarantor of appearance. Some, however, impose liability. Ibn al-Qāsim distinguishes between the principal’s dying while present and his dying in absentia: if he dies while present, the guarantor owes nothing; if he dies while absent, one looks at the distance between the two towns. Should the distance be such that the guarantor could have produced him within the period set for delivery—roughly two to three days—and he neglected to do so, he is liable; otherwise, he is not.
Where the principal is absent, scholars have three opinions concerning the guarantor of appearance:
- He must either produce the man or pay. This is the view of Mālik, his companions, and the people of Madinah.
- The guarantor is to be detained until he brings the man or it is known that he has died. This is the view of Abū Ḥanīfah and the scholars of Iraq.