The third opinion holds that the guarantor is responsible only to produce the person if he knows his whereabouts. In other words, he is not charged with producing him unless it is known that he is able to do so. If the claimant alleges that the guarantor knows the person’s location and the guarantor denies it, the burden of proof rests on the claimant.

They also say: the guarantor is not to be detained unless the whereabouts of the principal are known; only then is he required to bring him. Abū ʿUbayd al-Qāsim ibn Sallām reports this view in his legal compendium from a group of scholars and adopts it himself.

Mālik’s principal evidence is that the guarantor of appearance is deemed liable to the creditor, and therefore, if the principal absents himself, the guarantor must pay. They sometimes support this with what is narrated from Ibn ʿAbbās: “A man demanded that his debtor either pay what he owed or provide a guarantor. The debtor was unable, so he took the matter to the Prophet—peace and blessings be upon him—who stood surety for him and then paid the debt.” They argue that this constitutes liability in an unconditional suretyship.

The Iraqi jurists, by contrast, maintain that the guarantor is required only to produce what he guaranteed—namely, the person. Liability for the debt itself does not transfer to him unless he expressly stipulates it, for the Prophet—peace and blessings be upon him—said, “Believers are bound by their conditions.” His duty, therefore, is either to bring the person or, failing that, to be detained; the same applies in guaranteeing appearance.

The third group’s main argument is that the guarantor is obliged to produce the man only when production is feasible. In such a case he may be detained until he does so; but if it is known that production is impossible, he is not required to bring him, just as he is not required if the man has died. They add: if someone guarantees appearance and ends up paying the debt, he is better regarded as having been deceived than as having deceived.

If the guarantor explicitly stipulates that he is liable for appearance alone and not for the debt, Mālik states that no liability for the money attaches to him—and, as far as I know, there is no disagreement on this, for otherwise he would be held to the opposite of what he stipulated. Such is the ruling in guarantees of appearance.

As for financial suretyship, the jurists are unanimous that if the principal is insolvent or absent, the guarantor must pay. They differ, however, when both guarantor and principal are present and both are solvent. Al-Shāfiʿī, Abū Ḥanīfah and their companions, Sufyān al-Thawrī, al-Awzāʿī, Aḥmad, and Isḥāq all say that the creditor may proceed against whichever of the two he wishes—the guarantor or the principal. Mālik, in one of his two opinions, holds that the creditor may not turn to the guarantor so long as the principal is available; in another opinion, he concurs with the majority.