Abū Thawr said: “Ḥamālah and kafālah are one and the same. Whoever guarantees another man’s debt becomes solely liable for it, and the original debtor is released; a single debt may not simultaneously rest upon two persons.” This was also the opinion of Ibn Abī Laylā and Ibn Shubruma.

Among the proofs cited by those who permit the creditor to claim from the guarantor—whether the principal is absent or present, wealthy or insolvent—is the ḥadīth of Qabīṣah ibn al-Mukhāriq. He relates: “I undertook a ḥamālah and came to the Prophet—peace and blessings be upon him—to ask him about it. He said, ‘We shall discharge it on your behalf out of the camels collected for charity, O Qabīṣah. Begging is permissible only in three cases,’ and he mentioned ‘a man who assumes another’s liability until he settles it.’” The point is that the Prophet—peace and blessings be upon him—allowed the guarantor to seek assistance without regard to the financial standing of the person for whom he had assumed liability.

As for the scope of suretyship, the majority of scholars restrict it to financial obligations, relying on the Prophet’s statement, “The guarantor is liable”—that is, whether the suretyship concerns property or the person’s appearance. It makes no difference whether the money involved arises from wealth claims or from penalties, such as the blood-money for accidental killing, compensation agreed upon for intentional homicide, or theft below the threshold that entails amputation, and the like. Abū Ḥanīfah is reported to have allowed suretyship in ḥudūd and qiṣāṣ, or in qiṣāṣ but not in ḥudūd—this is also the view of ʿUthmān al-Battī, referring to suretyship for the person.

With respect to the point in time when suretyship for property becomes obligatory—that is, when the creditor may demand a guarantor—the scholars unanimously agree that this is only after the claim has been established against the debtor, whether by his confession or by admissible evidence.

Regarding the time when suretyship for appearance becomes obligatory, the jurists disagreed. Some held that it is never required before the claim itself is proven; this is the position of the judge Shurayḥ, al-Shaʿbī, and Sahnūn among Mālik’s followers.

Others maintained that a guarantor for appearance may be taken in order to establish the claim, yet differed over when this becomes binding and for how long. Some said: if the claimant produces a strong presumption, such as a single witness, he must supply a guarantor for appearance until his right becomes evident. Otherwise, no guarantor is demanded unless he names evidence present in the city, in which case he is granted a sponsor for a period ranging from five days to the following Friday. This is the view of Ibn al-Qāsim, one of Mālik’s companions.

The scholars of Iraq said: No guarantor is taken before the claim is proven except when the claimant alleges evidence present in the town, similar to Ibn al-Qāsim’s position, but they limited the period to three days. They say: if the claimant presents a plausible indication, he must provide a guarantor until he substantiates his claim or it is dismissed. They rejected any distinction between a claimant whose evidence is present and one whose evidence is absent, declaring: a guarantor is required only on the basis of actual proof, pending verification of the claim’s truth or its invalidation.