Kafala and daman (guarantees)

Terms and definitions

The fiqh uses two words: daman for the guarantee of wealth, kafala for bringing a person. The Shafi'i school defines daman as the commitment of an established right in another's liability, or producing a secured asset or the body of the one whose presence is owed. Ibn Qudamah defines it as joining the guarantor's liability to the debtor's, the right resting on both; the kafala is the commitment of a sane person to bring the one on whom a wealth-right rests.

The types

• The guarantee of wealth: guaranteeing a valid debt or a usurped good; no dispute on its lawfulness.
• The guarantee of the person: committing to bring the debtor; allowed by the majority, with an isolated opinion of ash-Shafi'i against it. Those who allow it agree that if the guaranteed person disappears or dies, no punishment or retaliation falls on the guarantor: the personal guarantee never transfers bodily penalties (Ibn Batal, Ibn al-Munir). al-Ghazali sums up: it is valid for anyone who may owe attendance in court or whose bringing can be demanded.
• The guarantee of demand (Maliki addition): tracking the absent debtor and guiding the creditor to him, without bearing the debt.

The effects

When the guarantor pays, the right moves to him: he holds recourse against the debtor, this return being agreed; if the creditor gifts the debt to the guarantor or remits it to him, the guarantor may claim it from the debtor (a Hanafi discussion), while the remission (ibra) dissolves the guarantee itself. The guarantor recovers what he guaranteed or what he paid according to the two Hanafi positions: Ibn al-Humam holds recourse with what was actually paid, al-Kasani with what was guaranteed.

Practical note

Standing surety is a serious religious engagement: the guarantor's wealth becomes the first payer, and his recourse is a claim, never an automatic transfer of the debt's burden.