Islamic Fiqh > Financial transactions > Kafala and daman (guarantees) > Kafala by the body of someone liable to a legal punishment (hud) or retribution (qisas)
Contents
Updated on 26 September 2026 at 7:12 PM
This part belongs to the full section: All sections of this part.
This page concludes the study of kafala (guarantee) and daman in the fiqh encyclopedia al-Mawsua al-fiqhiyya. Seventeen sheets are faithfully translated here: guarantee by the body of a condemned person, the conditions of the daman formula, the guarantor's recourse against the guaranteed person, the fate of the deceased's debt, offsetting (muqassa), transfer of debt (hawala), and the question of remuneration of the guarantor. The positions of the four schools are reported with their classical references in parentheses, and the hadiths with their takhrij.
As for kafala by the hud or the qisas themselves, it is not valid by consensus, because it cannot be exacted from the guarantor (Hashiyat Ibn Abidin 5/298, al-Mabsut 9/106, Tabyin al-Haqa'iq 4/152, Kashf al-Qina' 3/376).
Imam al-Sarakhsi (may Allah have mercy on him) said: there is no disagreement that kafala by the hud and the qisas themselves is not valid, because substitution (niyaba) does not apply to their execution, and the purpose of kafala is that the guarantor stand in the place of the guaranteed person in execution. This is not realized in any of the punishments, so kafala is not valid by them (al-Mabsut 9/106).
Al-Marghinani said in al-Hidaya: "any right that cannot be exacted from the guarantor: kafala is not valid by it, such as the hud and qisas." This means: by the hud itself, not by the person upon whom the hud falls. Kafala by the hud itself is not permitted, whereas kafala by the person of the one liable to the hud is permitted, for kafala by surrendering the person at the judge's door is obligatory; punishments admit no substitution, the purpose being deterrence, which is not achieved by a substitute (al-Hidaya Sharh al-Bidaya 3/92, Fath al-Qadir 7/197, Majma' al-Damanat 592).
Ibn al-Humam said: any right that cannot be exacted from the guarantor, kafala is not valid by it, such as the hud themselves and the qisas itself; for the guarantor is not killed in place of the guaranteed person, nor is he flogged (Sharh Fath al-Qadir 7/197).
The question here concerns kafala consisting in bringing the body of the one liable to a hud or qisas, and the scholars have differed on it in four opinions.
First opinion: it is not valid in absolute terms, whether it is a right of Allah or a right of a human being. This is the view of Ibn al-Qasim among the Malikis (al-Mudawwana 5/277) and of some Shafi'is (Rawdat al-Talibin 4/253), and it is the madhhab of the Hanbalis (al-Mughni 6/344, Kashf al-Qina' 3/376, al-Insaf 8/404, al-Furu' of Ibn Muflih 6/403, Sharh Muntaha al-Iradat 2/253).
It is reported in al-Mudawwana al-kubra: Sahnun said: I asked Ibn al-Qasim: as for the hud, is there kafala in them? He replied: there is no kafala in the hud. I said: what do you think if a man insulted me without slandering me, and I took from him a guarantor of his person, then the man fled? He said: this is only decorum; kafala is not permitted in this, and I heard nothing from Malik about it, except that here is my opinion: no kafala in the hud nor in the ta'zir (al-Mudawwana 5/277).
Ibn Qudama said: kafala by the body of the one upon whom a hud falls is not valid, whether it is a right of Allah, such as the hud of fornication and theft, or a right of a human being, such as the hud of slander and qisas. This is the view of most people of knowledge, among them Shurayh and al-Hasan, and Ishaq, Abu Ubayd, Abu Thawr and the partisans of opinion followed it (al-Mughni 6/344). It is said in al-Insaf: it is not valid by the body of the one liable to a hud or qisas; this is the madhhab, and upon it are the companions (al-Insaf 5/210).
They argued by the hadith: "There is no kafala in a legal punishment." This hadith is weak: it was narrated by Ibn 'Adi in al-Kamil (5/22), al-Bayhaqi in al-Kubra (6/77), al-Khatib in Tarikh Baghdad (2/153) and Ibn 'Asakir in Tarikh Dimashq (20/138), through Buqayya ibn al-Walid, from 'Umar ibn Abi 'Umar al-Kala'i al-Dimashqi, from 'Amr ibn Shu'ayb, from his father, from his grandfather, raised to the rank of prophetic statement. Al-Bayhaqi said: Buqayya alone reported it from this unknown man, one of his unknown shaykhs, whose narrations are munkar; Imam Ahmad said, as recorded in Tahdhib al-Kamal: what Buqayya narrates from unknown men must not be written down; al-Hafiz said in al-Taqrib: weak, one of Buqayya's unknown shaykhs; Ibn 'Adi said: he is unknown, I know of no one but Buqayya who narrates from him, and his narrations are munkar and not memorized; and al-Hafiz Ibn Hajar weakened it in Bulugh al-Maram (827), saying: narrated by al-Bayhaqi with a weak chain. Al-Bayhaqi also said in al-Sunan al-Sughra (5/337): this is a weak chain.
Ibn Qudama said: "because it is a hud," that is, kafala itself, in absolute terms, a right of Allah or a right of a human being, whether by guaranteeing the hud itself and the person liable to it, or by bringing the body of the author of the hud, is not valid. Then he said: kafala is an act of confidence (istithqaq), and the hud are built upon abandonment and warding off by doubts, so confidence does not enter into them. And because the hud is a right that cannot be exacted from the guarantor if he becomes unable to bring the guaranteed person, kafala by the one upon whom, for example, the hud of fornication falls is not valid (al-Mughni 6/345).
Second opinion: it is not valid by the body of the one liable to a punishment due to Allah, and it is valid for a punishment due to a human being; this is the sound position among the Shafi'is (Rawdat al-Talibin 4/253, Hashiyat al-Jamal 3/383, Mughni al-Muhtaj 3/170). Al-Nawawi said: if the kafala is for a human being, such as qisas and the hud of slander, the kafala is valid according to the apparent. It has been said: it is never valid; and if it is a hud for Allah, it is not valid according to the madhhab (Rawdat al-Talibin 4/253).
Ibn Qudama said in al-Mughni: al-Shafi'i declared that kafala by the body of the one liable to a hud among the hud of Allah is not valid, and his view differed regarding the hud of a human being: he said in one place that kafala is not valid in the hud of a human being nor in the li'an, and in another place that it is valid for the one liable to a right or a hud, for it is a right of a human being, so kafala is valid as with the other rights of human beings (al-Mughni 6/345).
They argued as follows: if the punishment belongs to the hud of Allah, kafala is not valid, for we are commanded to cover these punishments and to seek to ward them off by doubts as much as possible; unlike the punishment due to a human being, which is an acquired right, akin to property (Hashiyat al-Jamal 3/383, Mughni al-Muhtaj 3/170, Sharh al-Wajiz 10/373).
Third opinion: it is not valid for the exclusive rights of Allah, whether the victim agrees to accept the guarantor or not; as for qisas, the hud of slander and theft, a distinction applies: if the victim agrees, kafala is valid, otherwise the guarantor is not compelled. This is the Hanafi madhhab (Bada'i' al-Sana'i' 7/371, Fath al-Qadir 7/178, Hashiyat Ibn Abidin 5/432, Tabyin al-Haqa'iq 4/152-153).
Ibn al-Humam said: kafala by the person, in the hud and qisas, is not valid according to Abu Hanifa, meaning it is not imposed: he is not compelled to provide the guarantor. Abu Yusuf and Muhammad said: he is compelled in the hud of slander, for it contains a right of the servant, and in qisas, for it is purely a right of the servant: confidence suits them, as in ta'zir, unlike the hud exclusive to Allah. Abu Hanifa relied on the Prophet's statement: "There is no kafala in a legal punishment," without distinction; and because everything is based on warding off, confidence is not required there, as in ta'zir (Fath al-Qadir 7/177-178, al-Jawhara al-Nayyira 3/208, al-Bahr al-Ra'iq 8/544, al-Hidaya Sharh al-Bidaya 3/89).
As for the validity of kafala in qisas and its kind when the victim agrees to accept the guarantor, it is because it is a kafala by undertaking at the charge of the original debtor, whose execution can be exacted from the guarantor, so it is valid.
Al-Kasani said: kafala by the person of the one liable to qisas upon his life or below it, and by the hud of slander and theft, if the person sought offers them by giving a guarantor, is valid without disagreement among our companions, and this is the sound view; for it is a kafala by undertaking at the charge of the original debtor, whose execution can be exacted from the guarantor, like kafala by surrendering the person of the one who owes a debt (Bada'i' al-Sana'i' 7/371).
Ibn al-Humam said: if the soul of the person sought, that is the person sought, is generous in giving a guarantor without compulsion, this is permitted in the hud of slander, for one can order its cause therein, which is surrender of the person; surrender of the person being obligatory there, the guarantor can exact it, and the discharge is realized (Fath al-Qadir 7/178, al-Hidaya Sharh al-Bidaya 3/89).
Fourth opinion: it is valid in absolute terms, whether it is a right of Allah or a right of a human being.
It is also a condition that the makful bihi (the guaranteed person) be designated: saying "I guaranteed the body of one of these two" is not valid; this is the view of the Shafi'is and the sound position among the Hanbalis (Rawdat al-Talibin 4/254, al-Insaf 5/210). Al-Nawawi said: it is a condition that the makful bihi, by his body, be designated; if one says "I guaranteed the body of one of these two," it is not valid, as when one guarantees one of the two debts (Rawdat al-Talibin 4/254). And it is said in al-Insaf: kafala by an undesignated person, such as "one of these two," is not valid; this is the madhhab, and most of the companions follow it (al-Insaf 5/210).
This is by analogy with the condition of designating the debt in daman: "I guaranteed one of these two debts" is not valid (al-Insaf 5/196); likewise "I guaranteed one of these two men" is not valid.
Second opinion: it is not required that the makful bihi be designated; this is a view of the Hanbalis (al-Insaf 5/210, al-Furu' of Ibn Muflih 6/402), for kafala is a gratuitous act (tabarru'), so it resembles a loan for use (i'ara) and permission (al-Insaf 5/210).
Fourth condition of the makful bihi: his consent. That is: is the consent of the makful bihi required or not? The scholars have differed in two opinions. This difference rests on the question whether the guarantor is liable for the property owed by the makful bihi or not.
First opinion: his consent is not required; this is the view of the Shafi'is (Mughni al-Muhtaj 3/173) and the sound position among the Hanbalis (al-Mughni 6/350, al-Rawd al-Murbi' 6/455, al-Insaf 8/411), for the guarantor is liable for the property owed by the makful bihi if he is unable to bring him (Mughni al-Muhtaj 3/173). And by analogy with the makfun 'anhu (the guaranteed debtor), his consent is not taken into account (al-Mughni 6/350).
Second opinion: his consent is required; this is the sound position among the Shafi'is (Rawdat al-Talibin 4/259, Mughni al-Muhtaj 2/205) and a view among the Hanbalis (al-Mughni 6/350, al-Insaf 8/411), for the guarantor is not liable for the property owed by the makful bihi if he is unable to bring him. Kafala therefore has no benefit except with the presence of the makful bihi, who is not obliged to be present with the guarantor without his consent: his consent is thus a condition of the validity of the kafala (Mughni al-Muhtaj 3/173).
The fuqaha require in the formula of daman an expression indicating the guarantor's commitment, explicitly or by allusion, for consent is only known thereby (Hashiyat al-Sawi 'ala al-Sharh al-Saghir 3/273, Rawdat al-Talibin 4/260, Hashiyat al-Jamal 3/386, al-Insaf 8/366).
Explicit formulas are, for example: "ana kafil" (I am a guarantor), "ana damin" (I stand surety), "ana za'im" (I answer for him), "ana hamil" (I bear it), "ana qabil" (I accept him as guarantee), "takaffaltu bi-badani so-and-so" (I guaranteed the body of so-and-so) (Bada'i' al-Sana'i' 7/356), and "ana damin laka your debt upon so-and-so" (I guarantee to you your debt upon so-and-so).
Al-Kasani the Hanafi said: the formula of kafala and daman is explicit, likewise the za'ama in the sense of kafala and the gharama in the sense of daman; the Prophet (peace and blessings of Allah be upon him) said: "The one who answers for a thing is liable for it," meaning the guarantor is bound. The qubala in the sense of kafala likewise: one says "qabiltu bihi" ("I accepted him as guarantee"), "taqabbaltu bihi" ("I took charge of him"), that is, I guaranteed him. And Allah said:
"or that you bring Allah and the angels as sureties"
Surat al-Isra, 92
that is, guarantors who answer for what he says. And the hamil is in the sense of mahmul (that which is borne), the fa'il in the sense of maf'ul, like qatil in the sense of maqtul; this indicates the undertaking of the daman (Bada'i' al-Sana'i' 7/356).
There are words concerning whose import scholars have differed: "alayya" (it is upon me), "ilayya" (it is toward me), "qibli" (before me), "'indi" (with me). Those who judge them allusive require the existence of an intention or a context indicating commitment (Hashiyat al-Jamal 3/386); others judge them explicit.
Al-Kasani said: "alayya" is a word of commitment, likewise "ilayya". The Messenger of Allah said:
"Whoever leaves property, it goes to his heirs; whoever leaves a debt, it is upon me and toward me"Narrated by Muslim (2/591), hadith no. 867, in the chapter on lightening the prayer and the sermon
As for "qibli," it indicates the qubala, which is kafala. As for "'indi," although it is generally used for the deposit, it becomes kafala by the context of the debt; for "'indi" can refer to the hand (possession) or the dhamma (the guarantee), being a word of nearness and presence, both of which are realized therein. In the absence of context, it is interpreted as the hand, for that is the closer; with the context of the debt, it is interpreted as the dhamma, that is, "upon my guarantee," for only the dhamma can bear a debt (Bada'i' al-Sana'i' 7/356).
Any other formula not indicating commitment in reality or by custom does not make the kafala valid, such as saying "I will settle what is upon him" or "I will bring the person," without context: this is not a daman, but a formula of promise (wa'd), which does not count as indicating commitment among the Shafi'is (Rawdat al-Talibin 4/260, Hashiyat al-Jamal 3/386) and the Hanbalis (Kashf al-Qina' 3/363, Sharh Muntaha al-Iradat 2/246, Matalib Uli al-Nuha 3/295).
Shaykh al-Islam Ibn Taymiyya said: the qiyas of the madhhab is valid by any formula from which the daman is understood by custom, such as "marry her and I will settle the mahr," or "sell it and I will give you the price," or "leave him and do not claim from him, I will give you," and the like (al-Ikhtiyarat al-'ilmiyya p. 195, al-Fatawa al-Kubra 4/477, al-Insaf 8/366, Matalib Uli al-Nuha 3/295, Kashf al-Qina' 3/393).
The question is whether the daman of the mute person by a sign understood from him is valid. First, the ruling on the daman of the mute whose sign is not understood: al-Nawawi said: as for the mute, if he has neither a understood sign nor writing, we do not know that he guaranteed, until we verify or nullify (Rawdat al-Talibin 4/241). As for the mute whose sign is understood, the scholars have differed in two opinions.
First opinion: his daman is valid; this is the view of the Malikis (al-Mudawwana 5/277) and the Hanbalis (al-Mughni 6/323, al-Insaf 5/195, Hashiyat al-Rawd al-Murbi' 6/327, Kashf al-Qina' 3/364), and it is the sound position among the Shafi'is (Rawdat al-Talibin 4/241).
It is reported in al-Mudawwana, in the chapter on the kafala of the mute: Sahnun said to Ibn al-Qasim: is the kafala of the mute permitted according to the statement of Malik or not? He said: I cannot stand on a memorized statement of Malik, except what reached us from him: what the evidence establishes that the mute understood from his divorce or his purchase, that is permitted for him; and likewise your question (al-Mudawwana 5/277). Al-Nawawi said: as for the mute, if he has a understood sign, his daman is valid (Rawdat al-Talibin 4/241). And it is said in al-Insaf: the daman of the mute is valid if he has a understood sign (al-Insaf 5/195).
They argued the validity of the daman of the mute when his sign is understood by the fact that his sale, his acknowledgment and his donation are valid, so his daman is likewise valid, like that of the one who speaks (al-Mughni 6/323).
Second opinion: the daman of the mute is not valid, even if his sign is understood; this is a view of the Shafi'is (Rawdat al-Talibin 4/241), for there is no necessity, unlike the other dispositions (Rawdat al-Talibin 4/241).
The guarantee of identification is this: a man comes to borrow from a person, and he is told "I do not know you, so I will not give you," then another man comes and says "I guarantee that you will come to know him" (Sharh Muntaha al-Iradat 2/130). The scholars have differed on its validity in two opinions.
First opinion, that of the Hanafis: kafala is not valid by the mere guarantee of identification, without the guarantee of bringing him. If the guarantor says "I guarantee that you will come to know him without bringing him," it is void, for what generates kafala is the surrender, not identification. Likewise if the guarantor says "I guarantee that you will meet," it is void, for the meeting is the act of both of them, and a person does not guarantee the act of another (al-Mabsut 19/172, Hashiyat Ibn Abidin 5/421, Ikhtilaf al-Fuqaha' 1/235, Fath al-Qadir 7/167, Bada'i' al-Sana'i' 7/369, Tabyin al-Haqa'iq 4/148, al-Fatawa al-Hindiyya 3/256).
Second opinion, that of the Hanbalis: the guarantee of identification is valid. If the guarantor says "I guarantee that you will come to know him," the daman is valid and it is enforced against him; it is as if he said "I guarantee his presence whenever you wish," for you do not know him (al-Insaf 8/421, Kashf al-Qina' 3/375, Sharh Muntaha al-Iradat 2/130, Matalib Uli al-Nuha 3/315).
There is no disagreement between Hanafis and Hanbalis: they agree on the commitment to bring the person sought and surrender him; if he does not surrender him during his lifetime, what lies upon the guarantor becomes obligatory. It is reported in Kashf al-Qina' of al-Buhuti: the shaykh al-Taqi said in the commentary of al-Muharrar: the guarantee of identification means: I make known to you who he is and where he is from. Ibn 'Aqil said: Ahmad made the guarantee of identification a pledge of trust for the one who holds the property; it is as if he said: "I guarantee his presence whenever you wish, for it is you who does not know him and you cannot bring the one you do not know; as for me, I know him and I bring him to you whenever you wish"; this amounts to "I guaranteed his body." The guarantor of identification is thus required to bring the person sought; if he is unable to bring him, what lies upon him becomes obligatory toward the one whose identification he guaranteed (Kashf al-Qina' 3/375).
The scholars have differed in four opinions on the daman when the formula is suspended on a condition.
The proponents of the distinction rely on what Imam al-Kasani said: kafala contains a sense of appropriation, and the default rule is that suspending it on a condition is not permitted, except a condition whose suspension is tied to the right's appearing or sought in general, which then suits the contract and is thus permitted. He also said: kafala is permitted by custom, and custom applies to this kind of condition (Bada'i' al-Sana'i' 7/309, al-Ikhtiyar 2/171).
Such as: "when the beginning of the month arrives, I guaranteed," "I am guarantor until such a month," "I am guarantor until the harvest and the vintage" (Manar al-Sabil 1/415, Rawdat al-Talibin 4/260).
The Hanafis affirmed the validity of relating the formula to a term. Imam al-Kasani gave the reason: the formula is related to the cause of the daman, even though the daman is not established immediately; kafala, although it contains a sense of appropriation, is not pure appropriation, so it can admit the addition of a term (Bada'i' al-Sana'i' 7/363).
The Shafi'is affirmed that deferral (ta'jil) of the kafala is not valid; only deferring the bringing of the person to a known term is valid with them, such as a month or a year (Mughni al-Muhtaj 3/175). If the bringing is made conditional upon an unknown term, such as the harvest, the validity of the kafala falls under two opinions, the firmer being prohibition (Rawdat al-Talibin 4/260).
Al-Kasani said concerning deferral to an unknown term: if the term resembles the terms of people, such as the harvest, the vintage and Nawruz, guaranteeing until these terms is permitted among our companions, and not permitted according to al-Shafi'i, whose argument is that this is a contract upon an unknown term, therefore not valid, like sale. He replied: this is not a grave ignorance that kafala would bear; ignorance does not prevent the validity of the contract in itself, it only leads to dispute over precedence or delay; and ignorance of precedence or delay does not lead to dispute in kafala, for leniency is exercised in taking the right from the original debtor, unlike sale. And kafala is permitted by custom, and kafala until these terms is customary. If the kafala is immediate and then deferred to these terms, it is also permitted, for what we mentioned. If the term does not resemble the terms of people, such as the coming of rain or the blowing of the wind, the term is void and the kafala remains valid, for this is a grave ignorance that kafala does not bear: the deferral is thus not valid and falls away, and the kafala remains valid (Bada'i' al-Sana'i' 7/358, Tabyin al-Haqa'iq 4/154, Majma' al-Damanat 595, al-Fatawa al-Hindiyya 3/278).
As for the Hanbalis, Ibn Qudama said: if he guarantees until an unknown term, the kafala is not valid, as al-Shafi'i said, for there is no moment at which he can be demanded; and likewise the daman. If he relates it to the harvest, the threshing and the stipend ('ata'), it departs from the two opinions, like the term in sale, and its validity is preferable here; for it is a gratuitous act without compensation, to which a term is given that does not prevent its purpose, so it is valid, like the nadhr; and thus every unknown term that does not prevent the purpose of the kafala (al-Mughni 6/348).
As for Imam Malik, it is reported in al-Mudawwana of Sahnun: I asked Ibn al-Qasim: what do you think if one says "I guarantee what you are owed by so-and-so until the receipt of the stipend"? He replied: I asked Malik about the one who sells until the stipend; he said once that it was permitted, for the stipend was known, then it changed and is no longer known, and this does not please me; then I later heard him say about it: it is a facility for people and it is not permitted, it would astonish me that it be known. As for taking charge of the person, there is no objection (al-Mudawwana al-kubra 5/283).
When the formula is related to a known term, the four schools affirmed its validity (Bada'i' al-Sana'i' 7/357, Mughni al-Muhtaj 3/175, Sharh al-Minhaj 3/387, Tabyin al-Haqa'iq 4/154, al-Mughni 6/348, Tuhfat al-'Ulama' 3/240).
1. The stipulation of the option (khiyar): does a khiyar enter into the daman and the kafala? Ibn Qudama said: the khiyar enters neither the daman nor the kafala, for the khiyar was instituted so that one may know where a share (hazz) lies, and the guarantor knows for certain that there is no share for him. And because it is a contract that does not require acceptance, no khiyar entered it, like the nadhr; thus said Abu Hanifa and al-Shafi'i, and we know of no one who disagreed with them.
If the khiyar is stipulated therein, al-Qadi said: I hold that the kafala is annulled; this is the madhhab of al-Shafi'i, for it is a condition over what contradicts the kafala's requirement, so it is corrupted, as if one stipulated not to settle what lies upon the makful bihi. This is because the requirement of the daman and kafala is the assumption of liability, and the khiyar contradicts it. It is possible that the condition is annulled and the kafala remains valid, as we said of corrupted conditions in sale; and if one acknowledges having guaranteed with the condition of khiyar, the kafala becomes binding and the condition annulled, for by his acknowledgment he joined what annuls it, like the exception covering the whole (al-Mughni 6/341, al-Majmu' 13/188, Mughni al-Muhtaj 3/175).
Imam al-Shirazi said: no khiyar is established in the daman; for the khiyar is for repelling loss and seeking a share, whereas the guarantor enters the contract knowing he is being cheated, and because he has no share in the contract (al-Muhadhdhab 1/341, Takmilat al-Majmu' 13/188). As for the makful lahu (the guaranteed creditor), Imam al-Nawawi said: if the guarantor stipulates the khiyar for himself, the daman is not valid; if he stipulates it for the makful lahu, it does no harm, for the khiyar in demanding and releasing is his permanently (Rawdat al-Talibin 4/264, Takmilat al-Majmu' 13/188, Mughni al-Muhtaj 3/175).
If the guarantor (kafil) guarantees the deferred debt of the original debtor as immediately due: among the Shafi'is its validity falls under two opinions (Rawdat al-Talibin 4/261, al-Majmu' 13/156, al-Mubdi' 4/261; among the Malikis: Minh al-Jalil 6/203, al-Sharh al-Kabir 3/332). Among the Hanbalis, the sounder view is that this daman is permitted, but the guarantor is not demanded the debt before the term falls due, for by it he undertakes the debt and more: the more being the falling due of the deferred debt (al-Mughni 6/325, al-Kafi 2/231, al-Insaf 5/209, Sharh Muntaha al-Iradat 2/129; Majma' al-Damanat 600 also follows the view of the Hanbalis).
The Hanafis made a distinction between deferring the due debt after the kafala contract, and guaranteeing the due debt as deferred at the start of the kafala. Al-Marghinani said: when the claimant grants a delay to the original debtor, it is a delay for the guarantor too; if he grants the delay to the guarantor, it is not a delay for the one bearing the original, for the delay is a temporary release, counted as the permanent release. Unlike the case where one guarantees the due property as deferred by a month: it becomes deferred toward the original debtor, for he has no right but the debt while the kafala exists, the term thus having entered into it; here it is the contrary (al-Hidaya 3/91, Majma' al-Damanat 596).
4. If one says: "I am guarantor for so-and-so, or for his soul, or his body, or his spirit, or one of his members": he is guarantor of it (Rawdat al-Talibin 4/262, al-Mughni 6/343, al-Bahr al-Ra'iq 6/225, Hashiyat Ibn Abidin 5/286). But is kafala by a member of the body, such as the hand, the foot, a third or a half, valid? The scholars have differed in several opinions.
5. If the guarantor brings the makful bihi in a place or time other than that which the makful lahu stipulated, is it valid? Imam al-Shirazi said: if he brings the makful bihi before the place, or in a place other than that in which surrender was stipulated: if it causes him harm in accepting, or he has a purpose in refusing, acceptance is not obligatory upon him; if there is neither harm nor purpose in refusing, acceptance becomes obligatory. If he does not take him, he is brought before the authority so that he takes him and is discharged, as we said of the debt of salam. If he brings him while there is an obstacle, he is not discharged, for the surrender that is due is surrender without obstacle; thus the one who delivers the merchandise with an obstacle, his surrender is not valid; if he delivers it while it is in the governor's prison, the surrender is valid, for the governor's prison is not an obstacle, one can bring the person and demand his right from him (al-Muhadhdhab 1/344, Takmilat al-Majmu' 13/226, al-Mughni 6/347, Ikhtilaf al-Fuqaha' 1/230-231).