The guarantor's recourse against the guaranteed: the four situations

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The guarantor's recourse against the guaranteed: the four situations

First: if the guarantor settles the debt out of pure benevolence, without intending recourse against the makfun 'anhu, the debtor is released and is no longer bound by the debt; for he acted voluntarily, resembling the sadaqa. Here kafala and payment upon order, with the permission of the makfun 'anhu or without it, are identical (al-Mughni 6/331).

But if he acts with the intention of recourse against the makfun 'anhu, the case falls into four situations:

• First situation: he guarantees upon the order of the makfun 'anhu and pays upon his order: he has recourse against the debtor, whether he stipulated recourse or not, and whether he said "guarantee for me" or "pay for me" or without specification. This is the madhhab of the Malikis, the Shafi'is (Rawdat al-Talibin 4/266) and the Hanbalis (al-Mughni 6/331), and the view of Abu Yusuf among the Hanafis (Fath al-Qadir 7/188-189, Bada'i' al-Sana'i' 7/384). Abu Hanifa and Muhammad said that the statement must contain "for me" (same sources). Ibn al-Humam said: if he says "guarantee for me" or "provide kafala for me," he has recourse against him; if he says "guarantee the thousand that so-and-so owes me," he has no recourse at the time of payment, for it is a mere order to guarantee and pay, and the purpose may be recourse as much as seeking a donation: nothing is thus obligatory upon him, unless he is a khalit (the person with whom the man customarily transacts, takes from and deposits money with; every person under his care is like a khalit; see Majma' al-Damanat 555) or a partner. He said in sum that the order of kafala contains a request for a loan when it mentions "for me" (Fath al-Qadir 7/188-189).

Ibn Qudama said: he guaranteed and paid upon his order, so he resembles the one who is a partner with him, or who said "guarantee for me"; and what they mentioned is not correct, for the one who orders to guarantee can only order what lies upon himself, and his order to pay afterward refers to what he guaranteed, as shown by the case of the partner. He must therefore return what he paid on his behalf, as if he had declared it explicitly (al-Mughni 6/332).

It is reported in Majma' al-Damanat of al-Baghdadi: if he orders someone to pay the zakat of his property on his behalf, or says "give something to so-and-so," or "compensate the giver, from your property, for his gift," or "feed my dependents," or "spend of your property on whoever is in my courtyard," without mixture between them nor stipulation of recourse: Imam al-Sarakhsi said that the one charged has recourse in all these cases against the one who gave the order. And Imam Khwaharzada said: he has no recourse without stipulation. As for taxes and financial levies: if one orders another to pay them, Imam al-Bazdawi said that the one charged has recourse against the orderer without stipulation, and likewise in everything demanded from people concretely. If the authority seizes a man to confiscate his property and he says to someone "free me," or he is a captive in the hands of a disbeliever and says so to another, who pays and frees him: they have differed. Some said that the one charged has recourse in both cases only with the stipulation of recourse; others said, regarding the captive, that he has recourse without stipulation, but not in confiscation. Al-Sarakhsi holds that he has recourse in both cases without stipulation of recourse, like the debtor who orders another to settle his debt (Majma' al-Damanat p. 175-176).

• Second situation: he guarantees upon his order and pays without his order: he has recourse as well; this is the view of Malik and Ahmad, and of al-Shafi'i in one of his views (al-Mughni 6/332, Takmilat al-Majmu' 13/195). Al-Nawawi said: the sounder view, according to the explicit text, is that he has recourse; the second view is that he has no recourse, for he paid without order, resembling the donation; the third is that if he paid without being demanded, or while being demanded when he could have sought the original's permission, he has no recourse, otherwise he does (Rawdat al-Talibin 4/266).

Al-Shirazi said: if he guarantees with his permission and pays without his permission, the text states that he has recourse against him, for his dhamma was charged with the debt with his permission; when he settled it, he has recourse, like the one to whom property was lent and who pledged it in his debt and then sold it in the debt. Then he said: if he could have sought his permission, he has no recourse, for he settled by his own choice. Example: if the makfun 'anhu is present and solvent, such that he could demand him to free him from the guarantee, and he pays, he has no recourse, for he paid voluntarily; if he cannot, he has recourse, for he settled without choice. Example: if the guarantor is compelled to pay, such as when the makful lahu demands him and the makfun 'anhu is absent, or present but insolvent, and he pays the makful lahu, the guarantor has recourse, for he is compelled to pay (al-Muhadhdhab 1/342, Takmilat al-Majmu' 13/197).

Ibn Qudama said: permission to guarantee contains permission to pay, for the daman imposes payment, so he has recourse against him, as if he had permitted payment explicitly (al-Mughni 6/333).

• Third situation: he guarantees without his order and pays upon his order: Malik, Ahmad and one view of al-Shafi'i said he has recourse against him (al-Mughni 6/333, Rawdat al-Talibin 4/266, al-Muhalla 8/255, al-Majmu' 3/195). The sound view with al-Shafi'i is that he has no recourse. Al-Nawawi said: there is no recourse according to the sounder view; if payment was permitted with the stipulation of recourse, there are two possibilities for the imam: that he has recourse, as if payment had been permitted with this condition without daman; or that he has no recourse, for payment became owed through the daman, and what is owed without compensation cannot be matched with compensation, like the other obligatory rights. The first possibility is the sounder (Rawdat al-Talibin 3/499, al-Majmu' 13/195).

Ibn Qudama said: he paid his debt upon his order, so he has recourse against him, as if he were not a guarantor, or as if he had guaranteed upon his order. To their objection that permission to pay refers to what becomes owed through the guarantee, we reply: what is owed through the guarantee is only the payment of his debt, nothing else; as soon as he settles it for him with his permission, it becomes obligatory upon him to give him its equivalent (al-Mughni 6/333).

• Fourth situation: he guarantees without his order and settles his debt without his order. The people of science hold two views. The first is that he has no recourse at all; this is the view of Abu Hanifa, al-Shafi'i and one narration of Ahmad (Bada'i' al-Sana'i' 7/383, Rawdat al-Talibin 4/266, al-Majmu' 13/196, al-Mughni 6/333), relying on the hadith of the daman of Ali and Abu Qatada: they guaranteed without their permission and paid without their permission; had they been entitled to recourse against the deceased, the debt would have become owed to them and the dhamma of the dead man would have been occupied by their debt as by his own, and the Prophet would not have prayed over him. And because it is benevolence, resembling feeding his beasts and servants without order (al-Mughni 6/333, al-Majmu' 13/196).

The second view is that he has recourse; this is the view of Malik and the other narration of Ahmad (Bada'i' al-Sana'i' 7/388, al-Mughni 6/333, al-Kafi p. 399). Ibn Qudama said: it is a settlement releasing from an owed debt, so he becomes like the one who guarantees the person upon whom it lies, like the governor who pays when the debtor is prevented. As for Ali and Abu Qatada, they acted out of pure benevolence in the daman and payment, for they settled his debt intending to free his dhamma so that the Prophet would pray over him, while knowing he had left nothing to pay; the voluntary benefactor has no recourse at all, and the disagreement concerns only the one who acts counting on the reward (al-Mughni 6/333).

When may the guarantor claim recourse?

If the debt is immediate, the guarantor may have recourse after payment: when the makful lahu demands him, he may require the debtor to pay, but he only has the right of recourse if he himself settled the debt. If the debt is deferred, he only has the right of recourse after the term falls due and payment; if he pays before the term, he only has recourse after it falls due. When the deferred debt lying upon the damin falls due by his death, according to those who say the term lapses at the death of its holder, the creditor recovers the debt from his estate, and his heirs cannot claim from the makfun 'anhu until the term falls due upon him. And when the debt falls due upon the makfun 'anhu by his death, the damin cannot have recourse against the heirs until after payment (al-Mughni 6/324-326).

It is reported in al-Durr al-Mukhtar of al-Haskafi: when the deferred debt of the kafil falls due by his death, it does not fall due upon the original; if his heir pays it, he has no recourse, if the kafala was upon his order, otherwise only until its term, contrary to Zufar; likewise the deferred debt does not fall due upon the kafil by consensus when it falls due upon the original by his death. Imam Ibn Abidin commented: this indicates that the debt falls due by the death of the kafil, as is explicit in al-Gharar and Sharh al-Wahbaniyya from al-Mabsut, and justified in al-Minh 'an al-Walwaliyya by the fact that the term lapses at the death of its holder. And his statement "it does not fall due upon the original" means: likewise, if the kafil advances the debt during his lifetime, he has no recourse against the person sought before the term falls due, according to our three imams (Hashiyat Ibn Abidin 5/319-320, al-Durr al-Mukhtar 5/319).

It is reported in al-Mudawwana al-kubra: Sahnun said: I asked Ibn al-Qasim: what do you think if someone guarantees for a man what he is owed by another until a term, then the kafil dies, or the makfun 'anhu dies? He replied: Malik told me that if the kafil dies before the term falls due, the creditor may take his right from the property of the kafil, and the heirs of the kafil may take nothing from the one bearing the right until the term falls due. And if the one bearing the right dies before the term, the creditor may take his right from his property; if he has no property, he may not take it until the term falls due (al-Mudawwana 5/259-260).

Imam al-Shafi'i said: when a man bears or guarantees for a man a debt, and the one who bore it dies before the debt falls due, the one for whom he bore it may take it from what he bore; when he receives his property, the debtor and the hamil are discharged, and the heirs of the hamil cannot have recourse against the makfun 'anhu for what they paid before the debt falls due. Likewise, if the one bearing the right dies, the creditor may take it from his property; if he is unable, he may not take it until the debt falls due (al-Umm 3/204).

It is reported in Majallat al-Ahkam al-Shar'iyya, which follows the Hanbali madhhab, in article 1118: the deferred debt does not fall due by the death of the damin nor of the makfun 'anhu; but if they both die, it falls due, unless the heirs secure it with a preserved pledge or a solvent guarantor, with the lesser of the two between the property and the estate (Fiqh al-Bay' p. 1387). Ibn Qudama said: for the debt does not fall due upon a person by the death of another; and it is a deferred debt, it cannot be demanded before the term, as if the debtor had not died (al-Mughni 6/326).

With what does the guarantor claim recourse?

When the guarantor settles the debt or a part of it, he has recourse for what he paid; if he pays more, he only has recourse to the extent of the commitment of the makfun 'anhu, the excess counting as a donation to the makful lahu, for it was not owed by the makfun 'anhu. If he gives the makful lahu another kind of property than the debt: if its value exceeds the debt, he only has recourse for the debt; if it is less, he has recourse for the lesser, contrary to Imam al-Kasani, unless the makful lahu donates the excess to him. If he settles with the makful lahu for a part of the debt, the guarantor has recourse for the part he paid, and the creditor demands the debtor for the rest of the debt. If the makful lahu releases the guarantor from the rest or from the whole debt and gives it to him, the debt becomes that of the guarantor, who claims it from the makfun 'anhu, and the right of the makful lahu lapses; the sadaqa counts as the hiba (al-Furuq 2/46, Rawdat al-Talibin 4/267, al-Mughni 6/333).

It is reported in al-Mudawwana al-kubra: I said: what do you think if I guarantee one thousand Hashimi dinars, and the creditor is satisfied with one thousand Damascene dinars which I pay him: with what shall I have recourse against my partner who owes me the original? He replied: you have recourse against him with one thousand Damascene dinars, for that is how you paid (al-Mudawwana 5/269, al-Taj wa-l-Iklil 5/104, Mukhtasar Ikhtilaf al-'Ulama' 4/267).

Imam Ibn al-Humam said: if the debt is in sound steeds (jiyad) and he pays inferior horses (ziyuf), he has recourse with the ziyuf; if he owes ziyuf and pays jiyad, he has recourse with the ziyuf as well. Then he said: if the claimant donates the debt to the guarantor or gives it as alms, he becomes its owner and claims the very makfun 'anhu (Sharh Fath al-Qadir 7/190).

Imam al-Kasani contradicted this statement of Ibn al-Humam: the guarantor has recourse for what he guaranteed, not for what he paid; even if he guaranteed sound dirhams or jiyad, then gave broken coins or ziyuf while accepting the claim, he has recourse against the original with the sound jiyad; for by the payment he acquired what is in the dhamma of the original, and he thus has recourse with the actual discharge, the sound jiyad (Bada'i' al-Sana'i' 7/388).

What agrees with al-Kasani is reported in Majma' al-Damanat of al-Baghdadi, citing al-Wajiz: if the guarantor pays ziyuf while he had guaranteed jiyad, or dinars instead of dirhams, or settles for a measured or weighed thing, he has recourse for what he guaranteed. He also said: "if he guarantees sound dirhams in jiyad, then gives broken coins or accepted ziyuf, he has recourse against the original for the equivalent of what he guaranteed, not of what he paid; and this is not like the one charged to pay a debt" (Majma' al-Damanat 595, and p. 610).

Imam al-Karabisi said: if the claimant gives the property to the guarantor and he accepts it, the guarantor has recourse with it against the one bearing the original, and likewise the one who was deceived; if he releases him of it, he has no recourse with it. The difference is that the hiba is a contract of appropriation, the proof being that if he encounters its kind, it effects appropriation: he thus appropriated what is in his dhamma by the hiba, as if he had acquired it by payment, and he then has recourse against the holder of the original; likewise here. The ibra' (release) is not of this kind: it is not an appropriation, but a relinquishment of the right, the proof being that if he encounters its kind, it effects no appropriation; it is a rescission of the kafala and its abandonment, as if it had never existed, and had it not existed, there would be no recourse at all; likewise here (al-Furuq 2/246 of Imam Muhammad ibn al-Hasan al-Karabisi the Hanafi, al-Mabsut 20/93).

Imam al-Nawawi said: a branch on the mode of recourse: if what the creditor paid is of the kind of the debt and in its quality, he has recourse with it; if he settles for another kind, one examines: if the value of the settlement exceeds the debt, he does not have recourse for the excess. Otherwise, like the one who settles a thousand for a slave worth nine hundred, there are two opinions; it is said that the sounder of the two is that he has recourse with the nine hundred, the second being that he has recourse with the thousand; if he sells the slave for a thousand, then takes it back (taqass), he has recourse with the thousand without disagreement. If the quality differs: if he paid sound coins for broken ones, he does not have recourse with the sound ones, and conversely, the disagreement is that of the kind (Rawdat al-Talibin 4/267).

Imam al-Khirqi said: the damin has recourse against the makfun 'anhu with the lesser of the two between what he settled and the amount of the debt (al-Mughni 6/333). Ibn Qudama said: if the lesser is the debt, the excess was not owed, so he paid benevolently; if what is paid is lesser, he only has recourse for what he was charged with. Thus if his creditor releases him, he has no recourse at all; and if he pays property in place of the debt, he has recourse with the lesser between its value and the amount of the debt (al-Mughni 6/333, al-Kafi 2/232, Kashf al-Qina' 3/375).

Is the deceased's debt discharged by the guarantee itself?

The scholars have differed in two opinions. First opinion: the right does not leave the dhamma of the deceased except by payment, like the living, not by the daman alone; this is the view of Abu Hanifa, Malik, al-Shafi'i and Ahmad in one narration. The majority of people of science relied upon the following.

1. The statement of the Prophet in the hadith of Jabir concerning Abu Qatada taking charge of the deceased's debt:

The Prophet met Abu Qatada and asked him: "What has become of the two dirhams?" He replied: Messenger of Allah, we only buried him yesterday. The Prophet came back to him afterward and asked: "What has become of the two dirhams?" He replied: I settled them, Messenger of Allah. The Prophet said: "Now his skin has cooled."Hasan hadith, narrated by Ahmad in al-Musnad (3/330), al-Tayalisi (1673), al-Tahawi in al-Mushkil (10/334), al-Hakim in al-Mustadrak (2346, authentic chain in his view, approved by al-Dhahabi), al-Daraqutni (3/79), al-Bayhaqi in al-Kubra (6/74) and in Ithbat 'Adhab al-Qabr (118), through chains passing by Abdallah ibn Muhammad ibn 'Aqil (of sound hadith scholarship) from Jabir; graded hasan by al-Mundhiri (3/39), and al-Haythami said in al-Majma' (3/39): narrated by Ahmad and al-Bazzar, hasan chain

Al-Tahawi said: this hadith is evidence that the kafala does not release the debtor merely through the guarantor's being bound; for the Prophet announces therein that the skin of the deceased only cools through the actual settlement of the debt by his guarantor, not through the mere kafala of his creditor (Sharh Mushkil al-Athar 10/335). Al-Majd Ibn Taymiyya pointed to it in al-Muntaqa, saying: chapter on the fact that the makfun 'anhu is only released by the payment of the damin, not by his daman alone. Al-Shawkani said in his commentary of this hadith: it is evidence that the deceased's release from the burden of the debt, the purity of his dhamma in truth and the lifting of the punishment are only realized through actual settlement, not through mere verbal undertaking (Nayl al-Awtar 5/359, hadith no. 1371).

2. His statement:

"The soul of the believer is suspended by his debt until it is settled on his behalf"Sahih hadith, narrated by Ahmad in al-Musnad (2/508), al-Tirmidhi (1078, graded hasan by him and more authentic than the previous; also 1079), Ibn Majah (2413), al-Shafi'i in al-Umm (1/247) and in his Musnad (1/361), Abu Ya'la (5872, 6026), al-Hakim (2219, 2220), al-Baghawi in Sharh al-Sunna (2140), al-Bayhaqi in al-Kubra (4/61, 6/76), from Abu Hurayra; authentic chain meeting the condition of the two shaykhs; al-Daraqutni preferred this route in al-'Ilal (1780); also narrated by Ibn Hibban in his Sahih (3061)

Ibn Qudama, after relying on these two hadiths, said: and because kafala is a guarantee that does not transfer the right, like testimony. As for the Prophet's prayer over the makfun 'anhu, it is that through the daman means of payment came to him, and the Prophet used to refrain from praying over a debtor who had left nothing to pay. As for his statement to Ali: "May Allah release your pledge as you released the pledge of your brother," Ali was in a situation in which the Prophet did not pray over him; when he guaranteed him, he was released from it. His statement "the deceased is discharged of them" means that he became the one liable for the two dirhams; it is said by way of affirmation, the right being established in his dhamma and its payment obligatory, as shown by his statement in the same hadith when he announced the settlement to him: "now his skin has cooled." The daman differs from the hawala: the daman derives from joining (damm) and requires the joining of the two dhammas by the establishment of the right in both; the hawala derives from transfer and requires the passing of the right from its place to the dhamma of the muhall 'alayh (al-Mughni 6/328).

If it is asked what is the wisdom of his soul being suspended, while he left nothing to pay and he is in the position of the insolvent whom this world does not detain: the reply is that the hereafter differs from this world. The detention of the insolvent in this world is without benefit, for no settlement is expected from him while he is detained, whereas settlement is hoped from him if he is free, since he can acquire the means to pay. In the hereafter, by contrast, detention is a requital for the persistence of the right in his dhamma, preserving the creditor's right, and it is recovered from him by taking his good deeds and transferring his bad ones; he resembles the one who owns property in this world whose appearance is awaited through his detention: the meaning is thus intelligible (Nihayat al-Muhtaj 15/96). It has also been said: the debtor is only kept from Paradise for non-payment if he dies capable of paying; if he dies incapable, if he incurred the debt for luxury or something unlawful, he is detained, for his settlement is not obligatory upon the authority (al-Fawa'ih al-Dawani 2/242).

Second opinion: the right leaves his dhamma by the daman alone; this is the second view of Imam Ahmad (al-Ifsah 2/204, al-Mughni 6/327, Sharh Muntaha al-Iradat 2/248, Asna al-Matalib 10/115, al-Muhalla 8/254), relying on the hadith of Abu Sa'id al-Khudri:

We were with the Prophet at a funeral; when the body was laid down, he asked: "Does your companion owe a debt?" They replied: yes, two dirhams. He said: "Pray over your companion." Ali said: the two are upon me, Messenger of Allah, I stand surety for them. The Messenger of Allah therefore rose and prayed over him, then turned to Ali and said: "May Allah reward you on behalf of Islam, and may He release your pledge as you released the pledge of your brother." It was asked: Messenger of Allah, does this apply to Ali alone or to people in general? He said: "To people in general".Hadith judged very weak

They deduced from it that the makfun 'anhu is released by the daman (al-Mughni 6/327). And by what Imam Ahmad reported in al-Musnad from Jabir ibn Abdallah:

A companion of ours died, and we went to the Prophet for him to pray over him; he took a step then asked: "Does he have a debt?" We replied: two dirhams. He turned back. Abu Qatada took charge of them: the two dirhams are upon me. The Messenger of Allah asked: "Is the creditor's right owed and the deceased discharged of them?" He replied: yes. He prayed over him, then said afterward: "What has become of the two dirhams?" He replied: he only died yesterday. He came back to him the next day and asked: "What has become of the two dirhams?" He replied: Messenger of Allah, I settled them. The Messenger of Allah said: "Now his skin has cooled".Narrated by Ahmad in al-Musnad from Jabir ibn Abdallah; hasan hadith, by the same routes as the hadith of Abu Qatada cited above

This is explicit on the release of the makfun 'anhu by his statement "the deceased is discharged of them," and because it is a single debt: when it passes into a second dhamma, the first is released of it, as with the muhall 'alayh, for a single debt cannot exist in two places (al-Mughni 6/328). The wisdom of the Prophet's refraining from praying over him is the occupation of his dhamma by the persistence of the debt, with his right of recourse against the original after the release, the hiba counting as payment (Bada'i' al-Sana'i' 7/378).

Al-Nawawi said: if the damin settles a part of the debt, then the creditor donates it to him, there are two views on his recourse against the original, according to the two views on the one who donates the mahr to his wife then divorces her before consummation; the sounder view is recourse (Rawdat al-Talibin 4/269). The Hanafis extended this to the case where the creditor gives alms to the guarantor or the original: it is like the hiba, for the hiba and the sadaqa are both an appropriation (Bada'i' al-Sana'i' 7/378, Durrar al-Hukam 1/845).

Muqassa: the offsetting of debts

The muqassa is another way for the guarantor to be released by property, whether it occurs between the original and the creditor, or between the creditor and the guarantor in their properties. Linguistically, it comes from the mutual exchange of claims: each recovers what he is owed from his debtor (Bilghat al-Salik 3/186, al-Mabsut of al-Sarakhsi 20/130). "Qassa-hu muqassa" means that he had a debt like that of his counterpart and set the debt against the debt (al-Mu'jam al-Wasit 2/739).

The fuqaha did not go beyond the linguistic sense in its definition. The Hanafis defined it as the relinquishment of a debt claimed from a person, in exchange for a debt claimed from that person (Murshid al-Hayran p. 224). The Malikis: the relinquishment of your debt upon your debtor in return for the one he has upon you, with its conditions (al-Sharh al-Kabir with Hashiyat al-Dasuqi 3/277). Ibn 'Arafa also defined it as the mutual sharing of a due with its counterpart of the same kind, toward what is owed to the one who claims (Manh al-Jalil 5/410, Mawahib al-Jalil 4/549). It has also been said: the deduction of a debt from a debt (al-Qawanin al-fiqhiyya p. 192).

The muqassa has two types: compulsory (jabriyya), realized by the contract itself when the two debts are unified in kind, quality, exigibility, strength and weakness; and elective (ikhtiyariyya), realized by the agreement of the two debtors, without requiring what is required for the compulsory type. When it is established that the original or the guarantor has a debt like that of the claimant upon the original, the two debts cancel each other and the guarantor is released from the kafala; if the debt is that of the guarantor, he has recourse with it against the original, as if he had paid it on his behalf (Murshid al-Hayran p. 225-226, Hashiyat al-Dasuqi 3/279).

Hawala (transfer of debt) and the effect of death

Fifthly: the hawala. It is the transfer of the debt and of the claim from the dhamma of the muhil to the dhamma of the muhall 'alayh (Murshid al-Hayran p. 589, Tabyin al-Haqa'iq 4/171, al-'Inaya Sharh al-Hidaya 10/177, Hashiyat Ibn Abidin 5/340, Mughni al-Muhtaj 3/153, al-Kafi 2/218). If the original or the guarantor refers the claimant to another to recover his right from him, both are released according to the majority of the fuqaha (Bada'i' al-Sana'i' 7/379-380, Rawdat al-Talibin 4/268, al-Mughni 6/329).

Al-Kasani the Hanafi said: if the guarantor refers the claimant, regarding the property of the kafala, to a man and the claimant accepts him, the muhil leaves the kafala according to our three companions; likewise if the person sought refers him, for the hawala releases both from the debt and the claim according to most of our shaykhs (Bada'i' al-Sana'i' 7/379-380). Ibn Qudama said: if either of the two refers the creditor, both are released, for the hawala counts as payment (al-Mughni 6/329).

Sixthly: death, which is specific to the kafala of the person. The scholars have differed regarding the makful bihi who dies: does the kafala fall away from the guarantor, or does what lies upon the makful bihi become obligatory upon him? Ibn Qudama reported and explained this difference. He said: if the makful bihi dies, the kafala falls away and nothing becomes obligatory upon the guarantor; thus said Shurayh, al-Sha'bi, Hammad ibn Abi Sulayman, Abu Hanifa and al-Shafi'i. Al-Hakam, Malik and al-Layth said: the guarantor owes what lies upon him; this is reported from Ibn Shurayh. They argued that the guarantor is a guarantee for a right; if the debtor's settlement becomes impossible, one recovers from the guarantee as from the pledge; and because the makful bihi became impossible to bring, his guarantor owes what lies upon him, as if he were absent.

Then Ibn Qudama said: our argument is that presence has lapsed from the makful bihi, so the guarantor is released as from the debt; the commitment toward him has lapsed from the original, so the derivative is released, like the damin when the makfun 'anhu settles the debt or is released from it. This differs from absence, where presence has not lapsed; and it differs from the pledge, whose property is attached and recovered from it (al-Mughni 6/351, Rawdat al-Talibin 4/258). The author of al-Hidaya said: when the makful bihi dies, the guarantor is released from the kafala of the person. The author of al-'Inaya explained it: the kafala of the person persists by the persistence of the guarantor and the makful bihi, and their death or the death of one of the two removes it. If the makful bihi dies, it is because the guarantor became unable to bring him and presence lapsed from the original, the bringing thus lapsing from the guarantor. If the guarantor dies, he became necessarily unable to surrender the makful bihi of his person. If it is said that he must pay the debt from his property, the reply is that his property does not fit this commitment, which consists in bringing the makful bihi and surrendering him to the makful lahu: neither by nature, for he took no money, nor by substitution, for a person cannot be substituted, unlike the guarantor of property, whose kafala is not annulled at his death, for his property fits as a substitute, the purpose being the settlement of the right in money; one therefore takes from his estate, and his heirs have recourse against the makfun 'anhu if the kafala was upon his order, as during his lifetime. And if the makful lahu dies, his testamentary guardian may claim from the guarantor, if he has one, otherwise his heirs, each standing in the place of the deceased (al-'Inaya Sharh al-Hidaya 6/289, al-Hidaya Sharh al-Bidaya 3/88).

Kafala for a fee (ju'l)

It is established in Islamic fiqh that kafala is a contract of benevolence (tabarru'), which admits no demanded remuneration, like the loan; the majority of people of science therefore prohibit taking compensation for the daman (Majma' al-Damanat 604, 610, al-Sharh al-Kabir of al-Dardir with Hashiyat al-Dasuqi 3/404, al-Sharh al-Saghir 3/242, Mughni al-Muhtaj 3/175, al-Furu' of Ibn Muflih 4/207, Kashf al-Qina' 3/262, the Fatawa of Ibn Taymiyya 30/215-216).

Ibn al-Mundhir said: all those whose views I retain among the scholars agree that the hamala, the kafala for a ju'l taken by the hamil, is not lawful. They differed on the establishment of the daman with the condition: al-Thawri said that if a man says to another "provide kafala for me and you shall have a thousand dirhams," the kafala is permitted and the thousand dirhams are returned to him. Ahmad said in this question: I do not see that he takes anything by right. Ishaq said: what was given to him willingly is fine (al-Ishraf 1/83), meaning given spontaneously, without condition. It is said in Fath al-Qadir: if he guarantees property against a ju'l from the claimant, then if the ju'l is not stipulated in the kafala, the condition is void; and if it is stipulated in the kafala, the kafala is void (Fath al-Qadir 7/186).

Al-Bazzaziyya specifies the reason for prohibiting remuneration of the kafala: the guarantor is a lender to the right of the person sought; if he stipulates the ju'l with the guarantee of the equivalent, he stipulates an increase upon his loan, hence a riba; and if he stipulates it in the kafala, the latter is annulled, whereas it should remain valid, the kafala not being annulled by the condition: see that kafala until the blowing of the wind is valid and the condition annulled. The reply: it is not valid because he suspended it upon a condition benefiting the guarantor; the condition must be honored for the kafala to be established, and the condition not being established, the ju'l is not owed, so the kafala is not established. Its nullity comes from there, not from a corrupted condition, unlike the blowing of the wind, which brings no benefit to the guarantor: containing no benefit, honoring it is not required, like a condition of sale benefiting neither party; not established, the kafala remains free (al-Fatawa al-Bazzaziyya 6/18).

It is said in al-Sharh al-Saghir: the daman is annulled if the object of the undertaking is corrupted, or if the hamala itself is corrupted according to the Law, such as a ju'l to the damin from the creditor, the debtor or a third party. The reason for the prohibition is that if the creditor settles the debt to his creditor, the ju'l is void, falling under consuming people's property unlawfully; and if the hamil settles it to his creditor and then has recourse against the creditor, it is a loan with an increase, so the hamala is corrupted and the ju'l returned to the creditor. If the ju'l comes from the creditor to the hamil, the hamala lapses and the sale remains valid, the buyer having nothing to do with what the seller did with the hamil; likewise if the ju'l comes from the debtor or a third party, with the creditor's knowledge; without his knowledge, the hamala remains binding and the ju'l returned. And if the ju'l comes from the creditor or a third party to the debtor, on condition that he bring him a guarantor, it is permitted. It is concluded that the nullity of a ju'l from a third party to the damin only occurs if the creditor knows of it; otherwise it is returned and the hamala remains binding (al-Sharh al-Saghir 4/581, 583, by Imam Abu al-Abbas Ahmad ibn Muhammad al-Khuluti, known as the Maliki al-Sawi, d. 1241 H; Hashiyat al-Dasuqi 3/298-299).

The Malikis went to the extreme of annulling the taking of a ju'l for the kafala: they said that if two men agree that each guarantee the other's debt and enter into this condition, it is not valid, for it counts as a ju'l; they excepted some cases from it (Hashiyat al-Dasuqi 3/299, al-Sharh al-Saghir 4/583). From these quotations it appears that taking remuneration for the kafala is not permitted, for it oscillates between benevolence and benefaction, or between a loan in the case of payment by the guarantor; and in both cases, remuneration is not permitted. Some scholars considered taking remuneration for the kafala as a bribe (rachwa).

Imam al-Sarakhsi said: if a man guarantees property of a man against a ju'l, the ju'l is void; thus it is reported from Ibrahim; and it is because it is a bribe (rachwa) and the rachwa is haram, the claimant obtaining no increase of property through this kafala: no compensation can therefore become obligatory upon him in exchange. The daman remains permitted if the ju'l is not stipulated in it; and if the ju'l is stipulated in it, the daman is void as well, for the guarantor is bound and commitment only counts with his consent. See that in case of compulsion to the kafala, nothing would be obligatory upon him; when he stipulates the ju'l in the kafala, he only consents to the commitment if the ju'l is paid to him; and without stipulation, he fully consents to the commitment, which therefore becomes obligatory upon him (al-Mabsut of al-Sarakhsi 20/32).