Islamic Fiqh > Financial transactions > Kafala and daman (guarantees) > The arguments of those who require knowledge, then the second condition: the beneficiary's consent
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Updated on 26 September 2026 at 7:12 PM
This part belongs to the full section: All sections of this part.
Those who require knowledge of the beneficiary relied on the following:
Second condition: the consent of the beneficiary. The people of knowledge differed on the beneficiary: is his consent required or not? Two opinions.
First opinion: the consent of the beneficiary is not required. This is one of the two views of Abu Yusuf (Bada'i' al-Sana'i' 7/355, 356), the view of the Shafi'is (Rawdat al-Talibin 4/240; al-Muhadhdhab 1/340; al-Fatawa al-Fiqhiyya al-Kubra 3/73; Mughni al-Muhtaj 3/164; Asna al-Matalib 2/244), and of the Hanbalis (al-Mughni 6/314; al-Rawd al-Murbi' 6/433; Kashshaf al-Qina' 3/366).
Al-Nawawi (may Allah have mercy on him) said: the consent of the beneficiary is not required on the soundest view, that of most of the scholars, for the daman does not harm him: it is an obligation that only strengthens his debt (Rawdat al-Talibin 4/240; Takmilat al-Majmu' of al-Mati'i 13/166).
Ibn Qudama (may Allah have mercy on him) said: the consent of the beneficiary is not taken into account, for the daman is an obligation with no exchange, a donation from the surety: only his own consent is taken into account (al-Mughni 6/314; Muntaha al-Iradat 2/148; al-Rawd al-Murbi' 6/434). Added to this is the hadith of Abu Qatada (may Allah be pleased with him) guaranteeing the debt of the deceased: its bearing, as Imam al-Kasani the Hanafi says, is that the acceptance of the claimant was not transmitted: this is proof that he did not accept it from him; had it been sought from him, it would have reached us (Bada'i' al-Sana'i' 7/355).
Al-Tahawi (may Allah have mercy on him) said: this hadith contains a rule of fiqh: binding the surety by the kafala without the acceptance of the beneficiary (Sharh Mushkil al-Athar 10/333). The daman is a proof (hujja) that does not require taking possession: it is valid without the beneficiary's consent, like testimony (al-Mughni 6/314; al-Bay' 1351). The daman is the binding, by legislation, of what lies at the charge of the principal debtor: it is not a transfer of ownership, and it is valid by the offer of the guarantor alone: it resembles the vow (Bada'i' al-Sana'i' 7/355). And because the sick person may say at the time of death to his heirs: "Answer for my debt to my Byzantine creditors," who are absent, and they guarantee it: it is permitted and binding on them by equitable consideration (Bada'i' al-Sana'i' 7/355; Fath al-Qadir 7/202; al-Mughni 6/314; Ikhtilaf al-Fuqaha' 1/232; Tabyin al-Haqa'iq 4/159; Tuhfat al-Ulama 3/241).
Second opinion: the consent of the beneficiary is required. This is the view of the Hanafis (Bada'i' al-Sana'i' 7/355; Fath al-Qadir 7/201; Hashiyat Ibn Abidin 5/446; al-Bahr al-Ra'iq 17/208) and of Abu Ali al-Tabari among the Shafi'is (al-Muhadhdhab 1/340). It means that he say: "I accept," "I am content," "I desire it," or anything pointing to that meaning (Bada'i' al-Sana'i' 7/356).
Ibn al-Humam (may Allah have mercy on him) said: the kafala is valid only with the acceptance of the beneficiary in the session, according to Abu Hanifa and Muhammad, may Allah have mercy on them both (Fath al-Qadir 7/201), for the daman is not a pure obligation: it carries the meaning of transfer of ownership, which is completed only by offer and acceptance, like sale (Bada'i' al-Sana'i' 7/355; Fath al-Qadir 7/202; al-Muhadhdhab 1/340). The offer alone is then one side of the contract: it does not depend on one absent from the session, like sale.
This condition was required only by Abu Hanifa and Muhammad, may Allah have mercy on them both, as a consequence of their requiring acceptance in the daman: the kafala is not valid, according to them, from the insane person or the child without discernment, for the kafala is completed for the beneficiary, on the sound view, only by acceptance: he must therefore be among those fit to accept. The kafala is likewise not valid by the acceptance of their guardian on their behalf, for acceptance is taken into account from the one to whom the offer is addressed; the one to whom the offer is addressed is not fit to accept, and the one for whom acceptance was made had no offer addressed to him: his acceptance is therefore not taken into account (Bada'i' al-Sana'i' 7/367; see al-Majmu' 13/176).
As for the discerning child, there is a distinction: if the child is a merchant, that is, authorized to trade, his acceptance is valid, for he sells on that basis. If he is not, there are two narrations, and validity is the view of Abu Yusuf (Hashiyat Radd al-Muhtar 5/435).
What is meant by what is not yet due is what will become due in the future, like tomorrow's maintenance, or the price of what he will sell or lend; for example: "Whatever you give to so-and-so is on me" (Mughni al-Muhtaj 3/165). It is also called daman al-suq, the guarantee of the market, as will come.
The scholars differed on the ruling on the daman of what is not yet due in two opinions. First opinion: it is valid. This is the view of the majority of scholars: Hanafis (Bada'i' al-Sana'i' 7/373; Fath al-Qadir 16/167), Malikis (al-Mudawwana 5/262; Bidayat al-Mujtahid 2/409), Hanbalis (al-Mughni 6/325; al-Rawd al-Murbi' 6/435), and it is the view of al-Shafi'i in the old (Rawdat al-Talibin 4/244). Second opinion: it is not valid. This is the view of al-Shafi'i in the new, for the daman is a proof (hujja) for a right, and the right is not preceded, like testimony (al-Muhadhdhab 1/341; Takmilat al-Majmu' 13/184; see Bidayat al-Mujtahid 2/409).
Al-Shafi'i (may Allah have mercy on him) said: the daman binds only what the guarantor knows; what he does not know is of the nature of a gamble (al-Umm 3/204).
The shaykh of Islam Ibn Taymiyya (may Allah have mercy on him) said: the daman of what is not yet due is permitted according to the majority of scholars, like Malik, Abu Hanifa, and Ahmad ibn Hanbal, and the Book indicates it, by the word of Allah the Most High:
"And for whoever brings the load of a camel, upon me be its responsibility"
Surah Yusuf, 72
The bearing of the verse: the crier guaranteed the load of the camel to the one who would bring the measure, and it had not yet been brought: it is a daman of what is not yet due. Although this occurred in the legislation of those before us, it is legislation for us so long as no proof of our legislation contradicts and abrogates it, as established in the science of the principles of fiqh. Moreover, our legislation contains what indicates it, the word of the Prophet (peace be upon him): "The loan for use must be returned, the gift must be returned, the debt must be paid, and the surety is liable" (its takhrij cited earlier in the encyclopedia). The probative part is: "the surety is liable," a general expression covering every guarantor, whether he guarantees what is due or what is not yet due.
Ibn al-Qayyim (may Allah have mercy on him) said: the daman of what is not yet due is valid, as the Quran indicates; the general interest requires it, and need or even necessity may call for it (I'lam al-Muwaqqi'in 3/384).
For this reason the Hanbalis define the daman as: the obligation of what is due or will become due upon another while remaining upon him; or the joining of a person's dhimma to another's in what binds him now and in the end (Fiqh al-Nawazil 1/207; al-Rawd al-Murbi' 2/180; Matalib Uli al-Nuha 3/292).
The daman of what is not yet due is also called daman al-suq, the guarantee of the market: guaranteeing what binds the merchant, or what remains upon the traders, or what is taken of the guaranteed goods.
The shaykh of Islam Ibn Taymiyya (may Allah have mercy on him) was asked about one who writes market guarantees and other writings not permitted by the legislation: does the writer sin, given that he writes and witnesses before those present what they accept? He answered: the guarantee of the market, which is to guarantee what is owed by the merchant in debts and what he takes of the guaranteed goods, is a valid daman: it is a daman of what is not yet due and of the unknown, permitted according to the majority of scholars, like Malik, Abu Hanifa, and Ahmad ibn Hanbal. The Book indicates it, by the word of Allah: "And for whoever brings the load of a camel, upon me be its responsibility" (Surah Yusuf, 72). Al-Shafi'i deems it void, yet the writer and the witness may write it and witness it even if they do not see its validity, for it is a matter of ijtihad: the ruler rules by whichever of the two views he sees fit (Majmu' al-Fatawa 29/549).
Daman al-darak is to say to the buyer: "I guarantee the price if the merchandise is claimed by another" (Mughni al-Muhtaj 3/165). The claim (istihqaq) is the appearance of another's right over wealth; it is of two kinds: the kind that voids everyone's ownership of the thing claimed, like merchandise that turns out to be a waqf or a mosque, or when the administrator of a waqf claims that the merchandise held by the buyer is his waqf and proves his claim and judgment is given for him; and the kind that transfers ownership from one holder to another, like purchased wealth that turns out to belong to another. In both kinds, the buyer has recourse against his seller for the price (al-Durrar al-Hukkam 3/492; Fath al-Qadir 7/181).
The meaning of daman al-darak differs among the scholars: for the Hanafis (Bada'i' al-Sana'i' 7/373; Hashiyat Radd al-Muhtar of Ibn Abidin 5/303; al-Bahr al-Ra'iq 6/259) and the Malikis (al-Mudawwana 3/138), it is the guarantee of the price when the merchandise is claimed. The Shafi'is say: it is the guarantee of the price for the buyer if the merchandise goes out claimed, defective, or deficient, and the guarantee of the merchandise for the seller if the price goes out claimed, defective, or deficient (Mughni al-Muhtaj 3/165; Sharh al-Minhaj 3/380; al-Siraj al-Wahhaj 1/41; al-Muhadhdhab 1/342; Rawdat al-Talibin 4/246). With the Hanbalis, it is the guarantee of the price, or part of it, from the buyer to the seller, or the reverse (al-Mughni 6/318; al-Insaf 5/198).
The scholars differed on daman al-darak in two opinions. First opinion: it is valid. This is the view of the Hanafis (Bada'i' al-Sana'i' 7/373; Majma' al-Damanat p. 599; Fath al-Qadir 7/181; Hashiyat Radd al-Muhtar 5/303), the Malikis (al-Mudawwana 5/271; Manh al-Jalil 6/245; Sharh Mukhtasar Khalil 5/155), the Shafi'is in the madhhab (al-Muhadhdhab 1/342; Takmilat al-Majmu' 13/203; Mughni al-Muhtaj 3/165; al-Fatawa al-Fiqhiyya al-Kubra 3/80), and the Hanbalis in the madhhab (al-Mughni 6/318; al-Rawd al-Murbi' 6/436).
Ibn Qudama (may Allah have mercy on him) said: the daman of the uhda of the sale, for the buyer against the seller, or for the seller against the buyer, is valid. His daman against the buyer: guaranteeing the price due by the sale before its delivery; if a defect appears or it is claimed, recourse falls back on the guarantor. His daman for the buyer against the seller: guaranteeing, on the seller, the price when the merchandise goes out claimed, or is returned for a defect, or the compensation of the defect. The daman of the uhda in both places is the guarantee of the price, or part of it, by one of the two for the other. The uhda in its true sense is the document in which the deed of sale is written and the price mentioned: it was used to name the price guaranteed. Among those who permitted the daman of the uhda in general are Abu Hanifa, Malik, and al-Shafi'i; some Shafi'is forbade it, because it is a daman of what is not yet due, a daman of the unknown, and a daman of a corporeal item. We have established the validity of the daman in all of that, and need calls for the written proof against the seller. The proofs are of three kinds: testimony, pledge, and daman. Testimony does not recover the right; the pledge is forbidden for this by consensus, for it would lead to the item remaining pledged forever; only the daman remains. And he guarantees only what was due at the time of the contract, for the ruling of the daman attaches when the merchandise goes out claimed or defective during the contract; the ignorance is then negated, for he guaranteed the whole: if part of it goes out claimed, part of what he guaranteed is binding on him (al-Mughni 6/318; see Takmilat al-Majmu' 13/203).
Second opinion: daman al-darak is not valid. This is a view of the Shafi'is (Rawdat al-Talibin 4/246; al-Majmu' 13/202) and the Hanbalis (al-Mughni 6/318), for it is a daman of what is not yet due, and a daman of what will be claimed in the sale, which is unknown; and the daman of the unknown is not valid (see al-Majmu' 13/203; al-Mughni 6/318).
Al-Suyuti (may Allah have mercy on him) said: daman al-darak was permitted against analogy, for the seller, selling his own property, owes nothing of the price he took such that he would guarantee it; but because of the people's need to deal with one they do not know, and because it is not assured that the merchandise will not go out claimed (al-Ashbah wa'l-Nazair p. 125).
Ibn Qudama (may Allah have mercy on him) said: this established, the daman of the uhda against the seller for the buyer is valid before and after the taking of the price. Al-Shafi'i (may Allah have mercy on him) said: it is valid only after the taking, for before the taking, were the merchandise to go out claimed, nothing would be due from the seller: this is built on the daman of what is not yet due when it leads to obligation, like the ju'ala.
The formulas of the daman of the uhda are to say: "I guaranteed its uhda, its price, or its darak"; or to say to the buyer: "I guaranteed you your release from it"; or to say: "When the merchandise goes out claimed, I have guaranteed you the price." It is related of Abu Yusuf that he said: "I guaranteed you the uhda."
The uhda in its true sense is the written deed of purchase, as the philologists explained: guaranteeing the deed for the buyer is therefore not valid, for it is his property. Nor is it sound, for the uhda has become, in usage, the expression of the darak and the guarantee of the price; an unrestricted word is carried on customary names and not on the linguistic sense, like the word riwaya, carried in usage on the auction price and not on camels, though the latter is its original meaning (al-Mughni 6/318).
Items already under guarantee are like the usurped object, merchandise sold by an invalid contract, the item taken during the bargaining option, and the loan for use ('ariya): these items are guaranteed against their holders. May a guarantor guarantee them? The scholars differed on this in four opinions. An example of the usurped object: someone seizes another's watch by force and flees; the owner finds him, seizes him, and says: "I will take you to prison, or you give me the watch." He says: "The watch is at home, I do not have it with me." The owner meant to imprison him when another man stepped forward and said: "I answer for the watch." Shaykh Ibn Uthaymin said: the daman is valid, for the usurped object is guaranteed in all circumstances and the usurper is a guarantor in all circumstances: his hand is not a hand of trust. In this case it is therefore valid for the guarantor to guarantee the watch. The meaning of the item taken during the bargaining option: negotiating the price of goods with someone without a final contract, whether the price was paid and the item taken without delivery of the price, or the price was not paid and the item taken so that his family could look at it (Takmilat al-Majmu' 13/148; Manar al-Sabil 1/416).
First opinion: the daman of the guaranteed item is valid if it exists, and the daman of its substitute or its value if it perishes. This is the madhhab of the Hanbalis (al-Mughni 6/317; al-Rawd al-Murbi' 6/435; Kashshaf al-Qina' 3/370; Matalib Uli al-Nuha 3/340), by analogy with rights established in the dhimma, on the common ground that they are guaranteed against their holder. Ibn Qudama (may Allah have mercy on him) said: these items are guaranteed against their holder: their daman is therefore valid, like the rights established in the dhimma (al-Mughni 6/318).
Second opinion: the daman is not valid without restriction. This is a view of the Shafi'is (Rawdat al-Talibin 4/255), for items are not established in the dhimma: only what is established in it is guaranteed; describing these items as guaranteed only means that their value is due upon destruction, and the value is unknown. Ibn Qudama discussed this view: the daman in reality is the guarantee of their recovery and return, that is, the obligation to obtain the item or its value upon destruction; this is among what the daman of which is valid, like the uhda of the sale: its daman is valid, and it is in reality the obligation to return the price or compensate it if a defect appears in the merchandise or it goes out claimed (al-Mughni 6/318).
Third opinion: the daman of returning the item to its owner is valid if it exists, without guaranteeing its value if it perishes. This is the madhhab of the Shafi'is (Rawdat al-Talibin 4/255; al-Majmu' 13/167; al-Iqna' 2/314). The validity of the daman of the return alone rests on analogy with the validity of the daman of the person (badan), and it is even sounder here, for what is intended here is wealth. As for the invalidity of guaranteeing its value if it perishes, it is because the value is not established. Al-Khatib al-Shirbini (may Allah have mercy on him) said: the daman of returning every item to its holder is valid, guaranteed against him, whether usurped, borrowed, taken on deposit, or merchandise sold but not yet taken, like the daman of the person, and even sounder, for what is intended here is wealth. The guarantor is discharged by returning it to the beneficiary, and he is also discharged if it perishes: its value is not due from him, just as if the person guaranteed dies, the guarantor owes no debt. If he guarantees the value of the item if it perishes, that is not valid, the value not being established (Mughni al-Muhtaj 3/167, 168).
Fourth opinion: the distinction. If the item is guaranteed by itself, like merchandise sold by an invalid contract and the item taken during the bargaining option, its daman is valid without restriction. If it is guaranteed by something else, only the daman of its delivery is valid, if it exists; the daman of its substitute if it perishes is not valid. This is the view of the Hanafis (Bada'i' al-Sana'i' 7/368; al-Majmu' 13/148; al-Bahr al-Ra'iq 6/250). Items guaranteed by themselves are those whose return in kind is owed to their holder as long as they exist; if they perish, he must provide a like item if one exists, otherwise their value: such is the usurped object and the sale by an invalid contract. If someone usurps, for example, a cow, he must return it as long as it exists; if it dies, he must buy a like one for its owner; and if a jewel with no like is usurped and lost, he owes its value to the owner once the loss is established by evidence or acknowledgment. Likewise merchandise bought by an invalid contract. Items guaranteed by something else are like merchandise before taking possession: if someone buys merchandise, pays its price without taking it, and a man guarantees it for the buyer, then it perishes, the guarantor is not bound to return it in kind nor to pay its value, for it was no longer guaranteed against the principal; it was guaranteed by something else, the price. Likewise the pledged item is not guaranteed by itself for the pledgee, but by the debt: if it perishes, nothing is owed by the pledgee, but the debt falls upon the pledgor to the extent of the destroyed item, according to the Hanafis; the daman therefore cannot be imposed on the guarantor, who is not bound for the item at the charge of the principal (Bada'i' al-Sana'i' 7/368; al-Majmu' 13/148; al-Bahr al-Ra'iq 6/250).
The proof of the validity of the daman of the item guaranteed by itself without restriction: the principal owes the return of the item as long as it exists, and a like or its value if it perishes: the guarantor is likewise, for he guarantees only what was guaranteed against the principal. The proof of the invalidity of the daman of the item guaranteed by something else, if it perishes: this item is not guaranteed by itself but by something else, like the merchandise before taking possession, acquired against the price, and the pledged item, guaranteed not by itself but by the debt: since it was not guaranteed in the first place, the daman is of the weaker sort (Bada'i' al-Sana'i' 7/368; Hashiyat Radd al-Muhtar 5/309; Sharh Fath al-Qadir 7/200; al-Bahr al-Ra'iq 6/250; al-Durrar al-Hukkam, commentary on Majallat al-Ahkam 1/646).
Entrusted items are items not guaranteed against their holder unless he transgresses or is negligent: like the deposit (wadi'a), the rented item, the wealth of partnerships, and the wealth of the mudaraba. The question: are these items guaranteed against their holder? The scholars differed on the ruling on their daman in three opinions.
First opinion: if he guarantees them without transgressing in them, their daman is not valid; if he guarantees them while transgressing in them, the daman is valid. This is the view of the Malikis (Hashiyat al-Dasuqi 3/514), the Shafi'is (Rawdat al-Talibin 4/488), the madhhab of the Hanbalis (al-Mughni 6/318; al-Insaf 5/200; al-Rawd al-Murbi' 6/438; al-Kafi 5/200; Kashshaf al-Qina' 3/370), and a view of the Hanafis. In Majma' al-Damanat (p. 588) it is related: a man says to the depositary: "If you destroy the deposit of another or deny it, I answer for it to him": this is valid; and he said (p. 604): likewise for every entrusted thing. This indicates that they hold its daman valid if he transgresses in it, and Allah knows best. The reason: if he guarantees without transgression, the daman is not valid, for the item is not guaranteed against its holder: likewise against his guarantor; and if he guarantees with transgression, the daman is valid, for the item then becomes guaranteed against its holder, like the usurped and the defective item (al-Mughni 6/318; al-Rawd al-Murbi' 6/438).
Everything guaranteed only by transgression or negligence: its daman is not valid, for the principal, the holder, is not a guarantor; one cannot build upon what is not established. But the transgression is valid, for when the depositary transgresses, trust is withdrawn from him and he becomes a guarantor in all circumstances: guaranteeing the transgression is therefore valid. An example: a man deposits with another a deposit, say one thousand riyals; afterwards the depositary gives rise to doubt about his trustworthiness; another man steps forward and says: "I answer for the deposit." The daman here is not valid, for the principal is not a guarantor. But if he says: "I answer for you if he transgresses or is negligent," this is valid: in the case of transgression or negligence the depositary becomes a guarantor, and the daman is then valid. It is also known that the surety's obligation follows the principal's obligation: if the depositary is not a guarantor for the deposit, the kafala is not valid in this case, for nothing is imposed on the surety except what is imposed on the principal. The difference between transgression and negligence: transgression is doing what is forbidden, negligence is leaving what is obligatory (Sharh al-Mumti' 4/146).
Second opinion: the daman of entrusted items is not valid without restriction, neither the daman of their delivery nor that of their substitute if they perish. This is a view of the Hanbalis (al-Insaf 5/200; al-Kafi 2/230; al-Mubdi' 4/256), by the generality of the Prophet's words (peace be upon him): "The surety is liable" (its takhrij cited earlier), the bearing of which is that it is general and therefore covers the daman of entrusted items.
Third opinion: if the item is an entrustment not requiring delivery, like deposits and the wealth of partnerships and mudarabas, its daman is not valid without restriction, neither the daman of its delivery nor of its substitute if it perishes. If it is an entrustment requiring delivery, like the loan for use and the rented item in the hand of the hired person, only the daman of its delivery is valid, if it exists; if it perishes, nothing is owed by the guarantor. This is the view of the Hanafis (Bada'i' al-Sana'i' 7/367; Fath al-Qadir 7/199; Hashiyat Ibn Abidin 5/443; Majma' al-Damanat p. 591, 592; Tabyin al-Haqa'iq 4/147). The loan for use is, according to them, an entrustment in the hand of the borrower, unlike the Shafi'is and Hanbalis, and with distinction among the Malikis. The proof of the invalidity of the daman of an item not requiring delivery: the item is not guaranteed at all against the principal, so its daman is not valid, for there is no daman except for what is due. The proof of the validity of the daman of delivery alone, if the item exists and it is an entrustment requiring delivery: its delivery is due against the principal, so the kafala of its delivery is valid; if it perishes, nothing is imposed on the guarantor, for it is an entrustment and the entrustment perishes without liability. The entrustment requiring delivery means the holder undertakes to strive to deliver it to its owner (Bada'i' al-Sana'i' 7/367; Hashiyat Radd al-Muhtar 5/443; Fath al-Qadir 7/198; see al-Rawd al-Murbi' 6/438).
Second condition: that the guaranteed item be a binding debt (lazim) or one tending to become binding. The binding debt is the established debt whose extinguishment by rescission or annulment is precluded (Hashiyat Ibn Abidin 5/437; al-Mughni 6/316). Examples: the price of the merchandise before its taking of possession, and the mahr before consummation of the marriage (Rawdat al-Talibin 4/249; al-Mughni 6/316). The debt tending to become binding is like the price of the sale during the option period (khiyar). The extinguished debt is one that is not extinguished except by its payment to its holder or by its remission, when the creditor grants a forbearance standing in for remission by permitting what leads to extinguishment: an example is the wife's mahr before consummation, which is extinguished by her consent to the adult son of her husband kissing her with desire; she does not truly discharge him, but by this act she discharges him legally (Hashiyat Ibn Abidin on al-Durr al-Mukhtar 5/302; al-Mughni 6/316).
The adherents of the four madhhabs explicitly required that the debt be binding for the validity of the daman, and likewise validated the daman of what tends to obligation (Bada'i' al-Sana'i' 7/372; Hashiyat Ibn Abidin 5/303, 304; Tabyin al-Haqa'iq 4/153; al-Ma'una 2/890; al-Taj wa'l-Iklil 5/99; Manh al-Jalil 6/206; Rawdat al-Talibin 4/249; al-Mughni 6/316). Two issues fall under this condition: the first issue, the daman of the ju'l; the second issue, the daman of the salam payment.
The ju'l is hiring for a benefit whose attainment is presumed, like contracting with the physician for the cure, or with the seeker of the runaway slave; for example: "Whoever returns my lost item shall have a dinar" (Bidayat al-Mujtahid 2/326). It has also been said: the obligation of a known compensation for a known work, or an unknown but bounded one (Nihayat al-Muhtaj 5/465).
To begin with, we say: the daman of the ju'l in the ju'ala after the completion of the work is valid without disagreement, for it is binding; the disagreement concerns the daman of the ju'l before the work has begun, or during the work before its completion. Two opinions.
First opinion: the daman of the ju'l payment before the work has begun is valid. This is the view of the Malikis (Hashiyat al-Dasuqi with Sharh al-Kabir 3/515; it is related in al-Mudawwana, chapter of the ju'l, 4/467: "What do you say if I say to a man: sell me this garment and you shall have a dirham: there is no harm in that according to Malik"; see al-Taj wa'l-Iklil 5/99; Manh al-Jalil 6/206; Bidayat al-Mujtahid 2/409), the Hanbalis (al-Mughni of Ibn Qudama 6/316; al-Mubdi' 4/256; Kashshaf al-Qina' 3/371), and a view among the Shafi'is (Rawdat al-Talibin 4/250; al-Majmu' 13/183; al-Muhadhdhab 1/340). They relied on the word of Allah the Most High:
"They said: we are missing the cup of the king; and for whoever brings it is the load of a camel: upon me be its responsibility"
Surah Yusuf, 72
The bearing of the verse: the crier guaranteed the load of the camel to the one who would bring the measure, while he had not yet brought it nor done the work. Wisdom requires it and need calls to it, for there may be no one to do the work voluntarily: need thus calls to it.
Al-Qurtubi (may Allah have mercy on him) said: some of the scholars said: in this verse is a proof of the permissibility of the ju'l, permitted out of necessity: what is tolerated of ignorance in it is not tolerated elsewhere. If a man says: "Whoever does such a thing shall have such a thing," it is valid (Tafsir al-Qurtubi 5/209).
Ibn Qudama (may Allah have mercy on him) said, after citing the verse: and because the ju'l tends to become binding when the work is done, and because the daman is for the wealth, not the work (al-Mughni 6/316; see Matalib Uli al-Nuha 9/77; al-Majmu' 13/183; Bidayat al-Mujtahid 2/409).
Second opinion: the daman of the ju'l before the work has begun is not valid. This is a view of the Shafi'is (Rawdat al-Talibin 4/250; al-Majmu' 13/182). Al-Shirazi (may Allah have mercy on him) said in al-Muhadhdhab: the daman of the ju'l in the ju'ala is not valid, for it is a non-binding debt whose daman is not valid, like the debt of the scribe (al-Muhadhdhab 1/340; al-Majmu', commentary on al-Muhadhdhab, 13/182).
The salam is delivering an immediate compensation for a described item owed in the dhimma at a term; it is called salam and salaf (al-Mughni 4/185). The daman of the salam is guaranteeing the debt or the described item in the dhimma. I have not found, and Allah knows best, anyone who opposed the daman of the salam payment except a narration related from Imam Ahmad (may Allah have mercy on him), as appears in al-Mughni and al-Insaf. Those who held the daman of the salam valid: the Hanafis (Hashiyat Ibn Abidin 5/414), the Malikis (al-Mudawwana, chapter of the kafala in the salam, 4/61, 5/272), the Shafi'is (al-Majmu' 13/182), and the Hanbalis according to the other narration (al-Mughni 6/317; al-Insaf 5/122).
It is said in al-Insaf (5/122): is the pledge and the surety for the delivered object permitted? Two narrations: one: it is not permitted, and it is the madhhab. The other: it is permitted, transmitted by Hanbal. Al-Zarkashi said it is the correct one, and Ibn Qudama (may Allah have mercy on him) also preferred it: the daman of the salam is valid according to one of the two narrations; according to the other it is not, for it would lead to taking possession of the delivered object from other than the one to whom it is delivered: it is therefore not permitted, like the hawala with respect to it. Then he said: the first is sounder, for it is a binding debt whose daman is valid, like the wage and the price of the sale (al-Mughni 6/317).
Al-Shirazi (may Allah have mercy on him) said: the daman of every debt is valid: the price, the wage, the compensation of the loan, the debt of the salam, the indemnity of the crime (arsh), and the fine for the destroyed item; for the daman is a proof by which the right is recovered: it is therefore valid for every binding debt, like the pledge (al-Muhadhdhab 1/340; Takmilat al-Majmu' 13/181).
Third condition: that the guaranteed item be known. Upon this condition is built the ruling on the daman of the unknown: is it valid or not? The daman of the unknown is to say: "I guarantee you what so-and-so owes you, or what he acknowledges to you," and the like, without knowing its amount. The scholars differed on the daman of the unknown, as they differed on the daman of what is not yet due, in two opinions.
First opinion: the daman of the unknown is valid. This is the view of the Hanafis (Bada'i' al-Sana'i' 7/373; Fath al-Qadir 6/298; Ikhtilaf al-Iraqiyyin in the margin of al-Umm 3/205; Majma' al-Damanat p. 586), the Malikis (Bidayat al-Mujtahid 2/409; al-Ma'una of the Malikis 2/888; Ahkam al-Qur'an 1085), the Hanbalis (al-Mughni 6/314; al-Ifsah 2/206), and al-Shafi'i in the old (al-Majmu' 13/104; matn Abi Shuja' 1/135; Mughni al-Muhtaj 3/167; Ikhtilaf al-Ulama 1/444). They relied on the word of Allah the Most High:
"And for whoever brings the load of a camel, upon me be its responsibility"
Surah Yusuf, 72
Ibn Qudama (may Allah have mercy on him) said: the bearing of the verse is that the load of the camel is unknown and varies with the camel (al-Mughni 6/315). Added to this is the generality of the Prophet's words (peace be upon him): "The surety is liable": a general expression covering the daman of the known and the unknown. And because the daman is the obligation of a right in the dhimma without exchange: it is valid for the unknown, like the vow and the acknowledgment (al-Mughni 6/315).
The shaykh of Islam Ibn Taymiyya (may Allah have mercy on him) said: the daman of the unknown is permitted according to the majority of scholars, like Malik, Abu Hanifa, and Ahmad, and the Book indicates it: "And for whoever brings the load of a camel, upon me be its responsibility" (Surah Yusuf, 72) (al-Fatawa 29/459).
Ibn al-Humam, the Hanafi (may Allah have mercy on him), said: the kafala concerning wealth is permitted according to us, even if the wealth guaranteed is of unknown amount. Malik, Ahmad, and al-Shafi'i in the old said this; in the new, al-Shafi'i, along with Ibn Abi Layla, al-Layth, and Ibn al-Mundhir, said: it is not permitted concerning the unknown, for it is the obligation of unknown wealth, which is therefore not permitted: it must be specified, because of the mutual exchanges in substituting wealth. But the kafala is a contract of donation, like the vow, aiming only at the reward of Allah or relieving the beloved: one does not mind what one binds oneself to in it. The proof is that he committed himself without specifying the amount when he said: "Whatever he owed is on me": its construction was expansiveness, and ignorance was tolerated in it (Fath al-Qadir 7/181).
Second opinion: the daman of the unknown is not valid. This is the view of al-Shafi'i in the new (al-Majmu' 13/104; matn Abi Shuja' 1/135; Mughni al-Muhtaj 3/167; Ikhtilaf al-Ulama 1/444). Al-Shirazi (may Allah have mercy on him) said: the daman of the unknown is not permitted, for it is the establishing of wealth in the dhimma by a contract for a human being: it is not permitted with ignorance, like the price in the sale (al-Muhadhdhab 1/340; Takmilat al-Majmu' 13/148).
Al-Shafi'i Taqi al-Din Abu Bakr (may Allah have mercy on him) said: know that the disagreement over the validity of the daman of the unknown follows the disagreement over the validity of discharge from the unknown, and the disagreement rests on whether discharge is a transfer of ownership or a release. If we say transfer of ownership, which is the sound view, discharge from the unknown is not valid; if we say release, the release of the unknown is valid. The fruit of the disagreement appears if someone backbites another and then says to him: "I belittled you by my backbiting, make me lawful again," and he does so without knowing what was said about him: is he discharged? Two views: one, yes, for it is a release; the other, no, for what is intended is his satisfaction, which cannot be attained through the unknown. Know also that if we do not validate the daman of the unknown, like: "I guarantee part of what so-and-so owes you, from one dirham to ten," there is disagreement, and the sound view is validity, the uncertainty (gharar) having vanished by the mention of the limit. What is then binding upon him? Views held: according to al-Rafi'i, ten; on the soundest view of al-Nawawi, nine; it has also been said eight (Kifayat al-Akhyar 1/498).
Second issue: the kafala by the person of the detainee and the absent person: is it valid? The Malikis (Bidayat al-Mujtahid 2/408, 409; Balghat al-Salik 3/286; Mawahib al-Jalil, commentary on Mukhtasar Khalil, 5/48, 49, 114), the Shafi'is (Rawdat al-Talibin 4/254; Mughni al-Muhtaj 3/170), and the Hanbalis (al-Mughni 6/344; Kashshaf al-Qina' 3/376) hold valid the kafala by the person of the detainee and the absent person; Abu Hanifa forbade it (Hashiyat Ibn Abidin 5/428).
Ibn Rushd, the Maliki (may Allah have mercy on him), said: the majority hold valid the kafala of the detainee and the absent, not Abu Hanifa (Bidayat al-Mujtahid 2/408, 409). Ibn Qudama (may Allah have mercy on him) said: the kafala by the person of the detainee and the absent is valid; Abu Hanifa said: it is not (al-Mughni 6/344).
The adherents of the three madhhabs relied on what Ibn Qudama (may Allah have mercy on him) said: every proof valid in the presence is valid in the absence, and detention is like the pledge and the daman. And because detention does not prevent delivery: the detainee can be delivered by the order of the ruler or of the one who imprisoned him, then returned to detention under both rights; as for the absent person, one goes to him and brings him back, if the absence is not severed, meaning one knows news of him; otherwise, what is due from him is due (al-Mughni 6/344).
Al-Nawawi (may Allah have mercy on him) said: a branch: the kafala by the person of the absent and the detainee is permitted, even if attaining the purpose is impossible at present, just as it is permitted for the destitute to guarantee wealth, for the attainment of the purpose is expected even if difficult; with no difference between his being in a place where his presence at the session of the judge is required or not, to the point that if he obtained permission and then moved to a land in which there is a judge, or beyond the racing distance, the kafala concluded afterwards is valid, and he must attend with him by reason of that permission, even beyond the distance of the qasr (Rawdat al-Talibin 4/254; Mughni al-Muhtaj 3/170).