Islamic Fiqh > Financial transactions > Financial contracts in Islam > Financial contracts, part 3
Contents
Updated on 26 September 2026 at 7:12 PM
This third part of the chapter on the general principles of financial transactions covers interdiction (hajr), amicable settlement (sulh) and its divisions, debt transfer (hawalah), the benevolent loan (qard), then guaranty (kafalah) and surety (daman): definitions, divisions, the difference between the two notions and the evidence of their legality. The positions of the four schools are reported with their classical references, along with the hadiths with their sources and grades.
It is the sounder view: the definite article in the dispositions mentioned in the first definition indicates total inclusion, which is realized only in the insane, not in the minor or the prodigal (safih), for each of them may validly perform some property dispositions: the prodigal may validly manage his wealth and make a bequest, the minor may validly give a gift and grant permission to enter his home, and so on (al-Dibaj (2/233), al-Shibramallisi's gloss on Nihayat al-muhtaj (4/405), al-Jamal's gloss on Sharh al-Manhaj (3/334)).
The Hanbalis say: hajr is preventing a person from disposing of his wealth, whether the prevention comes from the Law, as with the minor, the insane and the prodigal, or from the ruler, as when he prevents a buyer from disposing of his wealth until he pays the price that has fallen due (al-Mughni (4/295), Kashshaf al-qina' (3/486), Sharh muntaha al-iradat (3/437), al-Rawd al-murbi' (2/47), Manar al-sabil (2/140)).
The legality of hajr is established by the Book, the Sunnah and consensus. As for the Book, it is the word of Allah:
'And if the debtor is of weak understanding or weak, or unable to dictate, then let his guardian dictate with justice.'
Surah al-Baqarah, 282
Imam al-Shafi'i (may Allah have mercy on him) interpreted the prodigal (safih) as the squanderer (mubadhdhir), the 'weak' as the minor or the old man of impaired mind, and the one unable to dictate as the one overpowered in his mind. Allah informed that their guardians stand in their place: hajr is thus established over them (Mughni al-muhtaj (3/108)). Follow His words: 'And do not give the prodigals your wealth which Allah has made for you a means of support; provide for them and clothe them and speak to them a kind word,' and: 'Test the orphans until they reach marriageable age; then if you perceive in them sound judgment, deliver their wealth to them.'
'And do not give the prodigals your wealth which Allah has made for you a means of support; provide for them out of it and clothe them and speak to them a kind word.'
Surah an-Nisa, 5
Allah forbade handing the prodigals their wealth, because doing so exposes it to loss; the verse therefore establishes preventing them from disposing of it, which is precisely the meaning of hajr over them. The wealth is attributed to the guardians because they are the ones in charge of it and managing it.
'Test the orphans until they reach marriageable age; then if you perceive in them sound judgment (rushd), deliver their wealth to them.'
Surah an-Nisa, 6
Allah commanded testing orphans in keeping their wealth by handing them some of it, to know their competence in dispositions; if sound judgment appears in them before puberty, their wealth is handed over. The text therefore establishes that their wealth is not delivered before sound judgment and that they are interdicted from it. The hajr of the insane is established by way of indication once it is established over these two.
As for the Sunnah:
The Prophet (peace and blessings be upon him) placed the wealth of Mu'adh ibn Jabal under interdiction and sold it in payment of a debt he owed.Weak hadith, related by al-Tabarani in al-Awsat (1/146), al-Bayhaqi in al-Kubra (11041), al-Daraqutni (523) and al-Hakim in al-Mustadrak (2/67)
The scholars unanimously agreed on the permissibility of hajr over the minor and the insane.
Among the merits of hajr is that it contains compassion for Allah's creatures, which is one of the two poles of religion, the other being the magnification of Allah's command. Allah created mankind and distributed intellects among them unequally.
Sulh serves to cut off dispute and discord; that is why lying is deemed good in it (al-Mughni (4/308), al-Mubdi' (4/278), al-Incaf (5/234), Kashshaf al-qina' (3/455-456), Sharh muntaha al-iradat (3/407), Kashf al-mukhaddarat (1/427), al-Matla' (1/250), Matlab uli al-nuhah (3/334), al-Rawd al-murbi' (2/37)). It is of several kinds: settlement between Muslims and disbelievers; between the Imam and the rebels; between the two spouses when discord is feared between them; and settlement between two disputants over property, which is the subject of this book.
Sulh is permitted by the Book, the Sunnah and consensus. By the Book, the word of Allah:
'And settlement is best.'
Surah an-Nisa, 128
And His word:
'No good is there in much of their private conversation, except for one who commands charity, or what is right, or reconciliation between people.'
Surah an-Nisa, 114
And His word:
'And if a woman fears from her husband contempt or evasion, there is no sin upon them if they make terms of settlement between them in agreement.'
Surah an-Nisa, 128
And His word:
'And if you fear dissension between the two, send an arbitrator from his people and an arbitrator from her people. If they both desire reconciliation, Allah will cause it between them.'
Surah an-Nisa, 35
And His word:
'And if two factions among the believers fight, make settlement between them. But if one of them oppresses the other, then fight against the one that oppresses until it returns to the ordinance of Allah. And if it returns, then make settlement between them in justice and act justly. Indeed, Allah loves those who act justly.'
Surah al-Hujurat, 9
By the Sunnah:
'Settlement is permitted between Muslims, except a settlement that renders unlawful what is lawful or lawful what is unlawful.'Authentic hadith, related by Abu Dawud (3594) and Ibn Hibban (5091)
The settlement that renders lawful what is unlawful is, for example, settling over wine or the like, or exchanging dirhams for more dirhams; the one that renders unlawful what is lawful is, for example, settling with one of two wives that he will not touch the other, or settling with his wife to forbid his slave woman to himself: such is the settlement that renders unlawful the lawful or lawful the unlawful, and it is void (al-Mabsut (6/62), Mughni al-muhtaj (3/127)).
Likewise the hadith of Ka'b ibn Malik, who was claiming a debt from Ibn Abi Hadrad at the time of the Messenger of Allah, in the mosque:
Their voices rose until the Messenger of Allah heard them while in his house. He came out to them, lifted the curtain of his room, and called: 'O Ka'b!' He answered: 'At your service, O Messenger of Allah.' He gestured with his hand to waive half, and Ka'b said: 'I have done so, O Messenger of Allah.' The Messenger of Allah said: 'Stand and pay him the rest.'Related by Bukhari (2563) and Muslim (1558)
These verses and the two hadiths contain reconciliation between people over property. As for consensus, the scholars unanimously agreed on the permissibility of sulh in principle, and many of them reported this agreement. Imam al-Mawardi (may Allah have mercy on him) said: 'As for agreement, it is the consensus of the Muslims on the permissibility of sulh and its sanction by the Law' (al-Hawi al-kabir (6/366)). Ibn Qudamah said: 'The imams agreed on its permissibility' (al-Mughni (4/308)). Ibn Rushd said: 'The Muslims agreed on its validity upon acknowledgement' (Bidayat al-mujtahid (2/221)). Ibn Bazizah said: 'Settlement upon acknowledgement is permitted by the consensus of the Muslims' (al-Bayan (6/242)). Al-'Imrani said: 'The ummah agreed on its permissibility' (Rawdat al-muntasibin (2/1192)).
Sulh is, in itself, a recommended matter; it may become obligatory when its benefit is specified, and forbidden or disliked when it entails a corruption that must be averted or that prevails. Ibn Rushd said: 'There is no harm in the judge directing the two disputants toward settlement as long as it has not become clear to him that the right belongs to one of them, following the word of Umar to Abu Musa (may Allah be pleased with them both): Strive for settlement as long as the resolution of judgment has not become clear to you. If one of the two refuses, he does not insist to the point of implying compulsion; he only directs them to settlement while the right has not become clear to him; once it becomes clear, he executes the judgment in favor of the holder of the right' (al-Mukhtasar al-fiqhi (10/124), al-Taj wa-l-iklil (4/99)).
Sulh is, in origin, of three types:
Some of these types are unanimously permitted, others are disputed. Settlement with acknowledgement: a man claims a debt or an object against another; the defendant acknowledges it, then settlement is sought; it is then permitted by the agreement of the scholars, valid, and the effects and rulings of sulh attach to it, because it falls a fortiori within the evidence of its legality. Ibn Rushd said: 'The Muslims agreed on its validity upon acknowledgement' (Bidayat al-mujtahid (2/221)); Ibn Bazizah said: 'Settlement upon acknowledgement is permitted by consensus of the Muslims' (Rawdat al-muntasibin (2/1192)).
This settlement is of two kinds: settlement by waiver (ibra') and settlement by exchange (mu'awadah). If it concerns part of the claimed object, it is a partial waiver, as when one acknowledges a house and then settles for half of it: that is a gift. If it concerns an object other than the one claimed, as when a house is claimed against one who acknowledges it and settles for a specified item such as a garment, it is a sale governed by the rules of sale. If it concerns a benefit, such as dwelling in a house or the service of a slave for a known term, it is a lease governed by its rules.
The jurists of the four schools agreed on the validity of these two kinds, waiver and exchange, though some details differ from one school to another. Here is the detail:
The Hanafis say: when settlement occurs with acknowledgement, whatever applies to sales applies to it when it is wealth for wealth, because it carries the meaning of sale, namely the exchange of wealth for wealth between the two contracting parties by mutual consent. Pre-emption (shuf'ah) attaches to it when it is real estate, the object is returned for defect, the rights of inspection and stipulated option are established in it, capacity to deliver the counter-value is required, and ignorance of the counter-value voids it, for sale is voided by the ignorance that leads to contestation. The counter-value alone is subject to this because its ignorance is what leads to contestation in settlement: what is settled from need not be delivered, so its ignorance does no harm, unlike what is settled for. Hence, if the counter-value cannot be delivered, the settlement is void, while the thing settled from would not be void for that reason; likewise the counter-value is voided by ignorance of its term if it is deferred.
If what is settled from and what is settled for are both appraised goods (qimi), or one is fungible (mithli) and the other is not, settlement with acknowledgement is valid and follows the ruling of sale. If both are fungibles of different genera and the counter-value is received in the session of the settlement, it is valid and follows the ruling of sale. As for settlement with acknowledgement upon the very genus claimed, it has three cases:
If one settles from wealth for benefits, the rules of lease apply, because it carries the meaning of lease, namely letting benefits against wealth, and contracts are judged by their meanings. The term must be specified, and the settlement is voided by the death of either party during the term, because it is a lease. According to Muhammad, if death occurs before enjoyment, the claimant resumes his claim; if he enjoyed half or a third of the term, his claim falls by that amount and he resumes for the remainder, Muhammad having made settlement like a lease. Abu Yusuf said: settlement differs from lease; if the defendant dies, the settlement becomes void and the claimant may recover from the estate; likewise if the claimant dies, the settlement becomes void for the service of a slave, the dwelling of a house and the cultivation of land, and his heirs stand in his place in fulfilment; it becomes void for riding an animal and wearing a garment, and his heirs do not stand in his place, for people differ in this. If the thing from which the benefit was settled perishes or falls due, the settlement becomes void by consensus. Its form: a man claims something against another who acknowledges it; they then settle for the dwelling of a house for a year, the riding of a known animal, the wearing of his garment or the cultivation of his land for a known term: such settlement is permitted, it has the meaning of lease and its rules apply; every benefit whose acquisition is permitted by a lease contract is permitted by a settlement contract (al-Jawharah al-nirah (4/36-37), al-Ikhtiyar (3/5-6), al-Lubab (1/590), Mukhtasar al-Waqayah (2/309), al-Hidayah (3/192), al-'Inayah (12/57), al-Fatawa al-Hindiyyah (4/230), Durr al-hukkam (4/28)).
The Malikis say: settlement is of three categories: sale, lease or gift. What is given in exchange, if a thing, is a sale; if a benefit, a lease; and if part of what is claimed, a gift. These three categories apply to settlement with acknowledgement, with denial and with silence: in these three the settlement is permitted so long as it does not lead to the unlawful; if it does, it is unlawful, by the word of the Prophet (peace and blessings be upon him): 'Settlement is permitted between Muslims, except a settlement that renders unlawful what is lawful or lawful what is unlawful' (authentic hadith, related by Abu Dawud (3594) and Ibn Hibban (5091)).
Settlement is sometimes upon other than the claimed object and sometimes upon part of it. If it is upon other than what is claimed, such as settling for cash or for goods or food different from what was claimed, there is no disagreement: it is an exchange-sale, for it is like one who sells goods for cash, or for goods that differ, and likewise food. The conditions of sale are required in it, with the absence of its impediments: being pure, known, beneficial, deliverable, not a food of exchange, and the rest of what has been mentioned. If it is upon part of what is claimed, such as settling for part and waiving the rest, it is a gift of the waived part and a waiver of that part by the claimant; the gift binds the giver because the object is already in the recipient's possession, so the recipient's acceptance during the donor's lifetime is required. If the exchange is a benefit, it is a lease of what is given in exchange, and its conditions apply (Tuhfat al-muhtaj (4/180), al-Sharh al-kabir (4/503-504), Mawahib al-Jalil (7/6), al-Taj wa-l-iklil (4/99), Sharh Mukhtasar Khalil (6/2-3), Sharh Mayyarah (1/227), al-'Adawi's gloss (2/459), Balghat al-salik (3/256-257)).
The Shafi'is say: settlement with acknowledgement is of two kinds: exchange and waiver. The first, settlement of exchange, so named because the holder of the right substituted for his right something else he accepted, an object or a benefit: it is the settlement upon other than the claimed object, as when a house is claimed against one who acknowledges it and settles for a slave, an animal or a garment: its ruling is that of the sale even if concluded with the word 'sulh', for the meaning is considered, and all the rules of sale attach to it: return for defect, pre-emption, prohibition of disposal before taking possession, receipt in the session if both items share the same cause of riba, such as settling silver for gold, and equality in the lawful measure if they are of one genus, such as gold for gold or wheat for wheat; it is voided by gharar, ignorance and corrupt conditions, like sale. If settlement runs from the claimed object to a benefit in something other than it, such as settling the house for the use of his car for a year, it is a lease contract and the rules of lease attach, for it carries its meaning. If it concerns the benefit of the claimed object itself, such as settling that the claimant dwell in the claimed house for ten years then return it, it is a loan for use ('ariyah) and its rules attach.
If he settles for part of the claimed object, as one who settles for half or a third of the claimed house, or of two shares of spoils, it is a gift of part of the claimant's right to the one who holds it; acceptance and a time enabling possession are required. This is valid with the word 'gift', with what carries its meaning, and with the word 'sulh'; but this settlement is not valid with the word 'sale', because the whole object belongs to the acknowledger: were he to sell it by part of it, he would have sold the thing by part of it, and that is void. And if he settles the claimed house for dwelling in it for a year, it is a loan of the house, revocable whenever he wishes; on the sounder view he deserves no rent for the elapsed period, for it is a loan; on another view he does deserve it, because the defendant offered in return the withdrawal of his hand from it, a corrupt compensation, and he then repays at the rent of the similar. And if he settles dwelling in it for a year against the benefit of his slave for a year, it is like leasing a house for the service of a slave for a year.
The second kind is settlement of waiver (ibra'), called the settlement of reduction (al-hatitah) because the holder of the right cut off a part from the defendant. Its form with the word 'sulh' is to say: 'I settle with you on the thousand I hold against you for five hundred': it is a waiver of part of a debt with the word 'sulh', valid by the hadith of Ka'b ibn Malik mentioned earlier (Bukhari (2563), Muslim (1558)). It is valid also with the words 'ibra'' (waiver) and 'hatf' (cutting) and the like, such as 'wadi'' (relinquishment) and 'isqat' (annulment), and with the word 'sulh' on the soundest view. Acceptance is required, because the utterance by its very nature demands it, as is receiving the five hundred in the session; specifying them is not required within the settlement itself.
Settling an immediate debt for an equal deferred one, of the same genus, quantity and quality, or the reverse, that is, settling a deferred debt for an equal immediate one, annuls the settlement; if he pays the deferred debt in advance, the payment is valid and the term falls away, because discharge and fulfilment come from those entitled to them. Settling ten due for five deferred frees him of five and five remain due, for he granted by cutting a part and promised deferral of the remainder; a promise does not bind, and the cutting is valid. The reverse, settling ten deferred for five due, annuls the settlement, for the attribute of falling due cannot be attached, and the other five were left only in return for it; when falling due is not realized, the relinquishment is not valid; validity and reduction follow falling due and deferral (al-Wasit (4/183, 186), Rawdat al-talibin (3/395, 399), al-Bayan (6/242, 245), Mughni al-muhtaj (3/127, 131), Nihayat al-muhtaj (4/439, 444), al-Najm al-wahhaj (4/433, 438), al-Dibaj (2/250, 254), the gloss of Qalyubi and 'Umayrah on Kanz al-raghibin (2/769-770), al-Bajuri's gloss on Sharh Ibn al-Qasim (1/802, 804)).
The Hanbalis say: if the claimant acknowledges a debt or an object and then settles on part of the debt or of the claimed object, it is a gift valid with its own word, for a person is not prevented from waiving his right or part of it. One who intercedes with the creditor for the debtor commits no sin: the Prophet (peace and blessings be upon him) spoke to Jabir's creditors, who waived half (authentic hadith, related by Ahmad (3/313)), and spoke to Ka'b ibn Malik, whose debt was halved (Bukhari (457), Muslim (1558)). But this is valid only without the word 'sulh': with that word it would be settling part of one's property for a part, meaning 'settle with me on the hundred for fifty', that is, 'sell it to me', which is not permitted, for it is riba, diminution of a right and consuming wealth unjustly; nor is it valid if he withholds his right entirely without it. It is also valid only if no exchange is stipulated, by saying: 'I waive for you or gift you on condition that you give me such and such,' and he accepts: this is not valid, for it implies exchange, as if he exchanged part of his right for a part, without the gift or waiver being tied to a condition, which is not valid. It is further valid only if the claimant does not withhold his right without it; otherwise it is void, for it is consuming the wealth of another unjustly.
If he settles for an object other than the one claimed, it is a sale valid with the word 'sulh' like other exchanges, and the rules of sale attach as stated. Thus, if he settles a debt for an object sharing the same cause of riba, receipt of the compensation in the session and something in liability are required, and the settlement is void if they separate before receipt, for that would be selling a debt for a debt, which is prohibited. This has three kinds: acknowledging cash and settling for cash: that is a currency exchange (sarf) with its conditions, receipt in the session being required; acknowledging cash and settling for goods, or the reverse: that is a sale in which all its rules attach; acknowledging cash or goods and settling for a benefit, such as dwelling in a house or service: that is a lease whose rules attach, voided by the ruin of the house like other leases; if the ruin occurs before any enjoyment, the contract is rescinded and he takes back what he settled from, of debt or object; if it occurs after partial enjoyment, it is rescinded for the remainder and he takes back in proportion to the remaining term.
If the seller settles against a defect of the sale for a thing, that is, an object such as a debt, or a benefit, such as dwelling in a specified house, the settlement is valid, for taking compensation for a defect of the sale is permitted. If what was settled upon proves not to be a defect, such as the swollen belly of a slave woman thought pregnant, whose absence is discovered, or the defect quickly disappears, without cost or loss of benefit to the buyer, such as a divorced wife or a healed patient, he takes back what he gave; for the missing part of the sale returns to him without harm, as if it had not been, and the seller takes back what he received in settlement, for it appears the buyer had no entitlement to it, the defect being absent at first or gone afterward without harm attaching to him.
Settlement is also valid over a debt or object whose knowledge is impossible, such as two men between whom are dealings and accounts long past, neither knowing what he owes the other, by what is related of the Prophet (peace and blessings be upon him), who said to two men disputing over inheritances worn away between them:
'Now that you have done what you have done, divide it, seek the right, then draw lots, then part as reconciled men.'Hasan hadith, related by Abu Dawud (3586)
For it is the waiver of a right, valid in the unknown out of necessity, and so that it does not lead to loss of wealth or the indefinite encumbrance of liability: there is no way out except by it. What can be known does not fall under it.
If he says: 'Acknowledge my debt and give me such and such of it,' and the defendant acknowledges, the debt binds him: there is no excuse for one who acknowledges, for he has acknowledged a right whose denial is unlawful for him; but he is not bound to give, for the acknowledgement is obligatory upon him without compensation (al-Kafi (2/206), al-Furu' (4/203), al-Mubdi' (4/278, 290), al-Incaf (5/242), Kashshaf al-qina' (3/455, 462), Sharh muntaha al-iradat (3/408, 415), Kashf al-mukhaddarat (1/427), al-Matla' (1/250), Matlab uli al-nuhah (3/335, 339), al-Rawd al-murbi' (2/37, 41), Manar al-sabil (2/121, 125)).
The issue: a man has a deferred debt against another and says to him: 'Settle with me for part of it, paid now,' that is: 'Hand me part of it now and I waive the rest.' Example: a man has twenty dinars against another due in a year, from a sale or a loan; half the year having passed, the creditor needs it and asks his debtor to pay, but he refuses until the term; the creditor says: 'Give me ten now and I cancel the ten that remain.'
The majority of jurists, the Hanafis, Malikis, Shafi'is and the Hanbalis of the school, hold that settling the deferred debt for a due part is not valid: he gives the amount he waives as compensation for accelerating what he owes, and the sale of present possession for deferment is not allowed; it resembles the increase with deferral whose prohibition is agreed upon, the resemblance being that time was made a portion of the price in both positions: there, when the term increased, his compensation increased; here, when the term was cut from him, the price was cut in return. In accelerating a part and waiving the rest, he has sold the term for the amount waived, and that is precisely riba, as selling the term by saying: 'Increase my debt and I extend your term.' What difference is there between saying 'the term is reduced and I reduce the debt,' and saying 'the term is extended and I increase the debt'?
They cite the report of al-Miqdad ibn al-Aswad:
Al-Miqdad said: 'I lent a man a hundred dinars; then my quiver went out in an expedition sent by the Messenger of Allah, and I said to him: Advance me ninety dinars and I cancel ten dinars. He agreed. That was mentioned to the Messenger of Allah, who said: You have consumed riba, O Miqdad, and fed it to another.'Weak hadith, related by al-Bayhaqi in al-Kubra (11471)
And by what Imam Malik related in the Muwatta, in the chapter on riba in debt: 'Ubayd, client (mawla) of al-Saffah, said he sold a roll of cloth (bazz) belonging to the people of Dar al-Nakhlah on credit; wishing to leave for Kufah, they offered to remit part of the price if he were paid at once; he asked Zayd ibn Thabit, who said: 'I do not command you to consume this nor to act as agent for it.' And 'Abdallah ibn 'Umar was asked about a man owed a deferred debt by another, where the creditor would waive part and the other pay at once: he disliked it and forbade it. Zayd ibn Aslam related that riba in the Age of Ignorance was this: a man had a right against another for a term; when the term fell due, he would say: 'Will you pay, or increase?' If he paid, he took it; otherwise he increased his right and extended the term.
Malik (may Allah have mercy on him) said: 'The disapproved matter, without disagreement among us, is that a man be owed a debt by another for a term, the claimant waive part, and the debtor pay it in advance; that is, among us, like the one who defers his debt beyond its term and increases the right: that is precisely riba, without any doubt' (al-Muwatta (2/673)). Abu 'Umar ibn 'Abd al-Barr said: 'Malik has shown that whoever waives part of his right before its term falls due in return for hastening it is like the one who takes his right after its term with an increase from his debtor in return for the delay: the meaning common to both is that against the term dropped or added, a compensation is added for the one who extends the term and subtracted from the one who hastens the debt before its due time' (al-Istidhkar (6/488)). Muhammad ibn al-Hasan said in the Muwatta, after the report of Zayd ibn Thabit: 'Whoever is owed a debt by another for a term and asks that part be waived and the remainder hastened: that is not fitting, for he hastens little with much in debt, as if selling little in cash for much in debt.' That is the view of 'Umar ibn al-Khattab, Zayd ibn Thabit and 'Abdallah ibn 'Umar, and the view of Abu Hanifah (al-Muwatta (3/167)). Al-Nawawi (may Allah have mercy on him) said: 'Settling a deferred thousand for five hundred due is void' (Rawdat al-talibin (3/398); see also Mughni al-muhtaj (3/130), Nihayat al-muhtaj (4/444), al-Najm al-wahhaj (4/438), al-Dibaj (2/254)).
Zufar among the Hanafis, and Imam Ahmad in a narration chosen by Shaykh al-Islam Ibn Taymiyyah, together with a view reported from Imam al-Shafi'i by more than one scholar, hold that settling the deferred for a due part is valid, for the discharge of liability. Ibn 'Abd al-Barr reported in al-Istidhkar (6/490) that al-Shafi'i's view varied in this: sometimes he said there was no harm in it and deemed it an act of kindness, sometimes he said 'drop and hasten' is not permitted; Ibn al-Qayyim reported in Ighathat al-lahfan (2/11) that his companions hardly knew this view or transmitted it. And Imam Taqi al-Din al-Subki said in his Fatawa (1/340): 'If a condition runs with it, it is void; if no condition is stipulated, but he hastens without condition and waives the rest, each being pleased, it is permitted, and this is our school; the condition that voids is the concomitant one, and were it prior it would not void,' as al-Juri stated explicitly, this being the import of the explicit statements of all the companions elsewhere; reports of permission and prohibition have come, which can be resolved by this distinction.
For permissibility, the report of Ibn 'Abbas (may Allah be pleased with them both) is cited:
When the Prophet (peace and blessings be upon him) ordered the Banu al-Nadir expelled from Madinah, some of their people came and said: 'O Messenger of Allah, you have ordered their expulsion, yet people owe them debts that have not fallen due.' The Prophet said: 'Waive (the debts) and hasten (the payment).'Related by al-Hakim in al-Mustadrak (2325), al-Tahawi in Sharh mushkil al-athar (4277), al-Bayhaqi in al-Kubra (11467) and al-Daraqutni (3025)
This is the opposite of riba: riba involves increase in term and debt, and is pure harm to the debtor, while our question involves the discharge of the debtor's liability and the creditor's enjoyment of what is hastened to him: each gains benefit without harm, unlike the riba agreed upon. Matching the term with an increase is a path to the greatest harm: that one dirham become composed thousands and liabilities be encumbered without benefit; in 'drop and hasten,' the liability of one is discharged and the other benefits from the acceleration. The Lawgiver intends the discharge of liabilities from debts: the debtor has been called a prisoner, and the discharge of his debt releases him from captivity, the opposite of encumbering it with increase alongside patience.
On the detail of the Shafi'i school, Imam Taqi al-Din al-Subki sets out in his Fatawa the issue of 'drop and hasten': a man has a deferred debt against another; the debtor says to the creditor: 'Waive part of your debt and hasten the rest,' or the creditor says to the debtor: 'Hasten me part and I waive the rest'; this is either in a written debt or in other debts. For debts other than the written debt, Malik judges it void absolutely, with or without condition, because of suspicion (tuhmah): such is the rule of his school. Others say: if a condition runs with it, it is void; if none is stipulated, but he hastens without condition and waives the rest, each being pleased, it is permitted: this is our school; the voiding condition is the concomitant one, and were it prior it would not void. Al-Bayhaqi titled a chapter: 'One who is paid in advance less than his right before its due time and waives the rest, with the mutual pleasure of both.' The companions justified the prohibition when a condition runs with it by its resemblance to the riba of the Age of Ignorance, and they applied the ruling of the increase to the decrease (Fatawa al-Subki (1/340-341), and see: al-Mabsut (21/31), Sharh Ibn Battal (8/103), al-Kafi (1/324), Bidayat al-mujtahid (2/108), Sharh al-Zurqani (3/410), al-Qawanin al-fiqhiyyah (167), al-Sharh al-kabir (4/505), al-Sawi's gloss (7/398), Rawdat al-talibin (3/398), Mughni al-muhtaj (3/130), Nihayat al-muhtaj (4/444), al-Najm al-wahhaj (4/438), al-Dibaj (2/254), Ighathat al-lahfan (2/11, 13), al-Sharh al-kabir (5/4), al-Furu' (4/201), al-Mubdi' (4/279), al-Incaf (5/236), al-Rawd al-murbi' (2/38-39), Manar al-sabil (2/124-125)).
The second type is settlement with denial. Its form: a man claims a right against another, a debt (a thousand dirhams, for example) or an object (a rug or a house); the defendant does not acknowledge it and denies that the claimant has a right against him; the claimant then asks him to settle over what he claims, and the defendant hands him something as ransom for his oath, to end the dispute and spare himself the humiliation of contesting before the courts.
The jurists differed: is this settlement valid or void? The Shafi'is, Ahmad in one narration, and the Zahiris hold that settlement with denial is void: if a man claims a right against another and settles with him over his claim while he denies, the settlement is void, the claimant resumes his claim, and the defendant takes back what he gave, by the word of Allah:
'And do not consume one another's wealth unjustly.'
Surah al-Baqarah, 188
And settlement upon denial is a consuming of wealth unjustly, for no right has been established for him against which he might be compensated. And by the famous hadith of Abu Hurayrah and Zayd ibn Khalid al-Juhani:
A Bedouin came to the Messenger of Allah and said: 'O Messenger of Allah, judge between us by the Book of Allah.' His opponent said: 'My son was a hired laborer with this man and committed adultery with his wife. I was told: your son deserves stoning; so I ransomed my son with a hundred sheep and a slave woman. Then I asked the people of knowledge, who said: your son owes only a hundred lashes and a year of exile, and it is his wife who deserves stoning.' The Messenger of Allah said: 'I shall judge between you two by the Book of Allah: the slave woman and the sheep are returned to you, and your son receives a hundred lashes and exile for a year.' He mentioned the rest of the report: the Messenger of Allah annulled the settlement and dissolved it.Related by Bukhari (2725) and Muslim (1698)
Settlement upon denial renders unlawful the lawful and lawful the unlawful: if the claimant is lying, he has appropriated the defendant's wealth, which is unlawful; if truthful, his lawful wealth has been forbidden to him. It thus enters the Prophet's word: 'Settlement is permitted between Muslims, except a settlement that renders unlawful what is lawful or lawful what is unlawful' (authentic hadith, cited earlier). It is likewise a settlement upon a mere claim, which must be void, as if one claimed deliberate killing and settled over it with denial; he has taken against a right not established for him, so he may not have its compensation. It is an exchange that cannot stand with ignorance, still less with denial. What is spent in the settlement can only be one of four things: spent to repel harm, which is consuming wealth unjustly; to end the claim, which introduces the considerations of riba: if the right is a thousand, one may not settle for more, and if dirhams are settled for dinars, they may not be separated before receipt, which would be permitted if it were to end the claim; to be released from an oath; or for exchange: but exchange is valid with acknowledgement and void with denial, for one may not exchange against a right that is not owed.
Settlement on part of it is also void on the soundest view, as if it were upon other than what is claimed, for the assessment lies with the one who pays, who claims he only paid to repel harm, and taking wealth to repel harm is not permitted.
The other view: it is valid, because the two agree that some part is deserved by the claimant, though they differ as to how it is deserved; their differing in this does not prevent the taking, and it makes the claimant a donor of the half if he is truthful, and a recipient of a gift if he is lying, their difference in that being disregarded. Excepted from the scope of the two views is when the claim is a debt and they settle a thousand for five hundred in liability: that is not valid at all, for the correct view extends only to the gift, and applying the gift to what is in liability is precluded, unlike settling him for five hundred specified: that is not valid on the soundest view.
Thus, since settlement with denial is not permitted, if they settle with denial, the settlement is void and the return of the compensation is due, and no waiver occurs even if one settles a thousand denied dirhams for five hundred dirhams with waiver of the rest: what was received must be returned, and he is not discharged of the remainder, even if the thousand is established by just proof, in which case all of it may be recovered. What is received through a void settlement is not owned, like what is received through a void sale.
If it is asked: may the holder of the right keep what was given to him in a settlement with denial when he is in the right? The answer: that is within his reach between him and Allah, but before the outward judgment its return is due. And if proof is established against the denier after his denial, the settlement becomes permitted, for the right's attachment by proof is like its attachment by acknowledgement; likewise if he acknowledges and then denies, the settlement is permitted.
Exceptions to the invalidity of settlement upon denial include: the heirs' reconciliation over an estate, if none of them pays a compensation from his own property; the case of one married to more than four women who dies before choosing, or who divorces one of his wives and dies before specification, the inheritance being suspended between them and they reconcile; and the case of two men disputing a deposit with a man who says: 'I do not know for which of you it is,' or a house in their joint hands, each establishing proof and then reconciling (al-Umm (7/112), al-Hawi al-kabir (6/369, 371), Rawdat al-talibin (3/399-400), Mughni al-muhtaj (3/130-131), Nihayat al-muhtaj (4/444-446), al-Najm al-wahhaj (4/439-440), al-Dibaj (2/255), Kanz al-raghibin (2/775-776), al-Incaf (5/243)).
The majority of jurists, the Hanafis, Malikis and Hanbalis, hold this kind of settlement valid, by the apparent meaning of Allah's word: 'And settlement is best' (Surah an-Nisa, 128): Allah described the genus of settlement as good, and it is known that the void cannot be described as good; therefore every settlement is lawful by this apparent text, except what is particularized by evidence. And by the generality of the Prophet's word: 'Settlement is permitted between Muslims, except a settlement that renders unlawful what is lawful or lawful what is unlawful' (authentic hadith, related by Abu Dawud (3594), al-Tirmidhi (1352), Ibn al-Jarud (637 and 638), Ibn Majah (2353), Ibn Hibban (1199), al-Daraqutni (3/426), al-Hakim (2/49) and al-Bayhaqi (6/97)). And by what is related from 'Umar (may Allah be pleased with him): 'Send the disputants back until they reconcile, for the verdict of judgment sows rancor between them' (related by 'Abd al-Razzaq in al-Musannaf (15304) and Ibn Abi Shaybah in his Musannaf (23349), with a broken chain, weakened by Ibn Hazm).
'Umar ordered returning the disputants to settlement absolutely, in the presence of noble Companions, and none objected: it is therefore a consensus of the Companions and decisive proof. Settlement was legislated for the need to end dispute and contestation, and the need to end them is stronger in the case of denial, for acknowledgement is accord and assistance. The right is established according to the claimant's assertion, and his right to the dispute and the oath is legally established: this is thus a settlement over an established right, and so lawful. It contains the extinguishing of the flame between people and the removal of destructive disputes forbidden by Allah's word: 'And do not dispute' (Surah al-Anfal, 46). It is related that a fitnah occurred in a tribe because of a suspicion against a young man, so that forty thousand of them were killed and war raged between them until the settlement took place and the flame went out. And it is related from the Prophet: 'Whatever protects a man's honor is charity for him' (weak hadith, related by al-Bayhaqi in Shu'ab al-iman (3495) and al-Kubra (21662)): charity is recommended for the giver and lawful for the receiver, and so it is with settlement.
The claimant here pays wealth by his own choice: his settlement is valid like that of the acknowledger; he is a claimant whose lie is not known: his settlement is valid like that of the acknowledger. Were settlement permitted only after acknowledgement, it would be pure sale, and its being named 'sulh' would be meaningless. In the principles, the assessment lies with the taker, not the giver: see how a witness who testified that a man's slave was free, whose testimony was rejected, and who then bought the slave from him, may lawfully take its price, believing it lawful. So too the settlement is lawful for the taker even if the giver denies. Forbidding settlement with denial would amount to forbidding settlement altogether, since settlement with acknowledgement then becomes remote. It is lawful for one who has a right denied by his debtor to take from his debtor's wealth the amount of his right or less; if that is lawful without his choice or knowledge, more fitting is that it be lawful with his consent and giving. Likewise it is lawful with the debtor's confession, more fitting then with his denial and his inability to reach his right otherwise. The claimant here takes compensation for his established right, and the defendant pays to repel harm from himself and end the dispute, and the Law never came forbidding that: whether what is taken is of the same kind as his right or another, at its value or less; if he takes of the same kind at its value, he has recovered his due; if less, he has recovered part and left part; if of another kind, he has taken his compensation. He may not, however, take of the same kind more than he claimed: the excess has no counterpart, and he would be unjust in taking it. If he takes of another kind, it is permitted, and it is a sale with respect to the claimant for his belief in compensation, so the ruling of his acknowledgement binds him.
If what is taken is a share in a house or real estate, pre-emption attaches to it; and if he finds a defect in it, he may return it and resume his claim. For the denier it stands as a waiver: he paid wealth as ransom for his oath and to repel harm, not as compensation for a right he believes he owes; the ruling of his acknowledgement binds him too, so if he finds a defect in what he settled for, he cannot return against the claimant, for he believes he took no compensation; and if it is a share, pre-emption does not attach, for he believes it to have always been the claimant's property, not acquired by the settlement. If the defendant pays what was claimed or part of it, the ruling of sale does not attach, nor pre-emption, for the claimant believes he recovered part of his right and took back his wealth from the one who held it, like the recovery of usurped property.
If one of the two is lying, the claimant claiming what he knows is not his, and the denier denying a right he knows is owed, the settlement is void in reality: what the lying claimant takes is consuming wealth unjustly by intimidation, injustice and false claim, not compensation for a right, and so it is unlawful for him, like one who terrifies a man with death until he takes his wealth. And if the claimant is truthful, and the defendant knows his truthfulness and the establishment of his right, then denies to diminish his right or appease him with something, that is a diminution of the right and consuming wealth unjustly: the settlement is void, and the claimant's wealth is not lawful to him by it. As for us, the outward view is validity, for we do not know the hidden state: matters rest upon appearances, and the Muslim's outward state is safety (al-Mabsut (16/61-62), Bada'i' al-sana'i' (6/40), Mukhtasar al-ikhtilaf (4/195), al-Ikhtiyar (3/5), al-Jawharah al-nirah (3/35-36), Mukhtasar al-Waqayah (309), Tabyin al-haqa'iq (5/30-31), al-Ishraf (3/45, no. 907), Tuhfat al-muhtaj (4/182), Fusul al-ahkam (284), Bidayat al-mujtahid (2/221), al-Dhakhirah (5/351), al-Furuq (4/7-8), al-Sharh al-kabir (4/507, 509), Sharh Mukhtasar Khalil (6/4-5), Balghat al-salik (3/260-261), al-Mughni (4/308, 310), al-Kafi (2/202), I'lam al-muwaqqi'in (3/358, 360), Sharh al-Zarkashi (2/135), al-Furu' (4/201), al-Mubdi' (4/279), al-Incaf (5/243), Kashshaf al-qina' (3/463-464), Sharh muntaha al-iradat (3/416-417), al-Rawd al-murbi' (2/42-43), Manar al-sabil (2/126-127), Jawahir al-'uqud (1/140), al-Ifsah (1/430-431), Maratib al-ijma' (69)).
The Malikis require three conditions for settlement, according to the Imam, which is the school: that it be permitted according to each party's claim, of the claimant and the defendant; and that it accord with the apparent ruling of the Law, without suspicion of corruption. Ibn al-Qasim considered only the first two conditions, and Asbagh made them a single one: that their claims not concur in corruption. An example fulfilling all three: ten due is claimed against him; he denies; then they settle for eight hastened or a due part. An example permitted by their claims but barred by the apparent ruling: a hundred due dirhams is claimed against him and they settle on deferring them a few months, or on fifty deferred a month: the settlement is valid by each one's claim, for the claimant deferred from him or waived part, and the defendant ransomed himself from the oath by what he undertook to pay at the term; but it is not permitted by the apparent ruling, for it is a loan (salaf) with a benefit: deferral is the loan, and the benefit is the falling of the oath upon the claimant through denial, should the defendant abscond or swear, so that the whole claimed right falls: barred by the Imam, permitted by Ibn al-Qasim and Asbagh. An example barred by their claims together: dirhams and food from a sale are claimed against him; he acknowledges the food, denies the dirhams, and they settle for deferred food exceeding his food; or he acknowledges the dirhams and they settle for deferred dinars or more dirhams: Ibn Rushd reported agreement on its invalidity, and it is dissolved for the loan with increase and the delayed exchange. An example barred by the claimant's claim alone: ten dinars is claimed against him; he denies them; then they settle for a hundred dirhams on credit: barred by the claimant's claim for the delayed exchange, permitted by the defendant's denial, for he settled only as ransom from the oath binding upon him; barred by Malik and Ibn al-Qasim, permitted by Asbagh, their claims not concurring in corruption. An example barred by the defendant's claim alone: ten ardabbs of wheat from a loan are claimed; the other says: 'You have only five against me from a salam,' and wishes to settle for hastened dirhams: permitted by the claimant's claim, for food of a loan may be sold before its receipt; barred by the defendant's claim, for selling salam food before receipt is not permitted: barred by Malik and Ibn al-Qasim (Tuhfat al-muhtaj (4/182), al-Sharh al-kabir (4/507, 509), Sharh Mukhtasar Khalil (6/4-5), Balghat al-salik (3/260-261)).
The third type is settlement with the defendant's silence: a person claims something against another, who stays silent without acknowledging or denying, then settles to free himself from litigation.
The jurists disputed this settlement as they disputed settlement with denial. The majority, the Hanafis, Malikis and Hanbalis, permit it, with the same evidences as for settlement with denial, and because the silent one may equally be acknowledging or denying: when he settles, we presume validity rather than invalidity. The Shafi'is judge it void: settlement with silence is void like settlement with denial, because the permissibility of settlement requires an established right, absent here; the silent one is deemed a denier by rule until proof is heard against him; were he to pay, he would pay to repel a false claim, which amounts to a bribe (preceding sources on settlement with denial).
What settlement is permitted upon differs from one school to another. The Hanafis say: settlement is permitted in the following:
As for deliberate killing, by Allah's word:
'But if remission is made by the brother of the slain, then grant a following according to usage and payment to him in kindness.'
Surah al-Baqarah, 178
That is: the guardian of the slain receives from the killer, by way of settlement, a sum of money of unknown amount, described as such because it is of unknown quantity: it is fixed by their mutual agreement. 'A following according to usage' means the guardian of the slain follows up the settlement with the agreed compensation, and 'payment in kindness' that the settling party pays the guardian of the slain with benevolence.
As for accidental killing, its cause is wealth: it therefore becomes like a sale, except that exceeding the amount of the blood money is not valid when settlement is upon one of the prescribed measures of the diyah, for it is fixed by the Law and may not be undone, unlike settlement for retaliation, where exceeding the amount of the diyah is permitted, for retaliation is not wealth: it is valued by agreement. The difference is that the settlement compensation in accidental and quasi-deliberate injury is compensation for the diyah, fixed at a known measure not to be exceeded: exceeding the fixed would be riba; whereas the settlement compensation for retaliation is compensation for retaliation, which is not of the genus of wealth, so the compensation does not constitute an increase over the fixed wealth: riba is thus not realized. What is below life is measured by life: whatever requires retaliation joins deliberate killing, and whatever requires wealth joins accidental killing. That is when settling upon the measures of the diyah; upon other than that, exceeding the diyah is permitted, for it is an exchange, with receipt in the session required so that it is not separation of a debt for a debt. If the judge rules one of the measures of the diyah, a hundred camels, and the killer settles with the heir for those hundred she-camels for more than two hundred cows, which he has and delivers, it is permitted: the judge's ruling makes the camels exactly due, and the cows are not owed; selling camels for cows is permitted. But settling the camels for a measured or weighed thing other than dirhams and dinars on credit is not permitted, for the camels are a debt in liability: settling for a deferred measure would be exchanging a debt for a debt. Settling the camels for their like value or more within the range of barter is permitted, for the increase is not precise; beyond that range it is not permitted, for it would be settling for more than what is due.
Settlement is not permitted in a claim of a legal punishment (hadd), for it is Allah's right, not his, and one may not waive another's right. Hence one may not waive when a woman claims the lineage of her child: it is the child's right, not hers; whether the punishment is for theft, slander or fornication: the punishment for theft and fornication is, without disagreement, Allah's right. As for the punishment of slander, it too is Allah's right according to us, and the right of the aggrieved party is a right established by the Law.
If a man seizes an adulterer, a thief or a wine drinker intending to bring him before the judge, and the seized man settles with him for wealth to desist, the settlement is void, and he may take back what was handed to him. If the settlement occurs over the punishment of slander before it is brought to the judge, the compensation is not due and the punishment falls, for he has turned away from the claim; if he settles after litigation, the compensation is not due and the punishment does not fall.
When a man claims a marriage against a woman who denies it, and she settles with him for wealth so that he abandons the claim, it is permitted, and it has the meaning of khul' (divorce by compensation): the affairs of Muslims are presumed valid wherever presumption is possible, and it is possible upon this view. This holds before the judge; as for what is between him and Allah, it is not lawful for him to take it if he is lying. If a woman claims a marriage against a man and he settles with her for wealth, it is not permitted: he paid her to abandon the claim; if her abandoning the claim constituted divorce, the husband is not given compensation for the divorce; if not, nothing corresponds to the compensation he gave, and it is not valid (Bada'i' al-sana'i' (6/48-49), al-Hidayah (3/194-195), al-Ikhtiyar (3/7-8), al-Jawharah al-nirah (3/41, 43), al-Lubab (1/592-593), Mukhtasar al-Waqayah (2/311-312), Tabyin al-haqa'iq (5/34, 37), al-Fatawa al-Hindiyyah (4/320)).
The Malikis say:
Settlement is not lawful for the actual wrongdoer, even if a judge whose view permits it rules in his favor. If the wrongdoer acknowledges after the settlement, the wronged party may annul it, for he is like one overpowered; likewise if proof testified for the wronged party unknown to him at the time of settlement, even if present in the town: he may annul it if he swears he did not know of it; otherwise not, and still more if he acknowledges, testifies knowingly, or knows of it (Tuhfat al-muhtaj (4/188, 193), al-Sharh al-kabir (4/513, 517), Sharh Mukhtasar Khalil (6/7, 9), al-Sharh al-saghir (7/393, 403), al-Taj wa-l-iklil (4/99, 102), Mawahib al-Jalil (7/11-12)).
The Shafi'is say: what is not wealth and does not resolve to wealth, such as the punishment of slander, cannot be settled for compensation; likewise every punishment of Allah's right, such as fornication and theft: settling with an adulterer for what one takes from him on condition of not raising his case to the courts, so that the punishment is not established, is not valid, for the punishment is Allah's right and one may not waive another's right; a settlement over the punishments is a settlement rendering lawful the unlawful. By the hadith of Abu Hurayrah and Zayd ibn Khalid al-Juhani (may Allah be pleased with them):
A Bedouin came and said: 'O Messenger of Allah, judge between us by the Book of Allah.' His opponent rose and said: 'He has spoken truly; judge between us by the Book of Allah.' The Bedouin said: 'My son was a hired laborer with this man and committed adultery with his wife. I was told: your son deserves stoning; so I ransomed my son from it with a hundred sheep and a slave woman. Then I asked the people of knowledge, who said: your son owes only a hundred lashes and exile for a year.' The Prophet said: 'I shall judge between you two by the Book of Allah: the slave woman and the sheep are returned to you, and your son receives a hundred lashes and exile for a year. And you, O Unays, go to this man's wife: if she confesses, stone her.' Unays went to her the next morning and stoned her.Related by Bukhari (2695), in the chapter 'If they settle upon an unjust settlement, the settlement is rejected,' and Muslim (1697)
Settlement is also forbidden upon raising a wing or a balcony for compensation, even if the Imam settles: air is not owned by contract, it follows the resting place, like the burden upon the mother; if it harms, doing it is not permitted; if it does not harm, the remover deserves it; and what a person deserves upon a road, like passage, may not be compensated for. It is permitted to settle upon running water or pouring snow onto the other settler's property for wealth, for need calls for it; but the place is water brought from a river to land, or rainwater to a roof. The washer of clothes and vessels, however, may not be settled with for wealth, for it is unknown and need does not call for it, contrary to al-Bulqini who held the need greater than building upon land. The condition for settling rainwater to flow over another's roof is that it have no outlet to the road except by passing over the neighbor's roof, as al-Isnawi said. And the allowance for snow is upon another's land, not his roof, because of the harm (Rawdat al-talibin (3/408), Mughni al-muhtaj (3/137, 149), al-Iqna' (2/308), Nihayat al-muhtaj (4/455-456), al-Najm al-wahhaj (4/440, 477)).
The Hanbalis say: settlement is valid over a debt or object whose knowledge is impossible, such as two men between whom are dealings and accounts long past, neither knowing what he owes the other, by the Prophet's (peace and blessings be upon him) word to two men disputing over inheritances worn away: 'Now that you have done what you have done, divide it, seek the right, then draw lots, then part as reconciled men' (hasan hadith, related by Abu Dawud (3586)). It is the waiver of a right: valid in the unknown out of necessity, and so that it does not lead to loss of wealth or the indefinite encumbrance of liability; what can be known is not permitted. If he says: 'Acknowledge my debt and give me such and such of it,' and the other acknowledges, the debt binds him: no excuse for one who acknowledges; but he is not bound to give, acknowledgement being obligatory without compensation. If he settles the deferred debt for a due part, it is not valid: he gives the amount he waives as compensation for accelerating what he owes, and selling present possession for deferment is not allowed. If he settles a thousand due for half of it deferred, of his own accord, the waiver alone is valid, for he waived willingly with no impediment, but the deferral is not valid, for the due cannot be deferred. Settlement is valid over everything for which compensation may be taken, whether saleable or not: deliberate blood, the dwelling of a house, the defect of a sale. And settling what requires retaliation for more or less than the diyah is permitted: it is related that al-Hasan, al-Husayn and Sa'id ibn al-'As made gifts to the one against whom retaliation was established.
Al-'Imrani said: 'The Muslims agreed on its permissibility' (al-Bayan fi madhhab al-imam al-Shafi'i (6/280)). Al-Nawawi said: 'The basis of hawalah is agreed upon' (Rawdat al-talibin (3/431)). Ibn Qudamah said: 'The people of knowledge agreed on the permissibility of hawalah in principle' (al-Mughni (4/336)). Al-Zarkashi said: 'The basis of its permissibility in general is consensus' (Sharh al-Zarkashi (2/138)). Ibn Hubayrah said: 'They agreed on the permissibility of transfer' (al-Ifsah (1/437)). Al-Damiri said: 'The Muslims agreed on the permissibility of hawalah in general; by meaning, it contains relief: a man may be owed a debt and owe the like of it, so that recovery and discharge become hard upon him; it was therefore permitted to remove this burden; otherwise, by analogy, it would not be permitted, for it is the sale of a debt for a debt, which is prohibited' (al-Najm al-wahhaj (4/469)).
The majority of scholars hold that hawalah is the sale of a debt for a debt. Ibn Rushd said: 'Hawalah is a sale by which the debt passes from the liability of the assignor to that of the assignee' (al-Bayan wa-l-tahsil (11/339), Mawahib al-Jalil (7/20)). Al-Nawawi said: 'The reality of hawalah has two aspects: one, that it is recovery of a right, as if the assignee recovered what he was owed from the assignor and lent it to him from the assignee; for were it an exchange, separation before receipt would not be permitted if the two were ribawi. The sounder of the two is that it is a sale, the explicit view, for it is the exchange of wealth for wealth; and upon this there are two views: sale of an object for an object, which is void, by the prohibition of selling a debt for a debt; and the correct view: sale of a debt for a debt, excepted for necessity. The Imam and his shaykh (may Allah have mercy on them) said: there is no disagreement that hawalah combines the two meanings, recovery and substitution; the disagreement is over which prevails' (Rawdat al-talibin (3/431)). Al-Damiri said: 'Its reality has aspects; it is said: one statement and two aspects. The more apparent explicit view: it is the sale of a debt for a debt, permitted for necessity; on this basis its revocation is possible, as al-Khwarizmi stated in al-Kafi. Another view, chosen by the Shaykh and a group: it is recovery of a right, as if the assignee recovered his right from the assignor's liability and lent it from the assignee. A third, chosen by the judge, the imam and the father: it combines exchange and recovery.'
Qadi al-Tabari said: 'This disagreement has no benefit except establishing the option of the session if we say it is a sale; otherwise not, and that is the sounder. Yet it has many benefits in the chapter, among them: stipulating guarantee and pledge, and the assignee's bankruptcy appearing at the assignment; the preference in it is disputed' (al-Najm al-wahhaj (4/469-470)). Ibn Qudamah said: 'Hawalah derives from transferring a right from one liability to another. It is said that it is a sale, for the assignor buys what is upon his liability with what is owed to him; deferral of receipt is permitted in it as a dispensation, being instituted for gentleness, so the option of the session enters it. The correct view is that it is an independent contract of support (irfaq), not subsumed under another: for were it a sale it would not be permitted, being a debt for a debt; separation before receipt would not be permitted, since it would be the sale of a ribawi wealth in its genus; it would be valid with the word sale; it would be valid between two genera like all sales; and its name suggests transfer, not sale. Upon this basis no option enters it, and it binds by the mere contract: this is closest to Ahmad's statements and principles' (al-Mughni (4/336)). Al-Mardawi said, in the twenty-third qaidah: 'Is hawalah a transfer of the right or a remission of it? There is disagreement. It is said it is a sale, for the assignor buys what is upon his liability with what is upon the assignee's liability; deferral of receipt is permitted in it as a dispensation, so the option of the session enters it. Know that hawalah resembles exchange in being debt for debt, and resembles recovery in that the assignor is discharged and becomes entitled to delivery of what was sold if he assigns.'
Excluded from the preceding definition are sale, salam, loan for use, lease and partnership, because the compensation in them is different; likewise gift and charity. The Shafi'is define it as the transfer of ownership of a thing on condition of returning its like. It is called qard because the lender cuts off (qata'a) a piece of his wealth for the borrower; the people of Hijaz call it salaf (Mughni al-muhtaj (3/29), Kanz al-raghibin (2/646), al-Dibaj (2/166), al-Najm al-wahhaj (4/278), Asna al-matalib (2/140)). The Hanbalis define it as the payment of wealth as support to one who benefits by it, its like being returned; it is a kind of salaf, because the borrower benefits from what he borrows (Kashshaf al-qina' (3/364), Sharh muntaha al-iradat (3/322), al-Rawd al-murbi' (2/5)).
There is no disagreement among the scholars: the loan is permitted with respect to the borrower and recommended with respect to the lender, for it is an act of devotion among acts of devotion: it brings benefit to the borrower, meets his need and relieves his distress, and is a help to him; it is therefore recommended like charity, and its status in itself is recommendation. From the Book: Allah's word: 'Cooperate with one another in righteousness and piety' (Surah al-Ma'idah, 2): lending is cooperation in righteousness. And His word: 'And do good' (Surah al-Hajj, 77): lending is a good deed. From the Sunnah:
'Whoever relieves a believer of a distress from the distresses of this world, Allah will relieve him of a distress from the distresses of the Day of Resurrection; whoever makes things easy for one in hardship, Allah will make things easy for him in this world and the Hereafter; whoever conceals a Muslim, Allah will conceal him in this world and the Hereafter; and Allah is in the help of a servant so long as the servant helps his brother.'Related by Muslim (2699)
'No Muslim lends twice to a Muslim except that it is like its charity once.'Authentic hadith, related by Ibn Majah (2430) from Abdallah ibn Mas'ud
Abu Rafi' (may Allah be pleased with him) related that the Messenger of Allah borrowed from a man a young camel; camels of the obligatory charity arrived, and he ordered Abu Rafi' to repay the man a young camel. Abu Rafi' returned and said: 'I found only a four-year-old among them.' He said: 'Give it to him: the best of people are the best in repayment.'Related by Muslim (1600)
As for consensus, Ibn Qudamah said: 'The Muslims agreed on the permissibility of the loan' (al-Mughni (4/207)). The Malikis say: its status in itself is recommendation; it may become obligatory, disliked or forbidden, and its bare permission is rare. So too the Shafi'is: it is obligatory if the borrower is in dire need; it becomes unlawful for both if they know or suspect he will spend it in disobedience, and disliked if he will spend it on a disliked thing. Borrowing is permitted only for one who knows of himself that he is able to repay, unless the lender knows he is unable. It is not lawful for him to display wealth and conceal poverty at the time of the loan, just as concealing wealth and displaying poverty is not permitted when taking charity (Mughni al-muhtaj (3/30), al-Dibaj (2/166)). Ibn Qudamah said: 'Imam Ahmad said: there is no sin upon one who is asked for a loan and does not lend, for it belongs to the good deeds: it resembles voluntary charity, and it is not disliked for the lender.'
Ibn Manzur also said: the guarantor (damin) is the surety (kafil): 'he guaranteed the thing' with damn and daman: he stood surety for it. Ibn al-'Arabi said: it is said: 'I guaranteed the thing, I guarantee it as daman: I am a damin' (Lisan al-'Arab (3/91, 9/64), under the entries kafalah and daman).
The jurists varied in defining kafalah and daman according to the rulings flowing from them. The Hanafis have two definitions: the first: 'kafalah is the joining of one liability to another in the demand'; the second: 'the joining of one liability to another in the debt' (al-Hidayah (3/87), al-Bahr al-ra'iq (6/221), Radd al-muhtar (5/281), Multaqa al-abhur (1/172), Tabyin al-haqa'iq (4/146), Fath al-qadir (7/163), Durr al-hukkam (1/614)). The first matches what Muhammad Qadri Pasha, a Hanafi who died in 1306 of the Hijrah, wrote in Murshid al-hayran (822): 'the joining of the surety's liability to the principal debtor's in the demand, by person, debt or object.' Ibn 'Abidin holds that whoever defined it by the debt meant a species of kafalah, namely financial surety; surety by person and by objects concerns the demand by agreement; they are two essences that cannot be combined in a single definition (Radd al-muhtar (5/281-282)). The first definition is therefore preferred, for it embraces all the species of kafalah: kafalah is valid with wealth as well as with the person, and there is no debt in the person; most Hanafi scholars preferred this definition, which is the most comprehensive of them.
The Malikis: Khalil said: 'daman is the occupation of another liability with the right' (Mukhtasar Khalil (1/211); see al-Taj wa-l-iklil (5/96), al-Sharh al-kabir (3/329)). Ibn 'Arafah defined it as 'commitment to a debt without cancelling it, or the demand of the debtor for the creditor' (Sharh hudud Ibn 'Arafah (319)). Shaykh al-Dardir defined it as 'the commitment of a legally responsible person who is not a squanderer to a debt for another, or the demand of the debtor for the creditor' (al-Sharh al-saghir (3/272)).
The Shafi'is defined daman as 'the commitment concerning an established right in another's liability, or bringing a guaranteed object or the body of the one whose presence is deserved' (al-Siraj al-wahhaj (1/240), Asna al-matalib (2/235), Mughni al-muhtaj (3/161), al-Jamal's gloss (3/377)). The two imams al-Nawawi and al-Mawardi distinguish the words daman and kafalah in usage: daman is specific to bringing wealth, and kafalah specific to bringing the person; hence one says: daman of wealth and kafalah of the body (Rawdat al-talibin (4/253), Mughni al-muhtaj (3/161)).
The Hanbalis: Ibn Qudamah defined it as 'the joining of the guarantor's liability to the liability of the one guaranteed for the obligation of the right, so that it is established in both their liabilities' (al-Mughni with its commentary (6/313), al-Kafi (2/160)). Al-Bahuti defined it as 'the commitment of one whose donation is valid to what is obligatory or may become obligatory upon another, while it remains' (Kashshaf al-qina' (3/423-424), al-Rawd al-murbi' (2/180), Matlab uli al-nuhah (3/292)). The Hanbalis likewise distinguish kafalah from daman and define kafalah as 'the commitment of a sane adult, willingly, to bring the one on whom a financial right is owed to its owner' (al-Rawd al-murbi' (6/441), Sharh muntaha al-iradat (2/252)).
Despite this distinction, they permit kafalah to be concluded with any word by which daman is concluded, because it is a species of it: daman is general and kafalah specific. In Matlab uli al-nuhah: 'kafalah is concluded with any word by which daman is concluded, because it is a species of it.'
Daman and kafalah have one meaning in the language. Al-Sarakhsi said: 'this contract's name is kafalah and its cause is daman' (al-Mabsut (19/168)). Al-Khatib al-Shirbini said: 'the one who undertakes it is called damin, and also hamil, za'im, kafil, sabir and qabil' (Mughni al-muhtaj (3/161)).
In the jurists' usage, most employ daman for the commitment of wealth, and kafalah for the commitment to bring the person. Al-Mawardi said: 'custom runs such that damin is used for wealth, hamil for blood monies, za'im for great wealth, kafil for lives, and sabir for all of it' (al-Hawi al-kabir (6/431)).
Among the differences: kafalah may concern the person, daman wealth. You say: 'I stood surety for Zayd,' meaning you undertook to deliver him, and 'I guaranteed the land,' meaning you undertook to pay its rent; one does not say 'I stood surety for the land,' for its object does not vanish so as to need bringing: daman is the commitment concerning a thing with respect to the guaranteed party, kafalah the commitment of the person of the one guaranteed. Hence Allah's word: 'and Zakariyyah provided for her' (Surah Al 'Imran, 37): He did not say 'guaranteed her.' And daman may be made for one whom one does not know, while one may not stand surety for one whom one does not know: for one could not deliver him, while one can pay in his stead without knowing him (al-Furuq al-lughawiyyah of Abu Hilal al-'Askari (1/453)).
Among the jurists are those who employ daman for all its species and then treat what is specific to each species afterward, either under the word daman without an independent heading, as in Mukhtasar Khalil for the Malikis, or under the heading of kafalat al-badan with an independent heading, as in al-Minhaj and Rawdat al-talibin for the Shafi'is, and al-Mughni, al-Rawd al-murbi' and Sharh muntaha al-iradat for the Hanbalis, where a chapter on daman is followed by a section on kafalah of the body with its specific rulings. Others employ kafalah for all the species of daman, as in Bada'i' al-sana'i' and al-Hidayah for the Hanafis. The matter is terminological, and there is no quarrel over terminology.
The Hanafis divide daman into two parts:
The Malikis define surety by the person as 'the commitment to produce the creditor at the term or at the time of need' (al-Sharh al-saghir (3/286) with Balghat al-salik, al-Sharh al-kabir (3/532)). The Shafi'is: 'the commitment to bring the guaranteed one to his creditor for the need' (Mughni al-muhtaj (3/169)). The Hanbalis: 'the commitment of a sane adult, willingly, to bring the one he guarantees, upon whom a financial right attaches' (Kashshaf al-qina' (3/437-438), al-Rawd al-murbi' (6/441), Sharh muntaha al-iradat (2/252)).
These definitions revolve around a single meaning despite the variety of words: the obligation to produce a sought body to his creditor at need. This species is called kafalah by the person, the face or the body.
The Malikis add a third part: daman al-talab (surety of pursuit), which is searching for the creditor if he has disappeared, then directing the holder of the right to him (al-Sharh al-saghir (3/287-288)). There is another part: daman al-ma'rifah (surety of identification), which we shall explain later, Allah willing.
The Malikis considered daman al-talab a third part of daman, but in truth it differs little from daman of the face: it is, as they say, daman of the face with a condition. Shaykh al-Dardir said: 'daman of pursuit is the commitment to seek him, searching for him if he has gone away, then directing the holder of the right to him, even if he does not bring him'; hence daman al-talab is valid for bodily rights other than wealth, such as retaliation, corrective punishments and the legal punishments, unlike daman of the face. Its formulae: either in explicit words such as 'I am a guarantor by his pursuit,' 'his pursuit is upon me,' 'I guarantee only his pursuit'; or by daman of the face with a condition excluding wealth, such as: 'I guarantee his presence on condition that I owe no money if I do not find him,' or: 'I guarantee nothing but his presence,' that is, excluding the financial burden: it is daman of pursuit. Whoever guarantees thus must pursue him with the effort he can customarily muster if the debtor has gone away at the term, in the nearby places, if he knows his location; the debtor who is present is sought in the town and its environs if his location is unknown. If he has gone away and his location is unknown, the guarantor is not charged with the search; if he claims he did not find him, he is believed and swears that he did not fall short in pursuit and does not know his location, with no financial burden, unless he was negligent in the pursuit to the point that the creditor cannot reach him: he is then fined, as if he sought him in a place he thinks he is not while abandoning where he thinks he is; more fitting is his being fined if he hid him or knew his location and did not direct the creditor to him.
The Mudawwanah relates: Sahnun asked Ibn al-Qasim: 'What do you say of one who says: I guarantee his presence until such and such a term; if I do not bring him, his pursuit is upon me until I bring him; as for wealth, I do not guarantee it: does he owe any wealth if the term passes and he does not bring him, in Malik's view?' He replied: 'Malik said: nothing is upon him, and it stands as he stipulated.' And: 'If I guarantee a man's presence for another until such a term: if I do not bring him by that term, he has no claim upon me of wealth, but I am his guarantor of presence, pursuing him until I bring him': Malik said: 'it stands upon his stipulation: nothing is upon him except the pursuit of his presence; he stipulated for himself what you mentioned' (al-Mudawwanah (3/124); see Fiqh al-bay' (1359)).
Yet there is a slight difference between daman al-talab and daman of the face: the first shares with it the obligation of bringing, but daman of the face is specific in the financial fine upon impossibility, even without negligence or concealment: he is fined the money he guaranteed; if the guarantee is in retaliation, a wound, a punishment or a correction and the guarantor falls short in producing the guaranteed one, he is only punished: such is the school (al-'Adawi's gloss (2/473), al-Dasuqi's gloss on al-Sharh al-kabir (3/347)).
The scholars disputed kafalah by the person; as for kafalah by wealth, there is no disagreement about its validity. The majority of jurists permit kafalah by the person, except for a statement of al-Shafi'i in 'the New.' Al-Marghinani said: 'kafalah is of two kinds, by the person and by wealth; kafalah by the person is permitted, and what is guaranteed by it is the bringing of the guaranteed one.' Al-Shafi'i said: 'it is not permitted, for one is guaranteed for what he cannot deliver: he has no power over the guaranteed person's person, unlike kafalah by wealth, for he has power over the wealth of his own person.' Our argument: his word: 'the guarantor is a debtor,' which indicates the legality of kafalah in both its kinds; and because he can deliver him by a means, by informing the claimant of his place, clearing the way, or seeking the help of the judge's aides; and the need for it is widespread; and the meaning of kafalah, joining in the demand, can be realized (al-Hidayah (3/87)).
Ibn Rushd said: 'As for bail by the person, known as daman of the face, the majority of the jurists of the towns hold its validity when it is on account of wealth; it is reported from al-Shafi'i in the New that it is not permitted; his proof is Allah's word: He said: Allah forbid that we take except the one with whom we found our property (Surah Yusuf, 79), for it is kafalah by the person, resembling kafalah in the punishments' (Bidayat al-mujtahid (2/450)). Al-Muzani said in his Mukhtasar: 'al-Shafi'i weakened kafalah of the face in one place and permitted it in another, except in the punishments.' Al-Shafi'i said: 'kafalah by the person with an option is not permitted; when it is permitted without an option, no wealth binds the guarantor by the person unless he names wealth he guarantees; kafalah does not bind in a punishment, nor in retaliation, nor in a penalty: kafalah binds only in wealth; and if he guarantees what binds a man in deliberate wounds, if the guardian wants retaliation, the kafalah is void; if he wants the compensation of the wound, it is his, and the kafalah binds him because it is a kafalah of wealth' (al-Umm (3/204)). Abu al-Walid al-Baji, commenting on al-Shafi'i's word, said: 'As for bail by presence, it is permitted, contrary to al-Shafi'i in his prohibition of it; our proof is that its purpose is wealth: he is guarantor of the creditor's presence so that the wealth may be claimed; it is thus an instrument by which one reaches the claiming of wealth, like testimony' (al-Muntaqa (4/53)).
Ibn Rushd also said: 'the proof of those who permit it is the generality of his word, the guarantor is a debtor, and they see in it an interest; it is reported from the first generations. As for the ruling that follows from it, the majority of those who hold bail by the person agree: if the guaranteed one dies, nothing binds the guarantor of presence; it is reported from some that it binds. Ibn al-Qasim distinguished dying present and dying absent: if he dies present, nothing binds the guarantor; if absent, it is examined: if the distance between the two towns allows the guarantor to bring him within the fixed term, of the order of two to three days, and he falls short, he is fined; otherwise he is not' (Bidayat al-mujtahid (2/405-406)). Ibn Battal said: 'those who permit it do not differ: if the sought one goes away or dies, no punishment falls upon the guarantor, nor retaliation: kafalah by the person does not entail a ruling upon the body' (Sharh Sahih al-Bukhari (6/422)). Ibn al-Munir said: 'kafalah by the person is the view of the majority; those who hold it do not differ: for a punishment or retaliation, if the guaranteed one goes away or dies, no punishment falls upon the guarantor, unlike debt; the difference is that if the guarantor pays the wealth, its like becomes due to him from the holder of the wealth' (Fath al-Bari (4/576)).
However, most of the Shafi'is validate daman of the face: al-Nawawi states this in Rawdat al-talibin.
Kafalah of the body, also called kafalah of the face, is valid according to the famous view; it is said: valid absolutely: it is permitted by the body of one who owes wealth; if a penalty toward a human being is upon him, such as retaliation and the punishment of slander, the kafalah is valid on the more apparent view; it is said: not valid absolutely, and if it is a punishment for Allah, it is not valid according to the school; it is said: there are two views. Al-Ghazali fixed the rule: 'the gist of kafalah of the body is the commitment to bring the guaranteed one by his body: whoever must attend the judge's session upon summons, or whose bringing is deserved, kafalah by his body is permitted' (Rawdat al-talibin (4/253)). Al-Shirazi said: 'kafalah of the body is permitted explicitly in the books'; in (al-Tanbih), on claims and evidence: 'kafalah of the body is weak,' with respect to analogy; some of our companions say it is valid by a single view; others that there are two views: the first, that it is not valid, for it would be guaranteeing an object in liability by contract, like salam for the fruit of a specific palm; the second, that it is valid, and it is the more apparent, by what Abu Ishaq al-Sabi'i related from Harithah ibn Mudarrib: I prayed with Abdallah ibn Mas'ud in the morning; when he gave the salutation, a man stood, praised Allah and extolled Him, and said: 'O people, by Allah, I spent the night bearing no grudge against anyone; I pursued a man of Banu Hanifah who had ordered me to bring him a young slave; I came to the mosque of Banu Hanifah, the mosque of Abdallah ibn al-Nawwahah, and I heard their muezzin testify that there is no deity but Allah and that Musaylimah is the messenger of Allah; I disbelieved my hearing and reined in my horse until I heard the people of the mosque conspiring upon it.' Abdallah ibn Mas'ud said: 'Abdallah ibn al-Nawwahah is upon me.' He came and confessed. Abdallah said to him: 'Where is the Quran you used to recite?' He said: 'I sought refuge in it from you.' He said: 'Repent.' He refused; he ordered that he be taken to the market and his head struck. Then he consulted the companions of Muhammad about the rest of the people. 'Adi ibn Hatim said: 'A tumor of disbelief has raised its head: cut it off decisively.' Jarir ibn Abdallah and al-Ash'ath ibn Qays said: 'Invite them to repent; if they repent, their tribes guarantee them.' He invited them, they repented, and their tribes guaranteed them (al-Muhadhdhab (1/343); see al-Majmu' (13/214), Mughni al-muhtaj (3/169)). And because the body may rightfully be delivered by contract, kafalah by it is permitted as with debt.
Daman is permitted by the Book, the Sunnah and consensus.
First, the Book. His word: 'He said: I shall not send him with you until you give me a firm pledge in the name of Allah, unless you are overtaken' (Surah Yusuf, 66). 'A firm pledge in the name of Allah': a covenant by which one is bound; al-Suddi said: they swore by Allah to return him without surrendering him. The indication of this verse: Ya'qub (peace be upon him) sought a guarantee of his young son's return by taking this pledge. Al-Qurtubi said: 'this verse is a basis for the permissibility of bail by the object and the pledge by the person' (al-Jami' li-ahkam al-Qur'an (5/203)).
His word: 'They said: we are missing the king's cup; and for him who brings it is a camel's load, and I guarantee it' (Surah Yusuf, 72). Al-Khattabi said: 'the za'im is the kafil; hence the chief of a people is called za'im, because he takes charge of their affairs' (Ma'alim al-Sunan (3/177)). Abu al-Walid al-Baji said: 'the linguistic evidence for this name for kafalah is clear; as for the evidence for its ruling, it is the view of whoever says that the law of those before us is law for us, except what evidence particularizes: this is the famous position in the school of Imam Malik' (al-Muntaqa (6/80)).
Second, the Sunnah:
'The borrowed item is to be returned, the gift repaid, the debt discharged, and the guarantor is a debtor.'Authentic hadith, related by Abu Dawud (3565), al-Tirmidhi (1265), Ibn Majah (2405), Ahmad (5/267), al-Tayalisi (1211), 'Abd al-Razzaq in al-Musannaf, Ibn Abi Shaybah, al-Daraqutni (3000), al-Tabarani and al-Bayhaqi in al-Kubra (6/72), from Abu Umamah; al-Dhahabi said in al-Siyar (8/323): this is a strong chain
The proof is his word: 'the guarantor is a debtor': the guarantor is liable for the return of the right to its holder, whether object, debt or person; and by implication and indication, kafalah by wealth and by the person is permitted, with its effect of financial liability when the right is demanded by its holder.
Al-Bukhari titled in his Sahih: 'the chapter on kafalah in loans, debts, by bodies and otherwise,' and mentioned the following. First: Abu al-Zinad related from Muhammad ibn Hamzah ibn 'Amr al-Aslami, from his father: 'Umar sent him as collector of the obligatory charity; a man fell upon his wife's slave woman; Hamzah took guarantors from the man until he came to 'Umar, who had flogged him a hundred lashes; he believed them and excused him for ignorance (related by Bukhari (2290) in suspended form, connected by al-Tahawi in al-Mushkil (11/320) and in Sharh ma'ani al-athar (3/36)). Al-Hafiz Ibn Hajar said: 'from this story is derived the legality of kafalah by bodies: Hamzah ibn 'Amr al-Aslami is a Companion who did so, and 'Umar did not object to him despite the large number of Companions at that time' (Fath al-Bari (4/549)).
Second: Jarir and al-Ash'ath said to Abdallah ibn Mas'ud concerning the apostates: 'Invite them to repent and take guarantors'; they repented and their tribes guaranteed them (related by Bukhari in suspended form (2/801), connected by al-Tahawi in Sharh al-Mushkil (11/312-313)). The indication of this report: Abdallah ibn Mas'ud took guarantors from the people of Abdallah ibn al-Nawwahah, so that when they professed Musaylimah's prophethood again, the guarantors would be required to bring them for the establishment of the punishments; Ibn Mas'ud's action, without objection from the Companions, establishes the permissibility of kafalah by bodies. Ibn al-Munir said: 'al-Bukhari derived kafalah by bodies in debts from kafalah by bodies in the punishments, by the stronger route' (Fath al-Bari (4/576)). Al-Tahawi said after these two reports: 'in these two hadiths is Abdallah's employment of kafalah by persons with consultation and the presence of those present, without any objection or opposition: evidence that they followed him' (Sharh mushkil al-athar (11/313)).
Third, the hadith of Abu Hurayrah:
The Messenger of Allah mentioned a man of the Children of Israel who asked one of them to lend him a thousand dinars. He said: 'Bring me witnesses.' He said: 'Allah is enough as a witness.' He said: 'Bring me a guarantor.' He said: 'Allah is enough as a guarantor.' He said: 'You have spoken truth.' He handed it over to him for a fixed term.Related by Bukhari (2063) in the chapter of kafalah, connected in the sales, and Ahmad (8232)
Ibn Hajar said: 'the indication is the Prophet's mention and approbation: he mentioned it only to be imitated, otherwise the mention would be fruitless' (Fath al-Bari (4/551)).
Fourth, al-Bukhari titled: 'whoever guarantees a dead man's debt may not withdraw,' and al-Hasan said so. Al-Hafiz said: 'his word, he may not withdraw, means the kafalah binds him and the right is established in his liability; or it means: he may not withdraw from the estate to the extent he guaranteed; the first is more fitting to his intent' (Fath al-Bari (4/554)). Al-Bukhari related two hadiths. The first, the hadith of Salamah ibn al-Akwa': a funeral was brought so that the Prophet might pray over it; he asked: 'Does he owe a debt?' They said: no, and he prayed. Then another was brought: 'Does he owe a debt?' They said: yes. He said: 'Pray over your companion.' Abu Qatadah said: 'His debt is upon me, O Messenger of Allah.' He prayed over him (Bukhari (2295)). Ibn Hajar said: 'had Abu Qatadah been able to withdraw, the Prophet would not have prayed over the debtor before Abu Qatadah discharged the debt, lest he withdraw and he have prayed over a debtor whose debt remained: evidence that he may not withdraw' (Fath al-Bari (4/554)). The second, the hadith of Jabir ibn Abdallah: the Prophet said: 'If the wealth of the two seas came, I would give you thus and thus.' The wealth of the two seas did not come until the Prophet died. When it came, Abu Bakr ordered it proclaimed: 'Whoever has a promise or a debt with the Prophet, let him come to us.' Jabir came and cited the Prophet's word; Abu Bakr poured him a handful which he counted: five hundred, and said: 'Take its like' (Bukhari (2296)). Ibn Hajar said: 'Abu Bakr stood in the Prophet's place, answering for what was obligatory or voluntary upon him; once he undertook it, he had to discharge all his debt and promise' (Fath al-Bari (4/555)).
The people of knowledge also cited what Muslim related in his Sahih, from Qabisah ibn Mukhariq al-Hilali: 'I undertook a liability and came to the Messenger of Allah about it. He said: Stay until the charity reaches us and we shall order it for you. Then he said: O Qabisah, begging is lawful only for three: a man who has undertaken a liability, for whom begging is lawful until he obtains it, then he holds back...' Al-Nawawi said: 'the liability is the wealth a man has undertaken, that is, he borrows and pays it to set things right between people, such as reconciling two tribes; begging is lawful for him, and he is given from the obligatory charity, on condition that he borrows for other than disobedience' (Sharh Muslim (7/133)).
And they cited what Abu Dawud and Ibn Majah related, the wording being Abu Dawud's, in the chapter of kafalah:
From Ibn 'Abbas: a man owed his creditor ten dinars at the time of the Prophet and said: 'I have nothing to give you.' He said: 'No, by Allah, I shall not leave you until you pay me or bring me a guarantor.' He dragged him to the Prophet, who said: 'How long do you grant him?' He said: 'A month.' The Messenger of Allah said: 'I stand surety for him.' He came at the appointed time, and the Prophet said: 'Where did you obtain this?' He said: 'From a mine.' He said: 'There is no good in it,' and he paid the debt for him.Related by Abu Dawud (3328), Ibn Majah (2406), 'Abd ibn Hamid (597), al-Tahawi in Sharh mushkil al-athar (12/226), al-Tabarani in al-Kabir (11/218), al-Hakim in al-Mustadrak and al-Bayhaqi in al-Kubra (6/74): a good chain
Al-Khattabi said: 'in this hadith is the establishment of bail (hamalah) and daman, the establishment of binding the creditor, and preventing him from disposing until he exits the right he owes' (Ma'alim al-Sunan (3/54)).