The Contract of Guarantee or Kafalah / ‫كفالة‬

- Literally: junction, joining, combination, responsibility or

suretyship.
- Legally: “joining of one obligation to another obligation with
regards to a claim”.
- Legality: Prophet (s.a.w) said:
)‫ والبيهقي وصححه األلباين‬،‫ “الزعيم غارم ”(رواه ابن ماجه‬-
“Guarantor is liable”(Ibn Majah, Al-Baihaqi) -
Hadith says: -
)‫َله َعلَ ْي ِّه“( رواه البخاري‬ ِّ‫ول ه‬َ ‫ص ِّل َعلَْي ِّه ََي َر ُس‬
َ ََ ُ‫اَّلل َو َعلَ هي َدْْ ُُه‬ َ ‫اد َة‬
َ َ‫ال أَبُو قَ ت‬
َ َ‫ ” …ق‬-
- Prophet (s.a.w) would refuse to perform prayer for a Muslim
who died indebted then: “Abu Qatadah said: O Messenger
of Allah pray for him and his debt is on me (I guarantee),
then He prayed for him” (Bukhari).
 Pillars of Kafalah
- Majority of Schools: kafalah has four pillars:
1) The guarantor or surety ( ‫كفيل‬/‫)ضامن‬
2) The principal debtor (‫ مضمون عنه‬/ ‫)مكفول عنه‬.
3) The claim itself ( ‫مضمون‬/ ‫)مكفول به‬.
4) A creditor ( ‫ مضمون له‬/ ‫)مكفول له‬.
- Hanafis: offer and acceptance where offer may
come from the guarantor and the acceptance from
the creditor.
- Majority of Schools: kafala is concluded only by an
offer made by the guarantor and the acceptance
from the creditor.
- Kafalah can be:
1) Immediate (ex: I guarantee the loan). In this case
he might be asked by creditor to pay the loan
either immediately or later or by instalments. The
guarantor becomes liable from the beginning.
2) Conditional (ex: I will guarantee the loan if you
give not more than RM 500).
3) Contingent or suspended (ex: I will guarantee the
loan starting from 2022)
- Hanafis and Hanbalis: Allowed.
- Shafi’is: Not allowed.
 Conditions
1) Legal capacity of both guarantor and the creditor
2) Consent of the guarantor about the contract.
3) Neither legal capacity of the principal debtor nor his
presence during the contract is necessary.
4) Consent of the principal debtor is not necessary as well.
5) The creditor and the guarantor should know each other
6) The principal debtor should be known to the guarantor
7) Obligation must come from the real debt and not from a
trust (ex: depositor or partner can not ask for a guarantor)
8) Quantity, quality and type of claim should be known.
- Claim can be a person, loan or a thing or an act or work.
 Types of Kafalah
For a person (‫ )الكفالة بالنفس‬or for a claim (‫)الكفالة بالمال‬
1) In Kafalah for a person a guarantor is liable ONLY for the
presence of the principal in a lawsuit. Guarantor is not
liable to settle a debt of the principal even if he dies.
2) In Kafalah for a claim or property a guarantor is liable for
the settlement of a debt (dayn) or that a certain specific
thing (‘ain) would be returned.
- In this case a guarantor is liable if the creditor or the
owner of the thing dies.
- The heirs of the creditor or the owner of the thing can
demand that the guarantor settles the debt or returns the
thing bought by the buyer.
 The Effects of Kafalah
• Majority of Schools: a creditor has option to claim
the debt from either the principal or the guarantor.
• Imam Malik in one of his opinions says that the
debt should not be claimed from the guarantor
unless if the principal debtor is unable to pay.
• Kafalah is a gratuitous contract, so the service
rendered by the guarantor is done freely without
any reward or payment.
• However, it is possible that a guarantor may
demand a certain fee for the service occurred.
 Termination of Kafala
1) When the debt is settled either by the principal debtor
or by the guarantor or when the creditor makes the
debt as a gift either to the principal debtor or to the
guarantor.
2) When a creditor releases (‫ )إبراء‬the principal debtor
the guarantor is also released (‫ )إذا سقط األصل سقط الفرع‬If
a tree trunk falls the branch falls with it. However, if a
creditor releases the guarantor from the claim and not
from the debt, in this case the principal debtor is not
released.
3) When the debt is transferred (hawalah). In this case
both the principal debtor and the guarantor are
released (ex: someone owes a similar debt to the
principal debtor..)
4) When the guarantor settles the claim through arbitration
with the creditor. Arbitration may lead to the release of
both the guarantor and the principal debtor. Alternatively, a
guarantor may release himself from part of the claim
through arbitration and allow the creditor to claim the
balance from the principal debtor.
5) Death of the guarantor for the property does not terminate
the contract of kafalah. In this case the debt will be
discharged from his estate. However, the death of the
principal debtor or a guarantor in a contract of “kafalah for
the person” terminates the contract.
6) The creditor can terminate the contract of kafalah even if
the principal debtor or the guarantor does not agree.