13. GUARANTEEING PAYMENT
GUARANTEEING PAYMENT (DAMAN)
(Guarantee lexically means ensuring implementation, and in Sacred Law means to ensure a financial obligation which is another’s or ensure the appearance of a particular person whose presence is required.)
Given three persons, P (al-madmun lahu), Q (al-madmun ‘anhu), and R (al-damin) (where P loans Q a dirham, and R guarantees to P that either Q will repay it or else he, R, will repay it. Such guarantees have five integrals:
a) R;
b) P;
c) Q;
d) The debt covered;
e) and the form of the agreement).
GUARANTEEING ANOTHER’S FINANCIAL OBUGATION
It is a necessary condition for the validity of guaranteeing payment that R have full right to manage his own property. It is not valid from a child, someone insane, or a foolhardy person (though it is valid from someone suspended for bankruptcy.
It is a condition for the validity of a guarantee that R know P, though it is not necessary that P agree to it.
It is not necessary that Q agree, or that R know Q.
It is necessary that the guaranteed debt be a financial obligation (dayn) that is existent (since it is not valid to guarantee a debt before it exists, such as “tomorrow’s expenses”) and is determinately known (in terms of amount, type, and description).
It is necessary that R make the guarantee in words (or their written equivalent, with the intention) that imply he is affecting it, such as “I guarantee your debt to: that So-and-so owes you],” or “I will cover it,” or the like. (These are explicit expressions in that they mention the guaranteed financial obligation. When it is not mentioned, the expression is allusive, which is valid provided the financial obligation is what is intended, and the speaker knows how much it is. Otherwise, allusive expressions are not valid.)
It is not valid to base the implementation of a guarantee on a condition, such as saying, “When Ramadan comes, I hereby guarantee it.” (Nor is it valid to make it subject to time stipulations, such as saying, “I guarantee what So-and-so owes for one month, after which I no longer guarantee it.”)
When a seller has accepted the price of something, it is valid (for someone) to guarantee the buyer his money back if the merchandise should prove to belong to another or to be defective. (It is likewise valid for someone to guarantee to the seller that the merchandise will be returned if the price paid for it should turn out to belong to someone other than the buyer.)
P is entitled to collect the guaranteed debt from Rand Q (by asking both of them or either for the full amount, or one of them for part of it and the other for the rest of it).
If another guarantor guarantees the debt for R (by saying (to P), “I guarantee Q’s debt [to you] for R”), then P is entitled to collect it from all (from Q, R, and the new guarantor)
If P asks for payment from R, then R is entitled to ask Q to pay the debt, provided that Q had given his permission to R before R guaranteed it.
If P cancels the debt Q owes him, then R is also free of the obligation to pay P. But if P cancels R’s obligation to cover Q’s debt, then Q is not thereby free of the debt he owes P.
If R pays Q’s debt to P, then R can collect it from Q. provided that Q had given his permission to R before R guaranteed it. But if Q had not (given his permission to R to guarantee), then R is not now entitled to collect it from Q. no matter whether R paid it off with Q’s leave or without it.
It is not valid to guarantee delivery of particular articles (ayn) (as they are not financial obligations, such as something wrongfully taken, or articles loaned for use (i.e. “guaranteeing” they will be returned to their owner).
GUARANTEEING ANO’IHER’S APPEARANCE
It is permissible for R to guarantee that Q will appear in person (in court) provided:
a) that Q owes someone something or is liable to punishment for a crime against another person, such as when the other is entitled to retaliate against Q, or when Q has charged someone with adultery without evidence;
b) and that Q gives R permission to guarantee his appearance.
It is not valid to guarantee Q’s appearance if (non-(a) above) Q’s crime is against Allah Most High (such as drinking, adultery, or theft).
If R guarantees Q’s appearance but does not specify when, he is required to produce Q at once. But if R stipulates a certain time, then he is required to do so at that time.
If Q disappears and his whereabouts is unknown, R is not required to produce Q until he knows where Q is.
When R knows where Q is, then) R is given time to travel to where Q is and return. If R does not bring Q, then R is under arrest, though he is not responsible for Q’s (unfulfilled) financial obligations.
If Q dies, the guarantee is nullified, though if R is asked to produce Q’s body before burial to verify its identity, he is obliged to if able.
(Source: The reliance of the traveller, revised edition, Edited and Translated by Nuh Ha Mim Keller)
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