بسم الله الرحمن الرحيم

Kitāb Al-Buyoo’ (Fiqh Al-Muyassar) Lesson 10 Notes (19 Jumada Ath-Thani 1446 H - 19/1/25) Continuation... الباب الثامن: الكفالة والضمان The Eighth Subchapter: Bodily and Financial Guarantees BENEFIT: When an individual requests a loan, the lender may choose to: 1. Approve the loan without requiring any form of security. 2. Approve the loan after demanding a security measure, which could include: A. Rahn (discussed in the previous lesson) B. Kafālah (bodily guarantee) C. Ḍhāmānah (financial guarantee) The above two will be explained in this lesson D. Witnesses المسألة الأولى: معنى الكفالة وأدلة مشروعيتها The Meaning of Kafālah and The Evidences for its Permissiblity DEFINITION LINGUISTICALLY لغة: الاحتواء والضمان والالتزام Inclusion, guarantee, and commitment. LEGISLATIVELY الكفالة هي التزام إحضار مَنْ عليه حق مالي لربه أو إلى مجلس الحكم. (Kafālah) refers to the commitment to present a person who owes a financial obligation to their creditor or to a judicial setting. This is a bodily/personal guarantee RULING Kafālah is permissible according to the Qur'ān, the Sunnah, and the consensus: QUR'ĀN Allāh says: ﴿قَالُوا۟ نَفۡقِدُ صُوَاعَ ٱلۡمَلِكِ وَلِمَن جَاۤءَ بِهِۦ حِمۡلُ بَعِیرࣲ وَأَنَا۠ بِهِۦ زَعِیمࣱ﴾ "They said: “We have lost the King’s measuring cup. And whoever brings it will be awarded a camel-load ˹of grain˺. I guarantee it.” [Surah Yūsuf: 72] - The phrase "I am responsible" refers to acting as a guarantor. Allāh also says: ﴿سَلۡهُمۡ أَیُّهُم بِذَ ٰ⁠لِكَ زَعِیمٌ﴾ "Ask them ˹O Prophet˺ which of them can guarantee all that." [Surah Al-Qalam: 40] - indicating a guarantor's role. SUNNAH The Prophet ﷺ said: ((العارية مؤداة، والزعيم غارم، والدين مقضي)) “The borrowed object must be returned, the guarantor is liable, and the debt must be repaid.” [Reported by Abu Dawood, 3565; and At-Tirmidhi, 1265; who graded it as Hasan. It was also authenticated by Al-Albani in Silsilat Al-Saheehah, 610] The term "zā‘eem" refers to the surety, "za‘āmah" refers to guaranteeing. CONSENSUS Scholars unanimously agree on the permissibility of Kafālah due to people's need for it and its role in alleviating harm from debtors. ------ المسألة الثانية: أركان الكفالة وشروطها The Pillars and Conditions of Kafālah PILLARS The Four Pillars of Kafālah: 1. The guarantor (الكفيل). 2. The obligee (المكفول له). 3. The guaranteed person (المكفول عنه). 4. The guaranteed obligation (المكفول به). CONDITIONS 1. The Kafeel must be legally competent to make voluntary commitments, whether male or female, as Kafālah is an act of voluntary charity. Consequently, Kafālah is invalid if undertaken by a person who is insane, mentally impaired, underage, or legally restricted due to financial irresponsibility. 2. The debtor's consent is not a prerequisite for the validity of the Kafālah, unlike the case for the Kafeel whose consent is a condition for the validity of Kafālah. *SUBJECT OF KAFĀLAH* It may relate to: 1. Financial Obligations: Known as "financial guarantee" (الضمان). 2. The Person: Known as "bodily/personal guarantee" (كفالة الوجه)/(كفالة البدن). --- المسألة الثالثة: في بعض أحكام الكفالة Some Rulings on Kafālah 1. Kafālah is valid for anyone who owes a financial obligation. 2. It is invalid to act as a Kafeel for someone subject to a penal punishment. 3. It is also invalid to act as a Kafeel for someone subject to qiṣāṣ (retribution). 4. If the guaranteed person dies and their presence cannot be secured, the Kafeel is released from their obligation. 5. A Kafeel (who guarantees only the presence of the debtor/guaranteed person to the creditor, a judicial council, or similar settings) is not responsible for the debt, but ensuring the appearance of the guaranteed person or assisting a liable guarantor. 6. If the Kafeel fails to fulfill their obligations, they become responsible for the debt. --- المسألة الرابعة: الضمان Financial Guarantees (Aḍh-Ḍhamān) DEFINITION