Seadet-i Ebediyye - Endless Bliss Fifth Fascicle

38 – KAFÂLAT and HAWÂLA
(SURETY and TRANSFER)
To be (a) kafîl or dhâmin (to stand surety) means for a (third)
person to promise responsibility for the payment of something that
is claimed from someone by a certain person or by certain people.
The item to be paid may be an ’ayn or a deyn, as well as the
delivery of a person. It is essential that the creditor be known. The
kafâlat transacted by saying, for instance, “I stand surety for
whatsoever anyone sells to so and so,” will not be sahîh. Hence,
promissory notes of debt cannot also stand for promissory notes of
kafâlat because the subsequent creditor is not determined as they
are being written. The final creditor cannot claim anything from
the person who wrote out the promissory note of debt or from the
one who endorsed [or transferred] it. It is not permissible to stand
surety for compensation in cases of (damage or) loss suffered
through goods that are entrusted to someone by way of
agreements termed rehn (giving as a security), vedî’a (giving for
safekeeping), ’âriyat (lending for temporary use), and renting, or
through a (commodity for sale, termed) mebî’. It is permissible for
the delivery of these goods when they are existent (and intact).
The person who acts as a surety will not have to pay anything in
case these goods perish (or are destroyed). It is permissible to act
as a surety for the tenant in an ijâra, (i.e. rent, rental,) or for the
person who has accepted the transfer in a hawâla, (i.e. transfer.)
Also, one may stand surety for payments such as themen and
mahr. The creditor, (i.e. person accredited with these rights,) may
extract these rights from the debtor as well as from the surety,
depending on his own choice. It is premissible for a Muslim to act
as a surety for a (non-Muslim citizen called) dhimmî. Not only
would it be an unconditional instance of acting as a surety to say,
“I stand surety for such and such amount of debt that so and so
owes to so and so,” but also it is permissible to act as an
unconditional surety by saying, for instance, “I will pay you the
money that so and so owes you if he himself does not.” According
to three Madhhabs, (i.e. the Madhhabs of Mâlikî, Shâfi’î, and
Hanbalî,) and also according to Imâm Abû Yûsuf (of the Hanafî
Madhhab), kafâlat will be sahîh upon a statement only on the part
of the person to stand surety. It is not conditional on the debtor’s
and the creditor’s accepting that person’s acting as a kefîl (surety).
However, the creditor may refuse the surety when he hears it (or
of it). A surety not accepted by the debtor, (if he has had to pay
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