Shar‘i Guarantee: Responsibility and Ruling on Payment
Written by: Imran Ayub Lahori
Whoever guarantees on behalf of a living or deceased person, it becomes obligatory upon him to pay the wealth upon demand.
◈ Lexical Explanation
The meaning of ḍamānat (guarantee) is “kafālah (sponsorship) or compensation.” It is derived from the verb ضَمِنَ يَضْمَنُ (sami‘a), which carries the sense of becoming a guarantor or surety. The word ḍāmin and ḍamīn mean “guarantor or surety,” while maḍmūn means “the one for whom a guarantee is undertaken.”
[Al-Munjid: p. 502, Lisān al-‘Arab: 8/89–90]
◈ Technical Definition
In legal terms, it means combining the liability of one person with the liability of another person in a claim.
[Al-Fiqh al-Islāmī wa Adillatuhu: 6/4143, Fatḥ al-Qadīr: 5/389, Badā’i‘ al-Ṣanā’i‘: 6/2, al-Durr al-Mukhtār: 4/260]
◈ Qur’anic Evidence
To understand the concept of guarantee, the following verse is sufficient:
➊ ﴿وَلِمَن جَاءَ بِهِ حِمْلُ بَعِيرٍ وَأَنَا بِهِ زَعِيمٌ﴾ [Yūsuf: 72]
“Whoever brings it shall have a camel’s load of provisions, and I am its guarantor.”
Ibn ‘Abbās (رضي الله عنهما) said: The word Za‘īm here means “kafīl (surety).”
[Al-Fiqh al-Islāmī wa Adillatuhu: 6/4142]
◈ Consensus of the Ummah
There is ijmā‘ (consensus) of the Muslim Ummah on the permissibility of ḍamānat.
[Subul al-Salām: 3/62, al-Mabsūṭ: 19/160, Mughni al-Muḥtāj: 2/198, al-Mughnī: 4/534]
◈ Prophetic Hadiths on Guarantee
➊ Abū Umāmah (رضي الله عنه) narrated that the Messenger of Allah (ﷺ) said:
«الزعيم غارم»
“The guarantor is liable.”
[Ṣaḥīḥ: Irwā’ al-Ghalīl: 1412, Abū Dāwūd: 3565, Ibn Mājah: 2405, Tirmidhī: 1265, Musnad Ṭayālisī: 1128, Aḥmad: 5/267, Bayhaqī: 6/88, Talḫīṣ al-Ḥabīr: 3/47, Ibn Ḥibbān: 7/277, Naṣb al-Rāyah: 4/58]
➋ Salamah ibn al-Akwa‘ (رضي الله عنه) narrated: We were sitting with the Prophet (ﷺ) when a funeral was brought. He (ﷺ) asked:
«هل ترك شيئا؟»
“Did he leave anything (property)?” They replied, “No.”
He (ﷺ) then asked:
«فهل عليه دين؟»
“Does he have any debt?” They replied, “Yes, three dīnārs.”
The Prophet (ﷺ) then said:
«صلوا على صاحبكم»
“Pray over your companion (yourselves).”
Hearing this, Abū Qatādah (رضي الله عنه) said:
«صل عليه يا رسول الله وعلى دينه»
“O Messenger of Allah! Pray over him, and his debt is upon me.” So the Prophet (ﷺ) led his funeral prayer.
[Bukhārī: 2289, Tirmidhī: 1069, Aḥmad: 3/330, Abū Dāwūd: 3343, Nasā’ī: 1962, Ibn Ḥibbān: 1162, Dāraquṭnī: 3/79, Ḥākim: 2/58, Irwā’ al-Ghalīl: 1416]
Imām al-Shawkānī (رحمه الله) wrote: The wisdom behind the Prophet (ﷺ) refraining from praying over one who had unpaid debt was to encourage people to pay off their debts during their lifetime, fearing that otherwise the Prophet (ﷺ) would not lead their funeral prayer.
[Nayl al-Awṭār: 3/624]
◈ Important Note
The one on whose behalf the guarantee is given does not become absolved merely by the guarantor’s words of acceptance. He will only be absolved once the liability has been actually discharged.
[See details: Aḥmad: 3/330, Abū Dāwūd: 3343, Nasā’ī: 1962, Dāraquṭnī: 293, Ibn Ḥibbān: 1162, Ḥākim: 2/58]
◈ The View of Abū Ḥanīfah (رحمه الله)
Regarding guarantee for the deceased, his condition is that the deceased must have left wealth in inheritance equal to the debt; otherwise, the guarantee is not valid.
[al-Hidāyah: 3/95, al-Ḥāwī: 6/454, al-Umm: 3/264, al-Kāfī: p. 399, al-Kharshī: 6/23, al-Mughnī: 7/105, Kashshāf al-Qinā‘: 3/374, Nayl al-Awṭār: 3/624]
However, the Prophet (ﷺ) never stipulated such a condition in any Hadith; hence, all conditions not found in the Qur’an and Sunnah are invalid and baseless.
◈ If the Guarantor is an Authorized Agent
If the guarantor is acting as an authorized representative (ma’mūr), then he has the right to seek repayment from the debtor.
Ma’mūr means that the debtor had instructed him to pay on his behalf with the assurance that when he has wealth, he will repay him. The debt remains upon the debtor, and payment remains his obligation.
◈ Qur’anic and Prophetic Evidence on Debt
➊ ﴿إِنَّ اللَّهَ يَأْمُرُكُمْ أَن تُؤَدُّوا الْأَمَانَاتِ إِلَىٰ أَهْلِهَا﴾ [al-Nisā’: 58]
“Indeed, Allah commands you to render trusts to whom they are due.”
➋ Abū Hurayrah (رضي الله عنه) narrated that the Prophet (ﷺ) said:
«لو كان لي مثل أحد ذهبا ما يسرني أن لا يمر على ثلاث وعندى منه شيئ إلا شيئ أرصده لدين»
“If I had gold equal to Mount Uḥud, it would not please me that three nights pass while I still possess anything from it, except something I kept aside to pay off a debt.”
[Bukhārī: 2389, Kitāb al-Istiqrāḍ: Bāb Adā’ al-Duyūn]
◈ Obligation of Producing the Person or Bearing Liability
Whoever guarantees to produce a person must either present him or bear the financial liability.
➊ The earlier Hadith already supports this.
➋ Abū Umāmah (رضي الله عنه) narrated that the Prophet (ﷺ) said:
«الزعيم غارم»
“The guarantor is liable.”
[Ṣaḥīḥ: Ṣaḥīḥ Abī Dāwūd: 3044, Abū Dāwūd: 3565]
