Surety (kafala)

In the lexicon kafala is guaranteeing or taking responsibility. In the terminology it joins the surety's obligation to the principal's in a claim for a person, a debt or a thing; the Hanafi definition is the joining of the surety's obligation to the principal's in debt, which the Hidaya prefers, while the Malikis, Shafi'is and Hanbalis define surety of the person as a commitment to produce a person before the court ².

Release (ibra') is the opposite, since it clears the obligation. Hamala is what one bears for another, such as blood money or a fine. Hawala is transferring a debt from one person to another. Qabala is in most usage a synonym of surety ^{2 3}.

Surety is lawful by the Qur'an, the Sunna and consensus. The verse of Surat Yusuf (verse 72) and the hadith that the guarantor owes the debt are cited, as is the report of Abu Qatada, who stood surety for a dead man's debt before the Prophet ﷺ prayed over him ^{3 4}.

The pillars are the formula, the surety, the creditor, the principal debtor and the thing or debt secured. Most schools hold that the surety's offer alone suffices, but the Hanafis and Muhammad require the creditor's acceptance ^{4 5}.

An immediate surety takes effect at once; a conditional one is attached to a condition; a deferred one is linked to a future date; a limited one lasts a fixed term. The schools differ on whether a conditional surety is valid and on deferment to an unknown date ^{5 6 7 8 9}.

A surety must have the capacity to make a gift, so a madman, a child or a coerced person cannot give surety; a person under restraint for debt may give surety, and a sick person may do so within a third of his estate ^{11 12}. Most jurists do not require the surety to know the principal, and the Hanafis require it only for conditional or deferred surety ^{12 13 14}. Acceptance by the creditor is disputed, and the principal's consent is not required ¹⁵.

A valid debt that is due, or promised, may be secured; surety for a warranty against defect or loss is valid by agreement; surety for an unknown debt is disputed ^{15 16 17}. Things may be secured by their own liability, by another's liability, or as trust property, according to the school ^{18 19 20}.

Most jurists hold surety of the person valid, on the verse of Surat Yusuf (verse 66) and on the report of Hamza ibn Amr al-Aslami; the Shafi'is hold it valid in the main view. The surety must produce the person at a place the creditor can reach the court, and he is released by producing the person or by his death ^{20 26 27 28}.

Where the surety acted at the principal's request, he may ask him to release him and may recover what he paid. Where he acted without the principal's request, the Hanafis give him no right of recovery, the Malikis allow it, and the Shafi'is distinguish cases ^{29 30 31 32}.

Surety ends when the principal's obligation ends, by payment or release; in its own right by a settlement with the creditor on the condition of release, by a release from the creditor, by cancellation of the contract, by the death of a surety of the person, and by handing over the thing secured ^{33 34}.