KAFAALAT (SURETY)
1) Literal Definition
Kafaalah is an Arabic word from the scale of Nasara,
Yansuru. It means to join. Allah Ta'ala has 99 qualities.
One is al-Kafeel as he joins (assists) in the affairs of
every creation.
Shar'ee Definition
'To attach a responsibility to another in a claim.' (Hidaaya)
Kafaalat is permissible. This is proven from two prime
sources of Shari'ah.
2) Sources
a) Qur'aan
"They said, 'We have lost the (golden) bowl of the king
and for him who produces it is (the reward of) a camel
load; and I will be responsible to it.' (Yusuf 72)
The officers have taken the responsibility (Kafeel) of
the lost item.
b) Hadith
Hadhrat Abi Umamah (Radhiallaahu Anhu) narrates that
Rasulullah (Sallallaahu Alayhi Wasallam) said, 'Aariya
(loaned item) should be fulfilled; Debt should be
fulfilled; Minha (loaned goat or sheep) be returned and
the Za'eem (Kafeel) is responsible.' (Nasbur Raaya)
Rasulullah (Sallallaahu Alayhi Wasallam,) said, 'The
one who looks after the Yateem (orphans), I and him will
be (close) like this in Jannah. Rasulullah (Sallallaahu
Alayhi Wasallam,) indicated with his two fingers
(forefinger and middle finger).' (Tirmidhi)
In view of the aforegoing, the Fuqahaa have ruled that
Kafaalah is permissible.
3) The Need for Kafaalat
At times, a person requires to take a loan, but the lenders
fear that the borrower may not be able to repay the debt or
pay timeously. The lender is prepared to advance a loan on
condition the borrower offers a guarantor.
The borrower then requests a third party to stand guarantee
for him, and he (the third person) agrees that if the borrower
fails to pay, then he himself will pay the debt. Now the
lender has peace of mind that he will recover his loan.
A person may be sued in court, and the courts want to keep
him in prison until such time until the case is investigated.
He requests bail but the court places a condition that he
offers a guarantor that when the accused is called to court,
this person will bring the accused.
4. Role Players
Makfool Anhu (the person who owes the debt - Debtor).
Makfool Lahu (the person claimihg the debt - Creditor)
Kafeel (the person who undertook the responsibility to
discharge the debt - Guarantor)
Makfool Bihi (the undertaken responsibility, e.g. debt,
etc.)
For example, Zayd requires a loan of R10,000 from Umar and
Bakr stands guarantee for Zayd to Umar. Zayd is the Makfool
Anhu umar is the Makfool Lahu. Bakr is the Kafeel and the
amount of R10,000 is the Makfool Bihi.
5. Procedure of Contract
'Proposal from the Kafeel (gu&'antor) and acceptance from
the Taalib (creditor).' (Badaai'e)
The proposal must be in clear words, for example, one
states, 1 assume the responsibility of a Kafeel' or It is upon
me, etc.
Conditions
Generally, in Fiqh the Fuqahaa discuss the Ahliyyah
(qualifications) to carry out any particular act and
generally, there are four qualifications: a) Muslim, b) Free,
c) Sane, d) Adult
In Kafaalat, the common conditions for the Makfool Anhu,
Makfool Lahu and Kafeel are to be free, sane and adult. That
implies that the Makfool Anhu and / or Kafeel cannot be a
slave. Either one of the two cannot be insane or immature
(under age in Shari'ah). Besides the common condition, the
Makfool Anhu, Makfool lahu have an additional condition of
being known.
Makfool Anhu (Debtor)
‘The Makfool Anhu should be known.' (Badaai'e)
Makfool Lahu (Creditor)
(the Makfool Lahu) should be known (Badaai'e)
If the Makfool Lahu is unknown, the purpose of Kafaalat,
consolidating the debt will not be achieved.
Makfool Bihi
'The Makfool bihi must be indebted to the Makfool Anhu.' (Badaai'e)
'Irrespective of the type of debt, cash, person or item. As
regards an item, that is of two types, trust and debt. If an
item is a trust, there is no Kafaalat in that, for example,
Wadiyyat and goods of partnership; An indebted item is of two
types, indebted in itself, for example, a) a Ghasb item or
that which one took possession of through a Bay' Faasid. B)
Indebted due to another, for example, the sold item before
taking possession of it and Rahn. Kafaalat is correct in
this.' (Badaai'e)
Types of Kafaalat
* Kafaalat bin-Nafs (Bail)
* Kafaalat bil Maal (Surety)
Kafaalat bin Nafs
1) The Kafeel is required to bring the Makfool Bihi as
ordered. That includes time and place.
2) The Kafeel is required to bring to a place where the
Makfool Lahu is able to claim his rights from him. Therefore,
if the Makfool Bihi is presented in a town or jungle, he has
not discharged his responsibility.
3) If the Kafeel failed in his responsibility without any
valid reason, he will be imprisoned if it is proven by two
reliable witnesses that the person is causing mischief.
4) A valid excuse will be, for example, the Makfool Bihi
went missing to the land of enemies (Darul Harb).
5) There is no Kafaalat in Hudood because Rasulullah (Sallallaahu
Alayhi Wasallam) said, 'Laa Kafaalat fi hudd' (There is no
Kafaalat in hudd). (Nasbur-Raaya)
In other words, the Qaadhi cannot, compel the accused to
produce a Kafeel. However, in the matter of Qisaas, Imaam Abu
Yusuf and Imaam Muhammad regard Kafaalat as necessary as here
the rights of individual persons (Huqooqul Ibaad) are
involved.
Kafaalat bil Maal
General Principle
There is flexibility in Kafaalat (and ambiguity in it will
be tolerated). (Hidaaya)
Based on that principle, the Fuqahaa have ruled,
'(Kafaalat) in Kafaalat bil Maal is permissible whether the
Makfool Bihi is known to him or unknown.' (Hidaaya)
Therefore, if a Kafeel says, ‘I am responsible for whatever
you owe’, the Kafaalat will be valid
1) The Makfool Lahu has the right to claim the debt from
both parties Aseel and Kafeel, or any one he choose to.
2) The Kafeel may place a condition in assuming the
responsibility, for example, he says, 'Whatever you purchase
from a particular person, it is upon me.
3) The Kafeel says that if the Asil does not pay, then he
will pay. In this case, the Makful lahu or creditor must
first claim from the Asil. If he does not pay, then he can
ask the Kafeel.
4) The Makful lahu has given the Asil a month in which to
pay, or has given the loan on the basis of a promise to
repay after one year. In this case, for one month or for one
year he cannot claim from the Kafeel. Once this period is
over, then he can claim from the Kafeel.
5) The Kafeel cannot demand the money from the Makfool
Anhu before fulfilling the debt.
Whatever the Kafeel pays in Kafaalat, he is entitled to
claim that back from the Asil. If he pays the Makful Lahu with
something better than what he made Kafaalat of, then he is
only entitled to claim what he undertook. For example, if he
undertook responsibility for 50kg of brown flour and paid with
50kg of white flour, then he can only claim 50kg of brown
flour from the Asil. His giving of 50kg of white flour is not
the responsibility of the Asil.
In the opposite case, where he pays with something of a
lower quality and the creditor accepts it, he is still
entitled to claim from the Asil the quality that he originally
undertook responsibility for.
Termination of Kafaalat
If the Makfool Lahu relieves the Makfool Anhu, the Kafeel
will be relieved, not vice versa.
If the Kafeel or the Asil dies, then the responsibility of
Kafaalat terminates because either the person taking the
responsibility or the person taking the responsibility or the
person giving the responsibility no longer remains present.
But if the Makfool Lahu or plaintiff, that is to say, the
person bringing the case against him dies, then the Kafaalat
does not terminate.
Miscellaneous
The railways are responsible for bringing their passengers
and their good to the place to which they have purchased a
ticket or booked their goods. Therefore, if an accident occurs
and passengers suffer loss and injury, or they lose their
tickets in the accident, the railways are responsible for
compensation for loss and injury, and must also take them to
their destination without a ticket. If they do not give
compensation, they may be sued in court. However, if it is
established that a certain passenger was travelling without a
ticket, then the railways have no responsibility to take him
to his destination. (Commercial Law of Islam - Mawlana
Mujeebullah Nadwi part 3)
Kafaalat in Posting
Similarly, the post office is Kafeel of the letters,
registered mail, money orders, parcels, etc. sent through
them. That is to say, if their loss is proved, then the Post
Office is liable for compensation. By taking payment, they
have undertaken an obligation to bring the goods to the person
they are sent to, who in this case is the Makfool Lahu. (Ibid)
Freight Insurance
If a shipping company or insurance company undertakes
responsibility to take some goods to some specified place, in
return for a fee, and undertakes that if the goods get lost,
they will be responsible for compensation, then this is
permissible. The shipping or insurance company will be liable.
However, there is a difference between the status of a
shipping company and an insurance company. The shipping
company will be Ajir Mushtarak but the insurance company is in
all cases Kafeel.
Important Note
1. The goods consigned must be listed honestly and
correctly. If anyone lists more than there actually is, then
this is a sin.
2. Present day Life and Property Insurance should not be
confused with this, these things are in reality gambling and
interest transactions.
Conclusion
1. The discussion is based on the broad principles of
Wakaalah. We have not discussed the Juziyyaat (branches)
flowing from the broad principles.
2. We have limited the discussion on Shar'ee issues and did
not engage in the secular aspects of Wakaalah as we need to
study the secular issues before issuing Shar'ee rulings on
them.
and Allah Ta'ala Knows Best
Mufti Ebrahim Desai
Last modified:
July 19, 2007
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