Giving guarantees


Bahishti Zewar, Economics, Fiqh, Part 5-Principles of Business / Thursday, June 10th, 2010

1. Na‘îmah (name of a woman) was owing money to someone. You went and gave a guarantee that if she does not fulfil this debt, the person must come and collect it from you or that you are responsible for her, or that she owes you as well (i.e. since you have trusted her and lent her money, it is okay for the other person to trust her as well), or you mention some other words which could be regarded as a guarantee. The person to whom the money was owed also accepted this guarantee of yours. It now becomes wâjib on you to fulfil this guarantee which you gave. If Na‘îmah does not fulfil this debt, you will have to fulfil it and the creditor has the right to ask for the money from whomsoever he wishes, i.e. either from Na‘îmah or from you. As long as Na‘îmah does not fulfil her debt or does not have it waived, you will continue being her guarantor and being responsible for the fulfilment of the debt. However, if the creditor waives your responsibility and says that you are now completely absolved from this agreement and that he will not ask you to fulfil the debt, then this guarantee of yours will no longer remain. If the creditor does not accept your guarantee from the very beginning and says that he is not going to take your guarantee into consideration, you will not be responsible.

2. You had given a guarantee on behalf of someone. This person did not have any money to fulfil the debt. You therefore had to fulfil it on his behalf. If you had given this guarantee upon the insistence of the debtor, you can claim whatever money you paid to the creditor on behalf of the debtor. If you had given this guarantee out of your own free will, you will have to see who had accepted your guarantee first; was it the debtor or the creditor? If the debtor had accepted your guarantee first, it will be regarded as if you had given your guarantee on his instance. You can therefore claim your money from him. And if the creditor accepted your guarantee first, you do not have the right to claim it from the debtor. It will be regarded as if you fulfilled his debt out of your good-heartedness. If the debtor gives you the money on his own, it will be acceptable (but you cannot demand it).

3. If the creditor grants a respite of one month or fifteen days to the debtor, then he (the creditor) cannot demand this money from the guarantor during this period.

4. You did not give a guarantee to pay on behalf of the debtor. Instead, the money of the debtor was kept in your custody as an amânah. You therefore said that this person’s amânah is kept by you and that you will pay the creditor from this amânah. However, the amânah that was kept by you got stolen or disappeared through some other way. Your guarantee will no longer be applicable. It will not be wajib on you to pay it nor can the creditor demand it from you.

5. You wished to go somewhere, so you hired or rented a car or truck from someone. Another person came to the owner of the car and gave a guarantee that if you do not return it, he will give his own car to the owner. Such a guarantee is valid. If you do not return the car, the guarantor will have to give his own car to the owner.

6. You gave a certain item of yours to a person to go and sell it. He sold it but did not bring the money and says to you: “The money cannot go anywhere. I am responsible for it. If you do not get it, you must come and collect it from me.” Such a guarantee is not valid.

7. A person says: “Leave your fowl en-caged in this fowl-run. If the cat captures it, I am responsible. You must take it from me.” Alternatively, he says the following with regard to a sheep: “If the wolf captures it, I am responsible.” Such a guarantee is not valid.

8. If an immature boy or girl gives a guarantee, it will not be valid.

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