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All praise belongs to the Lord of all the worlds and peace and
blessings be upon the best human being, our Prophet Muhammad, his
family, companions and those who follow his guidance until the Day of
Judgment.
The perfection of the Islamic Sharee'ah is greatly evident in the fact
that the laws and provisions it has laid down provide for sublime tenets
and principles that attach much significance to the feelings of kindness
and mercy that should prevail among members of the Muslim society.
These tenets raise human acts to a lofty position whereby Muslims
develop a sense of social solidarity among each other, which in turn
fosters and deepens relations of cooperation and sympathy towards one
another. This comprehensive objective of the Islamic Sharee'ah is clearly
provided for in the Holy Qur'an and the Prophet's Sunnah. In the Qur'an
we read, "Help one another in righteousness and piety." (Al-Maa'idah:
6:3); "But do good; for surely Allah loves those who do good." (Al-
Baqarah: 2:195) and "Allah commands justice, the doing of good, and
giving to kith and kin." (An-Nahl: 16:90), to mention but a few verses. In
the Prophet's Sunnah, An-Nu'maan bin Basheer (may Allah be pleased
with him) narrated that the Prophet (may Allah's peace and blessings be
upon him) said, "The example of believers in their affection, compassion
and benevolence is like one body; If one part of it becomes ill the whole
body comes to its aid with fever and sleeplessness."2 Also, Abu
Hurayrah (may Allah be pleased with him) narrated that the Prophet
(may Allah's peace and blessings be upon him) said, "He who alleviates
a distress from a Muslim, Allah will remove a distress from him on the
Day of Judgment; he who makes it easy for someone who is insolvent,
Allah will make it easy for him in this life and the life to come; he who
covers [the pitfalls] of a Muslim, Allah will cover his pitfalls in this life
and the life to come and Allah is in the help of a servant as long as he is
in the help of his brother."3 Hudhayfah bin Al-Yamaan (may Allah be
2 Reported by Al-Bukhaaree and Muslim. See Al-Lu'lu' wal Majraan fima Ittafaq Alayhi
Ash-Shaykhaan, 3/196, no. 1671.
3 Reported by Abu Dawood in his Sunan, p. 747, Book of Morals, Part on Helping
Muslims, no. 4946.
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Dr. Ali bin Raashid Ad-Dubayyaan
pleased with him) also said, "Your Prophet (may Allah's peace and
blessings be upon him) said, 'Every good deed is a charity.'"4
Among the sublime Sharee'ah provisions which have covered this
principle of cooperation among Muslims is the guarantee contract which
is considered permissible with a view to supporting cooperation and
solidarity among members of the Muslim Nation.
Meaning of Guarantee
Linguistically speaking, the Arabic word kafaalah means the
guarantee5 or the security required for the fulfilment of a condition.
Hence, the kafeel and the kaafil is the guarantor. The term is also used to
mean 'surety, legal guardian and sponsor', among other things. The
plural is kufalaa'.6 Allah says, "You were not with them when they were
throwing their lots as to which of them should (kafala) be charged with
the care of Mary." (Aal 'Imraan: 3:44) The Prophet (may Allah's peace
and blessings be upon him) said, "The sponsor of an orphan and I in
Paradise are like these [two fingers]," joining together the middle and
index fingers [as he said this]."7
According to jurists, the term is given different definitions though all
of them revolve around the same meaning. Some jurists define it as
"joining a liability of a person to that of another person with regard to
commitment to fulfil due rights."8 This means that the guarantor's
liability is joined with that of the guaranteed person with regard to
securing fulfilment of a certain due right, which gives the owner of the
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Dr. Ali bin Raashid Ad-Dubayyaan
then said, 'O Allah's Apostle! Lead his funeral prayer, and I will pay his
debt.' So, he led the prayer."11
Abu Hurayrah (may Allah be pleased with him) also narrated,
"Whenever a dead man who was in debt was brought to Allah's Apostle
[for the funeral prayer], he would ask, 'Has he left anything to repay his
debt?' If he was informed that he had left something to repay his debts,
he would offer the funeral prayer, otherwise he would tell Muslims to
offer the funeral prayer for their companion. When Allah made the
Prophet wealthy through conquests, he said, 'I am more entitled than
other believers to be the guardian of the believers, so if a Muslim dies
while he is in debt, I am responsible for the repayment of his debt; and
whoever leaves wealth [after his death], it will go to his heirs."12
Abu Umaamah Al-Baahilee (may Allah be pleased with him) also
said, "I heard the Prophet (may Allah's peace and blessings be upon
him) saying, 'Allah has given every person his due share. Therefore,
there is no special bequest for an heir. A woman shall not spend from
her house except with the permission of her husband.' They asked, 'O
Messenger of Allah! Will this be the case even if it is food?' The Prophet
replied, 'Yes, even if it is food.' Then he added, 'A borrowed thing shall
be given back, the grant shall be repaid, the debt shall be repaid and the
guarantor is liable."13
Muslims have throughout the ages used the guarantee of each other
and Muslim jurists have been unanimous as to its legitimacy and
validity. This unanimous agreement is reported by Ibn Qudaamah in Al-
Mughnee14, Ibn Aabideen in Al-Haashiyah15, amongst other scholars.
11 Reported by Al-Bukhaaree in his Saheeh, Book of Transference of Debt from One Person to
Another, no. 2289. See Fathul Baaree by Ibn Hajar, 4/466.
12 Reported by Al-Bukhaaree in his Saheeh, Book of Transference of Debt from One Person to
Another, no.2298. See Fathul Baaree by Ibn Hajar, 3/477. It is also reported by Muslim in
his Saheeh, Book of Inheritance, 11/60.
13 Reported by An-Nassaa'ee, At-Tirmidhee, Ibn Maajah, Ibn Hibbaan and At-
Tabaraanee. The chain of narrators includes Isma'eel bin Ayyaash who reported it on
the authority of the Shaamites and it is a good narration. In general, the different
narrations of the hadeeth support each other. See At-Talkhees Al-Habeer by Ibn Hajar,
2/47 and Nasb Ar-Raayah by Al-Zayla'ee, 4/58.
14 Al-Mughnee, 4/491.
15 Haashiyat Ibn Aabideen, 5/285.
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21 As-Saawee, 2/155.
22 Al-Qaraafee, 9/192.
23 Ar-Ramlee, 4/434.
24 An-Nawawee, 14/47.
25 Ibn Qudaamah, 3/298.
26 Ibn Qudaamah, 7/101 and Mataalib Ulee An-Nuhaa by Ar-Ruhaibaanee, 3/316.
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Dr. Ali bin Raashid Ad-Dubayyaan
28 7/186.
29 3/340-341.
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30 2/674.
31 2/674.
32 14/47.
33 5/1608.
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Conclusions
Based on the above, the following conclusions can be drawn:
343/318.
35See also Ma'oonat Ulee An-Nuhaa, 4/413.
36 Fataawaas by the Permanent Committee of Iftaa, 14/189-190.
37 See Islamic Jurisprudence and its Proofs by Al-Zuhailee, 7/5093.
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