Chapter of Guaranty (Daman) (1)
822- Issue: He said: "And whoever has a right guaranteed on his behalf after it became due, or says: 'Whatever you give him, it is upon me,' then he is obligated to pay whatever it is established that he gave."
Guaranty (Daman) is the combining of the guarantor's liability with the liability of the person on whose behalf the guaranty is made in committing to the right. Thus, it is established in the liability of both of them, and the holder of the right has the option to demand it from whomever he wishes between them. Its etymology is from 'al-damm' (joining). The Qadi said: It is derived from 'al-tadmin' (ensuring), because the liability of the guarantor encompasses the right. The basis for its permissibility is the Book, the Sunnah, and Consensus (Ijma'). As for the Book, it is the saying of Allah the Exalted: "And for whoever brings it, there is the load of a camel, and I am a guarantor (za'im) for it." (3). Ibn Abbas said: The 'za'im' is the 'kafil' (guarantor). As for the Sunnah, it is what was narrated from the Prophet (may Allah bless him and grant him peace) that he said: "The guarantor is a debtor (al-za'imu gharim)." Narrated by Abu Dawud and al-Tirmidhi (4), who said: A Hasan (good) hadith. Al-Bukhari (5) narrated from Salama ibn al-Akwa' that the Prophet (may Allah bless him and grant him peace) was brought a man to pray over him, and he said: "Does he have any debt?" They said: "Yes, two dinars." He said: "Did he leave anything for them to be paid off?"
(1) This title is from M alone. The title "Book of Transfer and Guaranty" previously appeared. (2) In the original, A, M: "al-damin". (3) Surah Yusuf 72. (4) Reported by Abu Dawud, in: Chapter on Guaranteeing Loaned Items, from the Book of Sales. Sunan Abi Dawud 2/266. And al-Tirmidhi, in: Chapter on what has been reported that loaned items must be returned, from the Chapters of Sales. 'Aridat al-Ahwadhi 5/269. It was also reported by Ibn Majah, in: Chapter of Kafala (Guaranty), from the Book of Charity. Sunan Ibn Majah 2/804. And Imam Ahmad, in: al-Musnad 5/267, 293. (5) In: Chapter: If one transfers a deceased person's debt to a man, it is valid, from the Book of Transfer (Hawala); and in: Chapter of whoever guarantees a debt for a deceased person, he has no right to retract, from the Book of Kafala (Guaranty). Sahih al-Bukhari 3/124, 126. It was also reported by al-Nasa'i, in: Chapter of Praying over one who has a debt, from the Book of Funerals. al-Mujtaba 4/53. And Imam Ahmad, in: al-Musnad 4/47, 5/297, 304.
