Kafaalah (Surety)

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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