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Rules of Surety (Zamanat)

2413. If a person wishes to stand surety for the repayment of the debts of another person, his act in this behalf will be in order, only when he makes the creditor understand by his words in any language, or by conduct, that he undertakes the responsibility for the repayment of the debt, and the creditor also accepts the deal. It is not necessary that the debtor, too, should be agreeable. Also, it is possible to sign surety contract or do what other act, which makes creditor understand and he accept it.

2414. It is necessary that the guarantor and the creditor are adult and sane, and have not been coerced by anyone. Furthermore, they should not be feeble-minded or bankrupt who is barred by fully competent Mujtahid from right of discretion over his property.

2415. When a person gives a guarantee with a condition, as when he says: “if the debtor does not repay your debt, I shall pay it,” it is a matter of Ishkal from Shariah to accept such a conditional guarantee as valid; but as a customary contract the guarantor must do his/her commitment.

2416. A man giving guarantee should know that the person for whom he stands surety is actually a debtor. If someone is still considering to take a loan, one cannot stand as a guarantor till such time when the loan has been taken.

2417. A person can stand surety for someone only when the creditor, the debtor, and the property given as loan, are actually specified. Therefore, if there are two creditors of a person, and a person wishing to guarantee says: “I guarantee to pay the debt of one of you” his being a guarantor is void; because he has not specified as to whose debt he would pay. Also, if a person is the creditor of two persons, and a person giving guarantee says: “I guarantee to pay you the debt of one of them,” his becoming a guarantor is void, as he has not specified which person’s debt he would pay. Similarly, if a person s owed 30 kilos of wheat and 100 t by another person, and a person wishing to be a guarantor says: “I guarantee to pay one of your two debts,” and does not specify whether he guarantees payment of wheat or money, the guarantee is not in order, as an obligatory precaution.

2418. If a creditor gifts the guarantor with the debt owed to him, the guarantor cannot claim anything from the debtor, and if the creditor gifts him with a part of his debt, the guarantor cannot demand that part from the debtor.

2419. If a person becomes a guarantor for the payment of someone’s debt, he cannot withdraw from his responsibility as a guarantor.

2420. As a precaution, the guarantor and the creditor cannot stipulate an option for cancellation of the guarantee at any time they wish to do so.

2421. If a person was capable of paying the debt of the creditor at the time he stood as a surety, the creditor cannot cancel his guarantee and demand the payment of debt from the first debtor, even if the guarantor may have become poor afterwards. And the same rule will apply if the surety at the time of guaranteeing was not capable of paying the debt, yet the creditor agreed to his becoming the guarantor despite knowing it.

2422. If at the time of standing surety, a person was incapable of paying the debt of the creditor, and the creditor not knowing the position, now wishes to cancel his guarantee, it will be a matter of Ishkal, especially if the surety becomes capable of paying the debt before the creditor takes notice of the matter.

2423. If a person guarantees the payment of the debt of a person, without obtaining his permission, he cannot demand anything from the debtor.

2424. If a person guarantees the payment of debt with the permission of the debtor, he can demand that amount or quantity from the debtor even before having paid anything to the creditor. But if he paid, or delivered a commodity other than the one, which was owed, he cannot ask the debtor to pay or deliver to him that commodity. For example, if the debtor owed 10 tons of wheat, and the guarantor settled the debt with 10 tons of rice, he cannot demand rice from the debtor, except when the debtor agrees to the arrangement, in which case, there is no objection.