The Book Of ( Daman ) Guarantee

Guarantee means a guarantor's transferring of responsibility of the liability of a party on himself in favor of creditor.

Rule (848) In a guarantee contract there must be an offer by the guarantor and acceptance by the creditor by any means that indicates guarantor's commitment to guarantee paying of the loan and the agreeing of the creditor.

Rule (849) For precaution, the guarantee should be definite not conditional because it is not free from objection. The validity of the guarantee contract is not too far from validity if the guarantor is presently committed but the payment depends on not paying by the indebted party, the creditor demands payment from guarantor only if he is not paid.

Rule (850) It is necessary that the guarantor and the guaranteed parties are mature, of sound state of mind, free from compulsion, foolishness and bankruptcy. On the part of the indebted there is no such condition, if one guarantees the debt of a mentally ill person or a minor the contract is valid.

Rule (851) When the guarantor pays the guaranteed the specified amount, he can demand from the debtor if the guarantee arrangement is made on his request; otherwise, he cannot demand.

Rule (852) If the guaranteed relieves the guarantor of his commitment of paying the debt, he is acquitted of his liability, and he then cannot demand payment from the debtor, the same rule applies to partial arrangements; the guarantor asks the debtor only for what is paid. If the guaranteed agrees to a settlement for less than the original debt with guarantor, the latter can only demand the debtor for what he has paid, not the whole original debt. The same rule applies if he has originally guaranteed partial payment with the agreement of the guaranteed in general, the guarantor, asks the debtor to pay only what he has actually paid and not anything extra. Thus, if a third party donates to pay off the whole debt, the guarantor cannot demand from the debtor anything.

Rule (853) A guarantee contract is binding. The guarantor is not allowed to revoke it nor can the guaranteed do so.

Rule (854) It is difficult to establish the right of having the choice to annul the contract in favor of either the guaranteed or the guarantor by means of setting a condition or without it, apparently, it cannot be established.

Rule (855) If the debt is due for payment and a guarantor has guaranteed to pay later, thus the time is because of the guarantee not because of the debt itself, if the guarantor waived the time factor and pays the debt in cash, he can ask the debtor for payment and the same rule applies if the guarantor dies before the due time for payment.

Rule (856) If the loan is payable after an appointed time and a guarantor guarantees it for the same timing, then he ignores the time and pays it cash, he cannot demand payment from the debtor before the time for payment is due. The same rule applies if the guarantor dies during the term, the guaranteed gets paid from the legacy immediately, but the heirs can not demand the debtor for immediate payment before the payment is due.

Rule (857) If the debt is payable after an appointed time and the guarantor agrees to pay it immediately by the permission of the debtor, and pays the debt, apparently, it is lawful to ask the debtor to pay after paying to guaranteed, due to common understanding from his permission.

Rule (858) If the debt is payable after an appointed time and one guarantees it to pay before the payment is due, like if the time is three months and he has guaranteed to pay in a month, he cannot demand the debtor before three months, but if he has guaranteed to pay in six months, and then waives the three month and pays, he can ask the debtor for payment. The same rule applies if the guarantor dies after the time for payment is due and before the time he has agreed to pay.

Rule (859) If the guaranteed credits what the guarantor owes him as Khums or Zakat with the permission of high authority in Sharia or as charity, apparently, the guarantor can ask the debtor to pay him what he had guaranteed. The same rule applies if the guaranteed receives payment and then gives it back as gift etc., to guarantor, or the guaranteed dies and the guarantor receives what he had to pay as inheritance.

Rule (860) It is lawful to guarantee with the condition to have a mortgage from the debtor.

Rule (861) If the debtor has a mortgage for a debt the guarantee relieves him of the mortgage obligation.

Rule (862) If two people guarantee one's indebtedness it assumes a general sense: they each must pay equal amounts or as it is said, each one is obligated for the whole. Based on the latter view if the guaranteed acquits one of them particularly the other is not free from obligation, but there is objection in it, in fact, according to a strong reason, it is void.

Rule (863) If one is a debtor to two people one person can be the guarantor for them both or only for one particularly, to become the guarantor for either one unspecified is not valid. The same rule applies if two persons are the debtors to one person and one person becomes the guarantor for the both, if the guarantee is for both or one specified it is valid but if it is for either one unspecified, the deal is not valid.

Rule (864) If the debtor is poor it is not valid for the guarantor to pay the debt from Khums or Zakat, regardless, the guarantor presently owes such taxes or not.

Rule (865) If one's established debts are payable as Khums or Zakat, it is valid to guarantee such debts in favor of the high authority or his agent as guaranteed.

Rule (866) If one becomes a guarantor during his illness from which he dies, the guarantee is valid and the debt is paid out of his legacy, regardless, it is with the permission of the debtor or not.

Rule (867) It is valid to be a guarantor for the past maintenance expenses of a wife, but for future is objectionable and it is not valid for relatives.

Rule (868) It is valid to be the guarantor of an existing substance to guarantee to safeguard it, in effect it becomes necessary to return it to owner if the substance still exists and its kind if the substance itself is destroyed. Likewise is the case when one guarantees a buyer for what he pays, if for the merchandise someone else happens to be the more deserving or the sale is invalid. In general, to be a guarantor for a substance is to guarantee in the sense of safe-guarding the same not to become indebted, thus, it is another kind of guarantee.

Rule (869) To guarantee what a buyer builds or establishes on land that he has purchased against the possible claim of the land to belong to others; the validity of such guarantee is objectionable.

Rule (870) If one asks the other person," throw your property in the sea; I will guarantee to pay you", and the person does, the former is responsible for it, regardless, it is to save the boat or other reasons, the same rule applies, if one orders the other to give one Dinar to a needy or to do some work for him or another person, he is liable, if the other person has not intended to do such thing free.

Rule (871) If the debtor claims the existence of a guarantee and the creditor denies it, the words of creditor are accepted, the same is the rule if the debtor claims the existence of guarantee for the whole debt and the guaranteed denies for some of the debts.

Rule (872) If the creditor claims that someone has guaranteed a loan for him and he denies it, the words of the denying person are accepted.

If they agree about the guarantee but dispute the amount or about a condition of whether the payment was to be made soon or after an appointed time, the words of the guarantor are accepted. If they dispute whether there is a condition requiring the payment to be made after an appointed time when the debt is to be paid immediately or the dispute is about paying off or that the guaranteed has to waive something, the words of the guaranteed are accepted.

Rule (873) If the guarantor and the debtor dispute about whether the guarantor was authorized to pay the guarantor or the amount of debt guaranteed or about any condition on the debtor, the words of the debtor are accepted.

Rule (874) If a defendant denies to be a guarantor and the guaranteed manages to make him pay because of establishing enough testimony, the guarantor cannot demand any thing from the debtor, because of his agreeing that the guaranteed has unjustly made him to pay.

Rule (875) If the guarantor claims to have paid the debt but the guaranteed denies it and swears, the guarantor cannot demand the debtor to pay if he does not accept his words and approves what he says.