Kafalah

Kafalah (Guarantee): Literally: kafalah is assurance, its original meaning is related to joining and commitment. Technically: Jurists differed about the definition of guarantee based upon their differing opinions on its resulting effect. The majority of Hanafis defined it as: joining the liability of the warrantor to that of the principal in claims regarding personal injury, debts or material assets. A second definition of theirs: joining the liability of the warrantor to the liability of the principal for a debt. They consider the first definition to be more valid. The Malikis, the Shafis in their most famous opinion, and the Hanbalis define a guarantee as: the commitment by an adult of sound mind to make sure that a person who is required to appear in court does so. Guarantees are divided into two types: a guarantee of money, and most jurists call it Daman; or it could be a guarantee of a person, which some call it: guarantee of body or guarantee of face. It is in general legitimate, based upon the Qur'an, the Sunnah and the consensus of Muslim jurists. The Shari'ah Advisory Council of Bank Negara Malaysia defines kafalah as a guaranteed contract on a certain asset, usufruct and/or service provided by a guarantor to the parties involved. Generally, kafalah means a guarantee or to take on the responsibility for the payment of a debt or for a person's appearance in court. The majority of Muslim scholars view that the terms daman and kafalah carry the same meaning. However, some scholars confine the definition of daman to a guarantee of property while the term kafalah means guarantee of al-nafs or oneself. Classical jurists defined kafalah as a conjoining of the guarantor's liability to the liability of the guaranteed (Al-Sharbini, Mughni Al-Muhtaj, 2/198). It may also be defined as a contract which combines one's liability with another person's liability. Legally, in kafalah, a third party becomes surety for the payment of debt unpaid by the person originally liable. The degree or scope of suretyship should be known and should not come with preconditions. It is a guarantee given to a creditor that the debtor will pay the debt, fine or any other liabilities. See ISRA Islamic Financial System: Principles and Operations for further details.

Total Fatwas : 94
No. Title
1 Can an Islamic Bank State in an L.C. or Letter of Guarantee That the Fee Charged by a Conventional Bank Shall Be Obtained from the Beneficiary?
2 Resolution No. 148 (6/16): Al-Kafalatu Al-tijariyyah (Commercial Guarantee)
3 Can the Guarantor Charge for the Guarantee?
4 Resolution No. 12 (2/12): Letter of Guarantee
5 Can the End Customer Guarantee the Work of the Contractor in a Construction Contract?
6 Guarantee From A Contractor
7 Permissibility Of Muqawalah in Construction
8 A Fee for Renewal of a Bank Guarantee
9 Can a Trucking Company Charge Its Truckers a Commission for Acting as an Intermediary with the Government?
10 Can an Islamic Bank Ask a Client to Provide a Conventional Bank as a Guarantor?

 

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