- Kafālah is when a person undertakes to present a debtor whenever the creditor seeks him. Someone who takes on such an undertaking is called a ‘surety’ (kafīl).
- A kafālah is valid (ṣaḥīḥ) only if the surety conveys to the creditor – by means of any words, even if they are not in Arabic, or actions – that he undertakes to present the debtor whenever he wishes, and the creditor accepts. And based on obligatory precaution (al-iḥtiyāṭ al-wājib), the debtor’s consent is also a requirement for the validity of the kafālah. In fact, the obligatory precaution is that he must be a party of the contract as well, i.e. both the debtor and creditor must both accept the kafālah.
- The surety must be of the age of legal responsibility (bāligh), sane (ʿāqil), and no one must have compelled him [to enter into the kafālah agreement]. In addition, he must be able to make the person for whom he is the surety appear, and he must not be foolish with finances (safīh).(1) Furthermore, he must not have been proclaimed bankrupt (mufallas) in the event that making the debtor appear requires him to have disposal over his property.
- One of five things annuls a kafālah agreement:
the surety presents the debtor to the creditor, or the debtor submits himself to the creditor;
2. the debt owed to the creditor is paid;
3. the creditor pardons the debt he is owed or transfers it to another person;
4. the debtor or the surety dies;
5. the creditor releases the surety from the kafālah.
- If a person forcefully frees a debtor from the hands of the creditor, in the event that the creditor does not have access to the debtor, the person who freed the debtor must present him to the creditor or pay off his debts.