Liability of a guarantor
Category:
Business Dealings & Money Matters
According to Madhhab:
Hanafi
Reference:
1440-544
Question:
A
few of us stood guarantee for a cousin who owed a third party money. The third
party has not come to claim from us. If the debt is not paid are we still
liable to pay. How does this affect our estate and will. If the amount is 650
THOUSAND how do we determine how much is each guarantee is responsible for. If
we can't remember how many people stood guarantee because there is nothing in
writing, how do we deal with it?
few of us stood guarantee for a cousin who owed a third party money. The third
party has not come to claim from us. If the debt is not paid are we still
liable to pay. How does this affect our estate and will. If the amount is 650
THOUSAND how do we determine how much is each guarantee is responsible for. If
we can't remember how many people stood guarantee because there is nothing in
writing, how do we deal with it?
Answer:
1. Yes, if the debt is not paid (by the debtor), those individuals that have stood guarantee will be responsible to reimburse the creditor.
2. This will bear no consequence on the estate directly (in Shari’ah), rather the guarantor/s will be held liable to reimburse and pay the creditor.
3. The total debt will be divided equally amongst all the guarantors.
وإذا تكفل اثنان عن رجل بألف على أن كل واحد منهما كفيل عن صاحبه( الآخر )فما أداه أحدهما يرجع بنصفه على شريكه، قليلا كان( ما أداه )أو كثيراً( قال في الهداية: ومعنى المسألة في الصحيح أن تكون كفالة بالكل عن الأصيل، وبالكل عن الشريك؛ لأن ما أداه أحدهما وقع شائعاً عنهما، إذ الكل كفالة فلا ترجيح للبعض على البعض )اللباب في شرح الكتاب
4. We assume that the creditor accepted and agreed that if the debtor is unable to pay his debt, then certain individuals (the gurantors) will pay the outstanding debt, as acceptance from the creditor is a requisite for the validity of the guarantee agreement. We therefore suggest that you refer to the creditor as he should have some records or may be able to assist in this regard, in order to determine who and how many individuals stood as guarantors.
ولا تصح الكفالة إلا بقبول المكفول له في مجلس العقد )المختصر القدوري ص 491 )
AND ALLAH TA’ALA ALONE IN HIS INFINITE KNOWLEDGE KNOWS BEST
ANSWERED BY: Mufti Mohammed Desai
CHECKED AND APPROVED BY: Mufti Muhammed Saeed Motara Saheb D.B
Date: 13 Dhul Qa’dah 1440 English Date: 16 July 2019