Rules of guarantee
Dhaman is one of the forms for legal consolidation of debts. The root of the word means “among or to include in.” This is because the liability of the guarantor becomes included in what is guaranteed or includes the guaranteed right. It has also been said that it meant to join or to add, because the liability of the guaranteed is joined or added to the liability of the guarantor.
Dhaman in Islamic law means “to meet someone else’s obligation and to maintain a guarantee for that.” This is similar to stating, “whatever you gave so-and-so will be on me.” Dhaman is permissible as indicated in the Qur’an, Sunnah and by ijmaa. Allah says, “And for him who produces it is (the reward of) a camel load, I will be bound by it:” [12:72] “I will be bound by it” means I guarantee it. The Prophet, sallallahu alayhi wasallam, said, “And the guarantor is a debtor” (Abu Dawud and Tirmithi), meaning that he is bound by what he guarantees. There is also ijmaa by the scholars on the permissibility of dhaman in general. The welfare of the society requires that, also. Sometimes there is even a need for it. Dhaman is a form of cooperation to do good and is an act of piety. It is a form of fulfilling the needs of other Muslims and removing their difficulties.
For dhaman to be valid, the dhamin (one who gives dhaman) must be eligible to use the money and spend it. Therefore it is not acceptable from minors (those underage) or incompetent persons who are placed under guardianship. The approval of the dhamin is also a condition for the validity of the dhaman. If he is compelled to do it, then it is not valid. This is because dhaman is a voluntary act to assume responsibility of rights and to approve of it is like donating money.
Dhaman is a contract of kindness meant to benefit and help the person who is given dhaman. So it is not permissible to receive compensation for it. To take compensation for dhaman is like taking a benefit from a loan. The dhamin has to pay off the debts of the person given dhaman when the payment is due. When he pays off the debt to the original lender (owner of the right) he expects to receive money from the guaranteed person later. If he then expects compensation for his dhaman, this would be like a loan that derives a benefit. Muslims should stay away from that. Dhaman is a means of cooperation and assistance and is not intended for exploitation or burdening of the needy.
Dhaman is valid when one says, “I guarantee it or I bear it, or I am bound by it, or I take your debt” or any other wording which indicates the meaning of dhaman. Islamic law didn’t require any specific statements for this, so custom defines it.
The owner of the right is allowed to demand his rights from the dhamin or the guaranteed person. The latter are both liable, so the owner of the right can ask from either one of them. The Prophet, sallallahu alayhe wasallam, said, “the guarantor is a debtor,” so he is just like the guaranteed in his liability to fulfill the right.
Some scholars have held that the owner of the right cannot demand his right from the dhamin unless it is impossible to demand it from the guaranteed. This is because dhaman is a branch and not a principal and one should not go to the branch mnless it is impossible to go to the principal. In addition, dhaman is considered a confirmation of a right like rahn (pawning or providing collateral) and the rahn should not be used as an exchange for someone’s right unless it is not possible to receive payment from the pawner (one giving rahn). It is also not acceptable by people in general to demand the right from the dhamin while the guaranteed is present and capable of paying off the debt. Ibnul Qayyim said, “This is a strong opinion.”
The dhamin is not relieved from the liability until the guaranteed is relieved from it. Dhaman is a contract, so if the principal is discharged, then the contract is dissolved.
It is permissible to have more than one dhamin. It is also permissible that every dhatnin may assume liability for the whole right or a part of it. None can be relieved of liability unless others have fulfilled the right or they all are relieved of it when the guaranteed is relieved.
It is not necessary for the validity of dhaman that the dhamin would know the guaranteed person. Therefore it is perwissible to say “I guarantee the one who borrowed from you.” The approval of the dhamin is what matters in these transactions. It is also valid to give dhaman to something known or unknown but later it may be revealed and known. In the story of Yusuf, Allah says, “And for him who produces it is (the reward of) a camel load; I will be bound by it.” The camel’s load was not specified at the time Yusuf said that, and as such the verse indicates that this act is permissible.
It is also permissible to give dhaman for all obligations from someone including debts and others.
Al-Jumuah vol.10 issue 12
Courtesy: www.everymuslim.co.za ?