AL-KAFALAH

1
AL-KAFALAH
 Kafalah:
 Conjoining of the guarantor's liability of the guaranteed

 Dhaman:
 Guarantee for future obligations involving property such
as debt obligation, the return of borrowed property, the
delivery of products, payment for purchase of products or
services or the security if goods.

 Hamalah:
 Guarantee for future obligations involving diyat (blood-
money)

2
DEFINITION
 Kafalah comes from the root word kafala which DEFINITION means
junction – joining combination responsibility.

 Literally
 Guarantee, bail, surety, responsibility, suretyship

 Technically
 The pledge given by the guarantor/surety (al-kafil) to a creditor (al-makful
lah) on behalf of the principal debtor (al- makful anh) to secure that the
guaranteed (al-makful bih) i.e. the debtor, will be present at a definite place,
e.g. to pay his debt, or fine, or, in the case of retaliation, to undergo
punishment.

 The SAC of BNM :

 A guaranteed contract on a certain asset, usufruct and/or service provided
by a guarantor to the parties involved.

3
EVIDENCE
 Al-Quran:

 They said, ‘‘We are missing the measure of the king. And for he who produces
it is [the reward of] a camel’s load, and I am responsible for it.’’ (Surah 12: 72)

 [Jacob] said, ‘‘Never will I send him with you until you give me a promise by
Allah that you will bring him [back] to me, unless you should be surrounded by
enemies, ‘‘And when they had given their promise, he said, ‘‘Allah, over what
we say is witness.’’ (Surah 12: 66)

4
EVIDENCE
 Hadith
 The prophet (s.a.w) said to the effect, “The Guarantor is the debtor”

 Narrated from Salamah bin al- Akwa‟, he says: “Once we were with
Prophet (s.a.w), then a group of people came with a funeral procession
and said “O prophet (s.a.w), please conduct the funeral rites for this
corpse.”. He asked: “Has he left anything?” They replied: “Nothing.” Then
he asked: “has he left any debt?” They replied: “Yes, three dinar,” then the
Prophet (s.a.w) said: “You should pray for him.” Then Abu Qatadah said:
O Prophet (s.a.w) please pray for him, I bear the liability of the debt,” Then
the Prophet (s.a.w) prayed for the corpse.
 (Narrated by al- Bukhari)

 Ijma‟
 The scholars of Islam unanimously agreed on the legitimacy of al-kafalah
in principle since it is a necessity in the society.

5
PILLARS OF AL-KAFALAH
1. Guarantor/surety (al-kafil)
 A person who gives the guarantee is also called surety. A person who agrees
to be responsible for another person's liability especially paying for his debt.

2. Creditor (al-makful lah)

 A creditor to whom the guarantee is given.

3. Principal debtor (al-makful anh)

 The person in respect of whose default the guarantee is given. He is also
called the principal debtor.

4. Guaranteed (al-makful bih) i.e. the debtor, things

 The claim itself whether it relates to the person or property.

5. Sighah
 Offer
 Acceptance

6
FLOWS OF AL-KAFALAH

Kafil (Gurantor)

Cr n ca rincip
e

ed
De nsibl s to b

.
ilit y

i
ito e of le de
l i ab

rc
e

s
bt o e

P
n c i e s p a gr e

an defa btor.
r ’s

r e t ul t
Makful Bih
o
r

rie by
nt o

ve
a ra

(Debtor/Things)
r
p le

his he
Gu

de
t
P ri

bt
Makful Anh Makful – Lah
(Principle Debtor) (Creditor)

7
TYPES OF AL-KAFALAH
 Al- Kafalah bi al-nafs
 Guarantee to bring someone to a specific authority, such as the judiciary

 Al- Kafalah bi al-mal

 Guarantee to return an asset to its owner
 Can be divided into three main categories:

1. Kafalah bi al-dayn
 Guarantee of repayment of another party's loan obligation .

2. Kafalah bi al-‟ayn/ kafalah bi al‟-taslim

 Guarantee of payment for an item or a guarantee of delivery in a transaction .

3. Kafalah bi al-darak
 Guarantee that an asset is free from any encumbrances – specific for transactions that
involve the transfer of titles of rights and ensures that an asset is free from any
encumbrances

8
AL-KAFALAH BI AL-NAFS
 Guarantee of Person
 In Suretyship for a person the guarantor is assuming the
responsibility to make sure the presence of the principal in a
lawsuit.
 This is also possible in cases where the principal owes the creditor.
 The guarantor is required only to make sure the presence of the
person.
 He is not liable to settle the debt on behalf of the principal.
 If the principal dies the guarantor is not bound to pay on his behalf.
This is because the guarantee given is for the presence of the
principal and not for the settlement of his debt.

9
AL-KAFALAH BI AL-MAL
 Kafalah for the property can be both for the settlement of a debt
(dain) or a guarantee that a certain specific thing (’’ain) would be
returned.

 In this case a guarantor is not freed of from liability if the creditor or

the owner of the thing dies. The heirs of the creditor or the owner of
the thing can demand that the guarantor settle the debt or return the
thing.

 For instance, the guarantor is liable to make sure that a certain

property bought by the buyer will be returned to him. The creditor
has the option of demanding repayment from either the principal or
the guarantor.

10
EFFECTS OF AL-KAFALAH
 Once a valid kafalah is concluded it establishes a right to the
creditor to claim the debt from the guarantor. The principal debtor is
not released from the debt.

 The creditor has an option whether to demand the payment of debt

from the principal debtor or from the guarantor.

 Kafalah is a gratuitous contract. This means that the service

rendered by the guarantor is done freely without any reward or
payment. However, it is possible that a guarantor may demand a
certain fee for his service.

11
THE ADVANTAGE OF AL-KAFALAH
 Kafalah is gratuitous contract and authenticate/
security contract

 Creditor:
 Could authenticate the loan repayment and ensure that he (the
creditor) can retrieve his money back by demanding the payment
from the guarantor in case of default payment by the debtor/
pledger.

 Entitles the creditor to call upon either the debtor or the guarantor
to perform the obligation and demand from one will not affect his
right to go after the other if the obligation is not fully satisfied.

12
THE ADVANTAGE OF AL-KAFALAH
 Debtor

 Minimize and spread his risk because the guarantor by his

guarantee, joined his liability to the creditor.

 Can convince the creditor to lend him the money since he has
somebody to back him up as the guarantor of payment. Nobody
will normally lend him any amount of money if he has nobody that
can support him and perform the obligation on his behalf in case
of default.

13
MODERN APPLICATION
 Two ways of application of al- kafalah
 When the financial institutions act as a guarantor, where the guarantee
is for its customer to a third party. Its a recourse guarantee. Institutions
stipulates that only recourse could be done by a financial institution
unless its shareholders and investors have authorized to make such
benevolent donations.

 Guarantee contracts
 Murabaha
 Ijarah
 Salam
 Istisna‟
 Sharikah and Mudarabah,
 Guarantee in documentary credit,
 Credit card based on contract of kafalah.

14