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Draft:Kafala

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Kafala is one of the Islamic contracts which is used in economic affairs and legal claims. By virtue of this contract, one of the parties to the contract undertakes to the other party to summon a third party against whom they have a claim of a right. In this contract, the undertaking person is called "Kafil", the third party is called "Makful", and the other party to the contract is called "Makful lahu". The difference between Daman and Kafala has been considered to be that in Daman, from the beginning, the debt is transferred from the debtor to the responsibility of the guarantor, but in Kafala, the debt still remains on the responsibility of the debtor and the Kafil merely undertakes their summoning.

Jurists have considered the recitation of the contract formula, intellect, puberty, the parties to the contract having free will, the possibility of surrendering the Makful by the Kafil, and the specification of the Makful as the conditions for the validity of the Kafala contract. Also, they have counted factors such as the surrender of the Makful by the Kafil, the death of the Kafil or the Makful, and the collection of the right of the Makful lahu (the rightful owner) as causing the end of the Kafala contract.

Position

Kafala is one of the Islamic contracts which is used in economic affairs and legal claims.[1] In jurisprudential books, there is a chapter titled Kafala which contains the issues related to this contract.[2]
It is said that the creditor or the rightful owner, by employing this contract and taking a Kafil, protects their right so that when filing a lawsuit in court, they can easily summon the debtor or the person against whom they have made a claim, and this matter has an effective role in preventing the escape of the accused.[3]

Definition of Kafala

Kafala has been defined as a contract by virtue of which one of the parties to the contract undertakes to the other party to summon a third party against whom they have a claim of a right.[4] In this contract, the undertaking individual is called "Kafil", the third party is called "Makful", and the other party to the contract is called "Makful lahu".[5]
The word Kafala is a verbal noun and has been defined as attaching and accompanying;[6] therefore, in jurisprudential terminology, it means guaranteeing[7] and attaching the obligation of an individual to another individual.[8]
The Kafala contract has been considered an irrevocable contract for the Kafil and a revocable contract for the Makful lahu (claimant); meaning that after the conclusion of the contract, the Kafil cannot terminate it, but the Makful lahu can waive their right and not compel the Kafil to summon the third party (Makful).[9]

Difference between Kafala and Daman

The difference between the contract of Daman and the contract of Kafala has been considered to be such that in Daman, the debt is transferred from the debtor to the responsibility of the guarantor, and the debtor will not have anything on their responsibility towards the creditor, but in Kafala, the debt still remains on the responsibility of the debtor and the Kafil merely has the responsibility of summoning them.[10] Of course, according to the law of Iran, in case of the Kafil's violation, they must compensate the damage resulting from it.[11] According to 'Allama Hilli, one of the Shi'a jurists, if the Kafil undertook to pay a cost in case of not summoning the Makful, they must act in the manner they committed to.[12] Some jurists have made the payment of the cost conditional on the permission of the Makful.[13] Imam Khomeini holds the view in Tahrir al-wasila that the Kafil can resort to any legitimate means to summon the Makful, and it is not unlikely that if it does not have a religious or worldly evil or harm, they can seek help from a forceful person for this task (summoning the Makful).[14]

Conditions for the Validity of Kafala

Jurists and legal experts have stated conditions for the validity of the Kafala contract; including:

  • Reciting the offer and acceptance; for example, the Kafil says to the creditor with any wording and in any language: I guarantee to bring the debtor to you whenever you want, and the creditor accepts.[15] The Makful (debtor) has no involvement in forming the Kafala contract.[16]
  • The competence of the parties to the contract; the Kafil must be pubescent and sane and there should be no compulsion in their action,[17] but if the Makful lahu (claimant) was not pubescent or sane, if their guardian accepts the Kafala, it is valid.[18]
  • The possibility of surrendering the Makful by the Kafil;[19] if the Kafil's commitment to summon the Makful is normally impossible and unreasonable - like a farmer committing to summon a political prisoner of another country - the Kafala contract is void.[20]
  • The Makful must be specified; so if it is said I take the Kafala of one of these two people, it is not valid.[21]

End of Kafala

According to jurists, in case of the realization of one of the following cases, the Kafala contract ends:

  1. The Kafil, according to their commitment, presents the Makful and hands them over to the claimant (Makful lahu).[22]
  2. The claimant receives their right[23] or waives it.[24]
  3. The Kafil or the Makful dies.[25] But the Kafala does not drop with the death of the claimant, rather their heirs will be their successors.[26]
  4. The claimant breaks the Kafala and frees the Kafil from the Kafala.[27]
  5. The claimant (rightful owner) transfers their right to another by means of a Hawala or in another form.[28]

Notes

  1. ↑ See: Ṭāhirī, Ḥuqūq-i madanī, 1418 AH, vol. 4, p. 468.
  2. ↑ Najafī, Jawāhir al-kalām, 1404 AH, vol. 26, p. 185; Imam Khomeini, Taḥrīr al-wasīla, Dār al-ʿIlm, vol. 2, p. 34.
  3. ↑ Ṭāhirī, Ḥuqūq-i madanī, 1418 AH, vol. 4, p. 468.
  4. ↑ See: Ṭāhirī, Ḥuqūq-i madanī, 1418 AH, vol. 4, pp. 483-484; Banī Hāshimī, Tawḍīḥ al-masāʾil (muḥashshā - Imam Khomeini), 1424 AH, vol. 2, p. 427, m. 2322.
  5. ↑ Ṭāhirī, Ḥuqūq-i madanī, 1418 AH, vol. 4, p. 483.
  6. ↑ Maḥmūd, Muʿjam al-muṣṭalaḥāt, 1419 AH, vol. 3, p. 148.
  7. ↑ Saʿdī, al-Qāmūs al-fiqhī, 1408 AH, p. 322.
  8. ↑ Maḥmūd, Muʿjam al-muṣṭalaḥāt, 1419 AH, vol. 3, p. 149.
  9. ↑ Ḥillī, Kanz al-ʿirfān, 1425 AH, vol. 2, p. 71.
  10. ↑ Ṭāhirī, Ḥuqūq-i madanī, 1418 AH, vol. 4, pp. 485-486.
  11. ↑ Ṭāhirī, Ḥuqūq-i madanī, 1418 AH, vol. 4, p. 492.
  12. ↑ ʿAllāma Ḥillī, Tadhkirat al-fuqahāʾ, 1414 AH, vol. 14, p. 413, m. 580.
  13. ↑ Khomeini, Taḥrīr al-wasīla, Publisher: Institute for Compilation and Publication of Imam Khomeini's Works, vol. 2, p. 35.
  14. ↑ Khomeini, Taḥrīr al-wasīla, Publisher: Institute for Compilation and Publication of Imam Khomeini's Works, vol. 2, p. 35.
  15. ↑ Banī Hāshimī, Tawḍīḥ al-masāʾil (muḥashshā - Imam Khomeini), 1424 AH, vol. 2, p. 427, m. 2323.
  16. ↑ Najafī, Jawāhir al-kalām, 1404 AH, vol. 26, p. 186.
  17. ↑ ʿAllāma Ḥillī, Tadhkirat al-fuqahāʾ, 1414 AH, vol. 14, p. 392, m. 563 & 564.
  18. ↑ Imam Khomeini, Taḥrīr al-wasīla, Dār al-ʿIlm, vol. 2, p. 34.
  19. ↑ Imam Khomeini, Taḥrīr al-wasīla, Dār al-ʿIlm, vol. 2, p. 34.
  20. ↑ Ṭāhirī, Ḥuqūq-i madanī, 1418 AH, vol. 4, p. 489.
  21. ↑ ʿAllāma Ḥillī, Tadhkirat al-fuqahāʾ, 1414 AH, vol. 14, p. 394, m. 565.
  22. ↑ Banī Hāshimī, Tawḍīḥ al-masāʾil (muḥashshā - Imam Khomeini), 1424 AH, vol. 2, p. 429, m. 2325.
  23. ↑ Ḥusaynī ʿĀmilī, Miftāḥ al-karāma, Dār Iḥyāʾ al-Turāth al-ʿArabī, vol. 5, p. 433.
  24. ↑ ʿAllāma Ḥillī, Qawāʿid al-aḥkām, 1413 AH, vol. 2, p. 168.
  25. ↑ Najafī, Jawāhir al-kalām, 1404 AH, vol. 26, pp. 204 & 205.
  26. ↑ ʿAllāma Ḥillī, Tadhkirat al-fuqahāʾ, 1414 AH, vol. 14, p. 412, m. 579.
  27. ↑ Banī Hāshimī, Tawḍīḥ al-masāʾil (muḥashshā - Imam Khomeini), 1424 AH, vol. 2, p. 429, m. 2325.
  28. ↑ Ṭāhirī, Ḥuqūq-i madanī, 1418 AH, vol. 4, p. 502.

References

  • Imam Khomeini, Sayyid Rūḥ Allāh, Taḥrīr al-wasīla, Qom, Muʾassasa Maṭbūʿāt Dār al-ʿIlm, first edition, n.d.
  • Khomeini, Sayyid Rūḥ Allāh, Taḥrīr al-wasīla, Tehran, Nashr-i Muʾassasa Tanẓīm wa Nashr-i Āthār-i Imam Khomeini (ra), n.d.
  • Banī Hāshimī, Sayyid Muḥammad Ḥusayn, Tawḍīḥ al-masāʾil (muḥashshā - Imam Khomeini), Qom, Islamic Publications Office, eighth edition, 1424 AH.
  • Ḥusaynī ʿĀmilī, Sayyid Jawād, Miftāḥ al-karāma fī sharḥ qawāʿid al-ʿAllāma, Beirut, Dār Iḥyāʾ al-Turāth al-ʿArabī, first edition, n.d.
  • Ḥillī, Miqdād, Kanz al-ʿirfān fī fiqh al-Qurʾān, Qom, Intishārāt Murtaḍawī, first edition, 1425 AH.
  • Saʿdī, Abū Jayb, al-Qāmūs al-fiqhī lughatan wa iṣṭilāḥan, Damascus, Dār al-Fikr, second edition, 1408 AH.
  • Ṭāhirī, Ḥabīb Allāh, Ḥuqūq-i madanī, Qom, Iran, Islamic Publications Office, second edition, 1418 AH.
  • ʿAllāma Ḥillī, Ḥasan b. Yūsuf, Tadhkirat al-fuqahāʾ, Qom, Muʾassasat Āl al-Bayt (a), first edition, 1414 AH.
  • ʿAllāma Ḥillī, Ḥasan b. Yūsuf, Qawāʿid al-aḥkām fī maʿrifat al-ḥalāl wa l-ḥarām, Qom, Islamic Publications Office, first edition, 1413 AH.
  • ʿAbd al-Munʿim, Maḥmūd ʿAbd al-Raḥmān, Muʿjam al-muṣṭalaḥāt wa l-alfāẓ al-fiqhiyya, Cairo, Dār al-Faḍīla, 1419 AH.
  • Najafī, Muḥammad Ḥasan, Jawāhir al-kalām fī sharḥ sharāʾiʿ al-Islām, researched and corrected by ʿAbbās Qūchānī and ʿAlī Ākhūndī, Beirut, Dār Iḥyāʾ al-Turāth al-ʿArabī, seventh edition, 1404 AH.
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