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Ruling 2329

If a person wishes to act as guarantor (ḍāmin)1 for paying off someone’s debt, it is valid (ṣaḥīḥ) only if he conveys to the creditor – by means of any words, even if they are not in Arabic, or actions – that he is acting as guarantor for paying him what he is owed. Furthermore, the creditor must convey his consent to this, but the consent of the debtor is not a condition [for the validity of the person to act as guarantor]. This transaction (muʿāmalah) is of two types:
 

  1. the guarantor transfers the debt (dayn) that was a liability on the debtor to himself. With this type of transaction, if the guarantor were to die before paying off the debt, then as is the case with other debts, the debt takes priority over inheritance (irth) [i.e. the debt would first need to be paid off before anything from his estate is inherited]. Usually, jurists (fuqahāʾ) intend this meaning when they discuss ‘suretyship’;
  2. the guarantor is committed to paying off the debt but is not liable to do so. With this type of transaction, if he does not make a will (waṣiyyah), the debt is not to be paid from his estate after his death.

1 Sometimes, the guarantor in a suretyship is called the ‘surety’.