Is the co-signer liable if the principal debtor cannot be brought forth (to the court)?
Chapter on Guarantee (Daman)
Al-Mughni
Book of Assignment (Transfer of Debt)
Primary text
The co-signing obligation is voided, and nothing is incumbent upon the co-signer if the principal debtor cannot be produced. This view is held by Shuraih, Ash-Sha'bi, Hammad ibn Abi Sulayman, Abu Hanifa, and Ash-Shafi'i. The basis for this ruling is that since the liability of the principal debtor for appearance has been waived, the co-signer is acquitted, similar to a case where the original debt itself is waived.
Supporting text
Al-Hakam, Malik, and Al-Layth hold that the co-signer must cover what is due from the principal debtor. This position is also narrated from Ibn Shuraih. Their evidence is that the co-signer serves as a security for the right, so when it becomes impossible to obtain it from the debtor, it is exacted from the security, just like a mortgage (rahn). Furthermore, since bringing the debtor was impossible, the liability falls upon the co-signer, just as if the debtor had absconded.