Is the consent of the creditor and the debtor upon whom the debt is transferred required for the validity of debt transfer (hawala) when the transfer is made to a solvent person?
General Chapter
Al-Mughni
Book of Assignment (Transfer of Debt)
Primary text
When the debt is transferred to a person possessing solvency (mali'), the creditor and the person upon whom the debt is transferred are obligated to accept, and their consent is not considered. The evidence for this is the Prophet's saying, 'If one of you extends a claim against a solvent person, let him extend it.' Furthermore, the original debtor has the right to discharge the debt himself or through his agent, and he has appointed the person upon whom the debt is transferred as his substitute in receiving payment, thus the acceptance by the latter is obligatory, similar to appointing someone to retain possession (of goods).
Supporting text
Abu Hanifa holds that the consent of both parties is required because the transfer is a form of transaction (mu'awada), necessitating consent from both contracting parties. Malik and Al-Shafi'i hold that the creditor's consent is required because his right is originally against the original debtor, and it cannot be moved to another's liability without his consent, just as he cannot be forced to accept something other than the debt itself (as payment).