Is the consent of the guaranteed party (Makful Lah) required for the validity of the guarantee?
Chapter on Guarantee (Daman)
Al-Mughni
Book of Assignment (Transfer of Debt)
Primary text
The consent of the guaranteed party is generally not considered necessary because the guarantee is a security document for him, involving no physical possession, thus being valid without his consent, similar to testimony (Shahadah). Furthermore, it is an imposition of a right upon the guarantor for the benefit of the guaranteed party without compensation, so consent is not required, analogous to a vow (Nathr). The view that consent is not required is adopted.
Supporting text
There is a differing opinion, which is the position of Imam Al-Shafi'i, that the consent of the guaranteed party is required because the objective of the guarantee is to produce the guaranteed person. If a person guarantees another without his permission, the guarantor is not obligated to bring him forth. Additionally, the guarantor establishes a right over the guaranteed person—the right to bring him forth—without his consent, which is impermissible, unlike suretyship (Dhaman), where the surety discharges a debt without needing the consent of the debtor.