Is a guarantee valid if it includes a condition that the guarantor (kafeel) be absolved from the liability?
Chapter on Guarantee (Daman)
Al-Mughni
Book of Assignment (Transfer of Debt)
Primary text
A guarantee (*kifalah*) stating, 'I guarantee the person of so-and-so, on the condition that so-and-so absolves the guarantor,' or 'on the condition that you absolve him from the guarantee,' is invalid. This is because it includes a condition that cannot necessarily be fulfilled, rendering the contract defective, and thus invalidating the guarantee. The ruling follows the principle that a condition that cannot be fulfilled invalidates the contract.
Supporting text
A possible opinion suggests the guarantee may be valid because the condition is stipulated as a transfer of the document (وثيقة) of liability from the guarantor to another party. Under this view, the guarantee would not be binding unless the guarantee holder absolves the first guarantor, as the guarantee was only undertaken based upon this specific condition.