Is guaranteeing the physical presence of an imprisoned or absent person valid?
Chapter on Guarantee (Daman)
Al-Mughni
Book of Assignment (Transfer of Debt)
Primary text
The guarantee of the physical presence of an imprisoned person or an absent person is valid. This is supported by the principle that any security instrument (wathiqah) valid with presence is also valid in absence or imprisonment, such as mortgages (rahn) and property guarantees (daman). Imprisonment does not prevent delivery, as the imprisoned person can be handed over by the order of the judge or the one holding him, who then returns him to custody for both claims. For an absent person, the guarantor must proceed to him to bring him if his absence is not cut off (i.e., his whereabouts are known).
Supporting text
Abu Hanifa ruled that the guarantee for an absent person is invalid. Furthermore, concerning an absent person whose whereabouts are unknown, one opinion states that the guarantor is not obligated until a period has passed during which the absent person could have returned but did not.