Is guaranteeing the physical presence (Kafalah bi al-badan) of someone in a court session valid if the debt owed is unknown?

Chapter on Guarantee (Daman)

Al-Mughni

Book of Assignment (Transfer of Debt)

Book 17 · Issue 1 · Bab 2

Open in Qurani

Primary text

The guarantee of a person's physical presence in a judicial session for a necessary debt is valid, whether the debt is known or unknown. This is supported by the ruling that the guarantee pertains to the body, which is known, not the debt itself. The validity of guaranteeing an unknown debt initially (guaranteeing the property/money) implies that a guarantee not directly involving property initially, such as guaranteeing the presence, is certainly valid. The body of a minor (sabi) or an insane person (majnun) can also be guaranteed because their presence may be required in court for testimony concerning damage (itlaf), and the permission of their guardian suffices for their own permission.

Supporting text

Some Shafi'i scholars hold that such a guarantee is invalid if the debt is unknown because it might become impossible to bring the guaranteed person to court, thus obligating the guarantor to pay the debt without being able to claim it back due to its unknown nature.