Does the guarantor (kafeel) discharge their obligation if they present the guaranteed party in a location other than the one specified in the guarantee contract?
Chapter on Guarantee (Daman)
Al-Mughni
Book of Assignment (Transfer of Debt)
Primary text
If the guarantee contract specifies a location for the presentation of the guaranteed party, and the guarantor presents them elsewhere, the guarantor is not discharged from the guarantee. This view is held by Abu Yusuf and Muhammad. The reasoning is that the guarantor failed to deliver what was stipulated to be delivered in a specific place, similar to failing to deliver the object of a *salam* (advance payment) in the stipulated location. Furthermore, presentation elsewhere might occur in a place where establishing proof (evidence) is impossible due to the absence of witnesses or other impediments, potentially leading to the guaranteed party escaping and the guarantor being unable to detain them.
Supporting text
The Qadi permits discharge if the presentation occurs elsewhere within the same city and the delivery is made there. Some scholars in our school hold that discharge occurs if the presentation is made anywhere the magistrate has authority, as the guaranteed party cannot refuse presentation before the judge, and proof can be established there. Another view suggests discharge depends on whether presenting the party elsewhere causes harm to the creditor; if there is harm, discharge does not occur, aligning with the ruling when presentation occurs before the stipulated term. Shafi'i scholars also exhibit differing opinions on this matter.