Is the principal debtor absolved of liability simply by the act of guaranteeing the debt?

Chapter on Guarantee (Daman)

Al-Mughni

Book of Assignment (Transfer of Debt)

Book 17 · Issue 2 · Bab 2

Open in Qurani

Primary text

The principal debtor is not absolved solely by the guarantee, unlike the assignor (المحيل) who is absolved upon assignment before acceptance. The right remains established against the guarantor, while also remaining against the principal debtor. The creditor has the right to demand payment from whomever they choose, both during life and after death. This is the established view of Al-Thawri, Al-Shafi'i, Ishaq, Abu Ubaid, and the Ahl al-Ra'i (Hanafi scholars). Evidence supporting the view of absolution includes the narration of Abu Sa'id al-Khudri where the Prophet, peace be upon him, refrained from leading funeral prayer until Ali guaranteed two dirhams, after which the Prophet prayed and praised Ali for freeing his brother's pledge (رهان). Further evidence is in the narration of Jabir where the Prophet, peace be upon him, asked about the debt of the deceased; upon Abu Qatadah guaranteeing it, the Prophet asked if the deceased was thereby acquitted, and upon confirmation, the Prophet prayed, stating the creditor's right was secured and the deceased was acquitted. The principle that a single debt cannot be incumbent upon two parties simultaneously is cited, akin to assignment.

Supporting text

A dissenting opinion, held by Abu Thawr, Ibn Abi Layla, Ibn Shubrumah, and Dawud, holds that suretyship (guarantee) and assignment are identical, both transferring the debt from the principal debtor's liability. Furthermore, the view held by Abu Bakr Abd al-Aziz states that the living principal debtor is not absolved merely by the guarantee, but for the deceased, there are two narrations from Ahmad: one stating acquittal upon guarantee due to the purpose of the guarantee in his case being acquittal, and the second stating no acquittal except upon payment, viewing it as a guarantee that does not release the principal debtor as it does not for the living.