Recourse rights of the guarantor when payment is made without witnesses in the presence of the principal debtor.
Chapter on Guarantee (Daman)
Al-Mughni
Book of Assignment (Transfer of Debt)
Primary text
There are two views. The first, which is the opinion of Al-Shafi'i, states that the guarantor has recourse because if the principal debtor was present, the obligation to take precaution rested with him. His failure to safeguard the matter while present makes him the negligent party, not the guarantor. The second view is that there is no recourse because the payment made does not legally discharge the debt, similar to payment made in absence.
Supporting text
If the creditor seeks payment from the guarantor a second time, and the guarantor pays again, the guarantor has recourse against the principal debtor for the second payment because it evidently discharged his obligation. The view of Al-Qadi suggests recourse only for the second payment, as the first payment resulted in a private acquittal. The companions of Al-Shafi'i present a third view where the guarantor recovers nothing whatsoever, because the first payment did not result in apparent acquittal, and the second did not result in internal acquittal. The prevailing view maintains that the guarantor performed the act on behalf of the principal debtor with his permission; therefore, if the debtor is acquitted both outwardly and inwardly, the guarantor has recourse, similar to when proof exists.