What is the ruling when the guarantor states that the guaranteed party is free from the debt and the guarantee is voided?
Chapter on Guarantee (Daman)
Al-Mughni
Book of Assignment (Transfer of Debt)
Primary text
If the guarantor declares that the guaranteed party has been absolved of the debt, thereby rendering the guarantee void, or if the guarantor asserts that there was no debt upon the guaranteed party at the time of the guarantee, and the creditor denies this, the statement of the creditor prevails. This is because the established legal principle is the validity of the guarantee and the subsistence of the debt. The creditor must take an oath, and if the creditor refuses to swear (yakul), judgment is passed against them, implying the guarantor's claim is accepted upon the creditor's refusal.
Supporting text
A possible view suggests that the creditor should not be required to swear an oath when the guarantor claims they guaranteed someone who was debt-free, reasoning that the guarantor contradicts themselves, as one typically guarantees someone known to be indebted. However, the first opinion is stronger because the guarantor's claim remains plausible.