What is the ruling on the right of recourse for a guarantor who pays the debt while intending recourse, given the principal debtor's prior authorization?
Chapter on Guarantee (Daman)
Al-Mughni
Book of Assignment (Transfer of Debt)
Primary text
When a guarantor pays the debt with the intent of recourse, and the principal debtor had previously authorized the guarantee and subsequently authorized the payment, the guarantor has the right of recourse. This applies whether the principal debtor explicitly said, 'Guarantee on my behalf,' or 'Pay on my behalf,' or used general language. Malik, Shafi'i, and Abu Yusuf hold this position. Abu Hanifa and Muhammad rule that if the principal said both 'Guarantee on my behalf' and 'Pay on my behalf,' recourse is established. If the principal only said, 'Pay this,' recourse is denied unless the guarantor is a close associate with whom the debtor frequently borrows or deposits, in which case recourse is preferred by Istihsan (juridical preference) because the debtor may implicitly instruct his associate to pay. The argument for recourse is that authorizing the guarantee implies authorization for payment, which should be treated the same as explicit authorization, especially considering the case of a close associate.
Supporting text
Abu Hanifa and Muhammad argue that if the principal only says, 'Pay this,' without prior authorization to guarantee, it is like saying, 'Gift this to him,' or 'Donate upon me,' unless the relationship necessitates recourse by Istihsan. Our position is that authorizing the guarantee implies authorization for the specific debt guaranteed, and subsequent authorization to pay pertains to that debt, similar to the case of a close associate or explicit instruction.