FIQH

MUAMALAH
ISLAMIC BUSINESS TRANSACTION


CHAPTER FIVE

AL-KAFALAH

MAHYUDDIN KHALID  emkay@salam.uitm.edu.my

ADVANTAGE

CONDITIONS

APPLICATION

2
 AL-KAFALAH
 Kafalah
DEFINITION  Gurantee for future obligations involving human beings such
as bailing to ensure the attendance of the accused criminals to
EVIDENCES the court for judgement
 Dhamanah
TYPES  Guarantee for future obligations involving property such as
debt obligation, the return of borrowed property, the delivery
of products, payment for purchase of products or services or
ADVANTAGE
the security if goods.
 Hamalah
CONDITIONS
 Guarantee for future obligations involving diyat (blood-
money)
APPLICATION

3
 DEFINITION
 Kafalah comes from the root word kafala (‫ ) كفل‬which means
DEFINITION junction – joining combination responsibility or suretyship.
 Legally kafalah means the joining of one obligation to another
EVIDENCES obligation with regard to a claim on.
 Literally
TYPES  Guarantee, bail, surety, responsibility, suretyship
 Technically
ADVANTAGE  The pledge given by the guarator/surety (al-kafil) to a
creditor (al-makful lah) on behalf of the principal debtor (al-
makful anh) to secure that the guaranteed (al-makful bih) i.e
CONDITIONS
the debtor, will be present at a definite place, e.g to pay his
debt, or fine, or, in the case of retaliation, to undergo
APPLICATION punishment.
 In kafalah a person joins another person in undertaking certain
obligation. Consequently, both persons become jointly liable to
meet any claim that may arise from this obligation
4
 PILLARS OF AL-KAFALAH
1. Guarantor/surety (al-kafil)
DEFINITION  A person who gives the guarantee is also called called
surety. A person who agrees to be responsible for another
EVIDENCES person’s liability especially paying for his debt
2. Creditor (al-makful lah)
TYPES  A creditor to whom the guarantee is given
3. Principal debtor (al-makful anh)
ADVANTAGE  The person in respect of whose default the guarantee is
given. He is also called the principal debtor.
4. Guaranteed (al-makful bih) i.e the debtor, things
CONDITIONS
 The claim itself whether it relates to the person or property.
APPLICATION

5
 FLOWS OF AL-KAFALAH

DEFINITION
Kafil (Gurantor)
EVIDENCES

Cr ault
ibl

de
ed
ity pons

f
ito by th
TYPES

rc
lia res

an e prin
r’s o be
bil

re t
t

rie ciple
De rees

ve
ADVANTAGE Makful Bih (Debtor/ Things)
bto
p l e ag

his ebto
nci tor

de r
d
Pri aran

bt
in
CONDITIONS
Gu

cas
e of
APPLICATION

Makful Anh Makful – Lah

6
 EVIDENCE
 Al-Quran
DEFINITION

EVIDENCES

TYPES

ADVANTAGE

CONDITIONS

APPLICATION

7
 EVIDENCE
 Hadith
DEFINITION  The prophet (s.a.w) said to the effect, “The Guarantor is the
debtor”
EVIDENCES  Salamah al-Akwa’ narrated that: The Prophet (s.a.w) was
presented with a corpse of a man to be prayed upon (before
the burial). He (s.a.w) asked: “Did he leaving anything?”
TYPES
They answered: “Nothing at all!” He (s.a.w) asked: “Is he
owing anything?” They answered: “Yes indeed, he owes 2
ADVANTAGE gold dinars: He (s.a.w) said: “Proceed with the funeral
prayer with your friend (without me)” Abu Qatadah said: “o
CONDITIONS the messenger of Allah, I will be guarantor (for the
repayment) of those 2 dinars” After that, the Prophet (s.a.w)
performed the funeral prayer for him
APPLICATION
 Ijma’
 The scholars of Islam uninamously agreed on the legitimacy
of al-kafalah in principle since it is a necessity in the society
8
 TYPES OF AL-KAFALAH
 Al-Kafalah Bi Al-nafs
DEFINITION  Guarantee of Person
 In Suretyship for a person (‫) الكفالة بالنفس‬the guarantor is
EVIDENCES assuming the responsibility to make sure the presence of the
principal in a lawsuit.
TYPES  This is also possible in cases where the principal owes the
creditor.
 The guarantor is required only to make sure the presence of
ADVANTAGE
the person.
 He is not liable to settle the debt on behalf of the principal.
CONDITIONS
 If the principal dies the guarantor is not bound to pay on his
behalf. This is because the guarantee given is for the presence
APPLICATION of the principal and not for the settlement of his debt.

9
 TYPES OF AL-KAFALAH
 Al-Kafalah Bi Al-mal
DEFINITION  Kafalah for the property ‫بالما(ل‬ ‫ ) الكفالة‬can be both for the
settlement of a debt (dain) or a guarantee that a certain
EVIDENCES specific thing (‘ain) would be returned.
 In this case a guarantor is not freed of from liability if the
creditor or the owner of the thing dies. The heirs of the
TYPES
creditor or the owner of the thing can demand that the
guarantor settle the debt or return the thing.
ADVANTAGE
 For instance, the guarantor is liable to make sure that a
certain property bought by the buyer will be returned to him.
CONDITIONS The creditor has the option of demanding repayment from
either the principal or the guarantor.
APPLICATION

10
 EFFECTS OF AL-KAFALAH
 Once a valid kafalah is concluded it establishes a right to the
DEFINITION creditor to claim the debt from the guarantor. The principal
debtor is not released from the debt.
EVIDENCES  The creditor has an option whether to demand the payment of
debt from the principal debtor or from the guarantor.
 Kafalah is a gratuitous contract. This means that the service
TYPES
rendered by the guarantor is done freely without any reward or
payment. However, it is possible that a guarantor may demand a
ADVANTAGE certain fee for his service.

CONDITIONS

APPLICATION

11
 THE ADVANTAGE OF AL-KAFALAH
 Kafalah is gratuitious contract and authenticate/ security
DEFINITION contract
 Creditor:
EVIDENCES  Could authencticate the loan repayment and ensure that he
(the creditor) can retrieve his money back by demanding the
payment from the guarantor in case of default payment by
TYPES
the debtor/ pldgor
 Entitles the creditor to call upon either the debtor or the
ADVANTAGE
guarantor to perform the obligation and demand from one
wll not affect his right to go after the other if the obligation is
CONDITIONS not fully satisfied

APPLICATION

12
 THE ADVANTAGE OF AL-KAFALAH
 Debtor
DEFINITION  Minimize and spread his risk because the guarator by his
guarantee, joined his liability to the creditor
EVIDENCES  Can convince the creditor to lend him the money since he has
somebody to back him up as the guarantor of payment.
Nobody will nomally lend him any amount of money if he
TYPES
has nobody that can support him and perform the obligation
on his behalf in case of default
ADVANTAGE

CONDITIONS

APPLICATION

13
 CONDITIONS OF AL-KAFALAH
 Guarantor
DEFINITION  Has the capacity to be a guarator
 Has the capability
EVIDENCES  Can’t withdraw or pullback after the loan agreement has
been sealed or after the money has been given to the debtor
TYPES  No limit to the number of people that can be a guarator to the
debtor
ADVANTAGE  Not forced or threatened by anybody to be the guarantor

CONDITIONS

APPLICATION

14
 CONDITIONS OF AL-KAFALAH
 Creditor
DEFINITION  Must be known by the guarantor
 Has the right to claim the debt from either the debtor or the
EVIDENCES guaranot in case of default
 Can relief the guarator from his obligation but the debtor is
TYPES still obligated to settle his debt
 Can relief the debtor from his obligation and in this case, the
ADVANTAGE
guarator is no longer obliged to settle the debt on behalf of
the debtor

CONDITIONS

APPLICATION

15
 MODERN APPLICATION
 Letter of Guarantee (LG)
DEFINITION  Principle of kafalah has been used in Guarantee facilities as a
basis in structuring the Letter of Guarantee
EVIDENCES  Guarantee facilities refers to contract or assurances made by
Islamic bank to 3rd parties.
TYPES  Customer will fulfill his/ her obligations towards the
respected third party.
 In this assurance, bank agrees to assume the liability of its
ADVANTAGE
customer in the case of default or breaching of contract as
agreed between customer and the 3rd party.
CONDITIONS
 The issuance of LG usually subject to various terms and
conditions. A common practice is that the bank would
APPLICATION require customer to cover fully or at least partially value of
the LG.

16
 END OF CHAPTER

DEFINITION

EVIDENCES

TYPES

ADVANTAGE 
CONDITIONS

APPLICATION

17