Section Seven
Security
Ad-damān
In the Shari’ah, damān is: an agreement to transfer the debt from being owed by the debtor to being owed by the person offering security (damān), thus relieving the debtor from his obligation towards it. The main thing that distinguishes a kafālah (guarantee) from damān (security) is that the kafālah is a damān that is subject to the debtor’s inability to pay, and the asset is not transferred to become owed by the guarantor, nor is the debtor relieved of his obligation, while in damān the debt does get transferred, , to become owed by the person putting up the security.
1184. The security is established through a contract that includes proposal from one of the parties and acceptance by the other, with any words or deeds that secure that.
1185. The conditions for the validity of the contract are the same as for other contracts, with the general conditions of sanity, free will, the Islamic legal age and reasonable conduct. However, not being indicted for bankruptcy is not conditional on the guarantor of the security, so a security given by a bankrupt is valid but the creditor (one for whom security is given) must not be one of his creditors (in the indictment). It is also not a condition for the debtor unless the transfer of the debt owed by him to become owed by the guarantor violates the right of the creditors to the assets of the debtor, such as if his debt was due immediately but he accepts to give security for it as a postponed debt.
1186. For the security to be valid, it must be actual, not dependant on something else, such as if the guarantor says: ‘I give security for my father’s debt if my father gives me permission’ or ‘I give security for my father’s debt if he fails to pay what is due from him’; in such cases the debt will not be transferred to become owed by the person putting up the security. However, if he makes it pending the failure to pay it off – as in the second example above – it becomes a guarantee (kafālah), as previously mentioned. In addition, the debt must be specified if the debtor has more than one debt.
1187. The acceptance of the debtor is not conditional, nor do any of the previously mentioned conditions apply to him. Also, his knowledge of the ability to pay of the person putting up the security is not conditional, not to mention if he later becomes unable to pay.
1188. Security is a binding contract, so none of the parties can back down from it; it cannot be cancelled even by one party relieving the other (iqālah) of it. Also, none of the choices can be implemented in it, unless the security comes with the acceptance of the debtor, in which case condition choice, choice relating to failure in the conditions, and choice relating to a failure of description are applicable if the condition and description were dependent upon the permission of the debtor; in this case it is allowed for the person who has the choice to invalidate the contract, taking the creditor – after the invalidation – back to the debtor, who now owes the debt again.
1189. If the security is established with all its conditions, the right is transferred from being owed by the debtor to being owed by the person putting up the security and the debtor is relieved of the debt obligation as a result of the contract only, even if the security does not pay the creditor after that. As a result of the establishment of the contract, all rulings regarding paying off debts and loans that were previously explained become applicable to the person putting up the security, especially forcing him if he refuses, giving him time if his financial state is not conducive, allowing moqāssah to be carried out and bankruptcy rulings.
1190. Although the acceptance of the debtor and his permission are not conditional for the validity of the security, if someone gives security for another debt with his permission, he is allowed to back down from this security even before paying it off, and he can even force him if he refuses. However, if he gave security for his debt without his permission, in this case the debtor will be relieved from the debt obligation and the person putting up the security cannot claim compensation from him.
1191. If the person putting up the security had the right to turn to the debtor, in this case what is due from the debtor for the person putting up the security is only what the latter paid; so if the person putting up the security paid the whole debt, the whole debt becomes due, but if the creditor relieved him of some or all of the debt, the person putting up the security has no right to turn to the debtor to claim what he was relieved from by the creditor.
1192. It is allowed for the person putting up the security to take some asset/money for giving the security for the debtor’s debt, which is an addition over the value of the debt that he will claim from the debtor if he so wishes.
1193. If the person putting up the security dies before the debt is paid off to the creditor, his heirs must pay from his estate, including if he offered the security during his final illness, with no distinction between the security being with the permission of the debtor or not.
1194. If the debtor asks someone to pay his debt and the other responds by paying it without establishing a security (agreement) between him and the creditor, in this case this person is allowed to turn to the debtor to claim what he paid on his behalf as long as he did not intend to do it voluntarily or for free, even if the debtor’s hope in his request was that the person paying would do it for free.
1195. If someone asks another to damage the other’s asset saying, for example: ‘Throw your luggage in the sea’, then if this act had no proper binding reason and he (the owner of the luggage) knew that such an act was wasteful, in this case there is no compensation due from the one who asked him to do this, even if at the time of his request or command, he said that he would pay compensation. If the damage was obligatory on the asset owner, or appropriate even if not to the extent of obligation, or was forbidden but the asset owner did not know that, in all these cases there is no compensation due from the person who ordered it, unless he said to the person he ordered that he would pay compensation. The same applies if he says to him: ‘Give one pound as alms to this poor man’ and the like.