An Examination of the Legal Effects of the Contract of Kafālah bil-Māl in Sunni Jurisprudence.

Abstract

The contract of Kafālah bil-Māl (financial suretyship) is one of the nominate contracts (ʿuqūd musammā) that has been widely recognized and practiced in Islamic societies since early times. Among Sunni jurists, this contract has been the subject of extensive discussion, and most scholars have elaborated upon its various aspects and legal implications. According to the Hanafi school of jurisprudence, the legal effect of Kafālah bil-Māl is the addition of one liability (dhimmah) to another in a sequential (longitudinal) manner. Leading Sunni jurists generally regard this addition of liabilities as the default implication of the Kafālah contract but recognize the validity of any explicit agreement to the contrary, in which the parties stipulate that such addition shall not occur.

The main objective of this study is to examine the jurisprudential nature of the Kafālah bil-Māl contract with respect to its legal effect, as scholarly debates and differing opinions primarily concern this very aspect. A precise understanding of the legal consequences of each contract assists the contracting parties in making informed decisions regarding its conclusion, while safeguarding their respective interests. The findings of this research indicate that Kafālah bil-Māl, within Sunni jurisprudence, serves as an instrument for securing debts and functions as a form of personal surety. The divergence among jurists regarding whether its effect is sequential or parallel in nature is based on customary (ʿurf-based) considerations rather than on religious or textual grounds. Consequently, the type and scope of its legal effect depend on the parties’ intentions and stipulations rather than on the inherent nature of the contract itself. This study is library-based (library research) and employs an analytical method to explore the subject through classical Sunni jurisprudential texts.