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Chapter 12:
Kafalah
Definition of Kafalah
• Literal Definition: means
responsibility.
1
Elements of Kafalah
• Makful ‘Anhu: the principle debtor or
guaranteed.
• Sighah: expression.
• The guarantor
• must have legal capacity
• Object of guarantee
• jurists are unanimous that kafalah can be effected
upon all pecuniary claims relating to the enforceable
rights of the creditors
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Rules & Conditions
• The creditor
• creditor should be known to the guarantor,
because without this condition, the objective of
suretyship cannot be realised
• Sighah
• clear and inferring, explicitly or implicitly, the
meaning of the guarantee
• must be done without stipulating any uncommon
conditions which attainment is uncertain
• “I guarantee Mr. A’s debt if it rains.”
Types of Kafalah
• Kafalah bil Nafs (physical guaranty)
• this is a contract whereby the guarantor
undertakes to produce the guaranteed
person before the court of law.
3
Types of Kafalah
• financial guarantee are divided into
three
• Kafalah bi al-dayn (guarantee for debt)
• to guarantee the payment of debt
• Kafalah bi al-dark
• seller will return the price of the object, or
• a guarantee in favour of the seller
Kafalah in Modern
Commercial Transactions
• Murabahah
• the guarantee here maybe as a third party, to
secure the operation of the Murabahah.
• Ijarah
• to take guarantee in Ijarah to secure the payment
against the leasing of the equipment or other type
of rental.
• Salam & Istisna
• institution to lay claim on either the supplier or his
guarantor for the recovery of the contract sum or
recover the same from the security obtained
• Shirkah & Mudarabah
• on situations of negligence and loss resulting from
unauthorised transactions
• capital only, not the profit that may be derived
4
The End
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