Type of kafalah
in general, kafalah contract may be classified into two categories 1. Kafalah bi al-mal, it is a guarantee for property or finance; 2. Kafalah bi al-nafs, it is a guarantee for one’s self Kafalah bi al-mal may be divided into three main categories as follows: 1. Kafalah bi al-dyn, it is a guarantee for a debt owned by a party. It is meant to guarantee for the settlement of the debt by the guarantor should the guaranteed party is in default; 2. Kafalah bi al-ayn or kafalah bi al-taslim, it is a guarantee for a tangible property or for the delivery of an object of a contract. In a contract of sale, for instance, a guarantor may need to guarantee for the delivery of the object of the contract to the purchaser. If the seller fails to perform his contractual obligation as stipulated in the terms of the agreement, the guarantor is liable to furnish the delivery. 3. Kafalah bi al-darak, it is a guarantee for a property that is free from any encumbrance of claim. This guarantee is meant for guaranteeing an object of a contract is free from any claim that could hinder the transfer of ownership of the property in a particular contract. If there is any claim against the property, the guarantor is liable to bear the loss suffered by the beneficiary. Legal rule on ujrah in kafalah contract
A number of the classical scholars are of the view that charging an ujrah or fee for a guarantee is not allowed. This view is based on the argument that kafalah contract is classified among the uqud al-tabarru’at which is voluntary in nature. As such, it is not allowed to charge a fee for the guarantee. Views that allow fee in kafalah contract
Among the view that allow fee in kafalah contract are as follows: Prof. Dr. Wahbah al-Zuhaili views that charging fee for kafalah is permissible. According the original rule, it is advisable to offer guarantee free of charge since kafalah fails under the category of aqd al-tabarru. However, due to...
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