2346. The person transferring the liability and the creditor must both know the amount and type of the liability being transferred. Therefore, if someone owes an individual ten kgs of wheat and ten dollars, and asks him to claim either of the two from another individual, without specifying which one, the transfer will not be valid.
2347. If the debt has actually been specified, however the debtor and the creditor are not aware of its amount or type while transferring the liability, the transfer will be valid. For example, if the debt has been recorded in a document, and the liability is transferred before referring to the document, and thereafter they refer to the document and inform the creditor of the amount of the debt, the transfer will be valid.
2348. The creditor reserves the right to refuse the transfer of liabilities, even if the person it is being transferred to is not poor, and neither is he negligent in paying the liability.
2349. If a person who is not indebted to the one transferring his own liabilities, accepts the liability to be transferred to him, he may not claim the amount of the liability from the latter prior to paying it.
If the creditor settles his debt for a lesser amount, the person who accepted the liability cannot claim an amount greater than it from the person who transferred the liability.
2350. Once a transfer of liability has been realized, the person transferring the liability and the transferee cannot cancel the transfer. The creditor may also not cancel the transfer if the transferee is not poor at the time of the transfer, even if he becomes poor thereafter. The same will apply if he is poor at the time of the transfer and the creditor is aware of it. However, if he does not know that he is poor, but later realizes that the transferee has become rich, the creditor will still reserve the right to cancel the transfer and claim the debt from the (original) debtor.
2351. If the debtor, creditor and transferee—in the event that his acceptance is a consequential condition in the transfer of liabilities, such as a person who is not indebted to the debtor—or one of them reserves the right to cancel the transfer of liabilities, he may cancel the transfer according to the clause agreed within the contract.
2352. If the person who transferred his liability pays the creditor himself, then in the event that he has paid it at the request of the transferee who was indebted to him, he may claim the item that he paid from the transferee. However, if he paid it without a request from the transferee, or the transferee was not indebted to him, he may not demand the paid item from the transferee.
2353. Mortgaging is defined as the act of placing a part of one’s property as a safety deposit, by a person who is under a financial obligation to another individual, so that in the event that he fails to pay off his obligation, the latter may claim his rights from that property. For example, a debtor may place a part of his property as a safety deposit, so that in the event that he fails to pay off the debt, the creditor may claim the debt from that deposit.
2354. Uttering a formal expression is not necessary in a mortgage. In fact, the mere act of placing a property in the possession of the creditor with the intention of a safety deposit, and the acceptance by the creditor with the same intention, will be sufficient for the mortgage to be in order.
2355. The mortgager and the mortgagee must both be sane and b¡ligh, and should not have been wrongfully compelled to it. In addition, the mortgager must not be bankrupt, nor feeble-minded, unless consent or permission is acquired from the creditors of the bankrupt individual, or the guardian of the feeble-minded person. The definition for persons who are feeble-minded and persons who are bankrupt was elaborated in article 2306.
2356. A person may only mortgage the property that he is permitted to dispose of by the shari’a. However, if he mortgages another person’s property upon acquiring his permission or consent, it will be in order.
2357. One should be able to recover his debt from the mortgaged item even if it is not owned (by the mortgager), such as a land that is the subject of one’s right of fencing. Therefore, if a person mortgages wine or any similar item, the mortgage will be void.
2358. The profits derived from the mortgaged item belong to its owner. The term owner—as it pertains to these articles—is a term more general than one who possesses rights over it.
2359. The mortgagee may not dispose of the mortgage without its owner’s permission. Similarly, the owner of the mortgage may not dispose of it in a manner that would violate the right of the mortgagee, without his permission.
2360. A group of jurisprudents (may the Lord raise their status) have stated that if the creditor sells the mortgaged item with the permission of the debtor, then the payment acquired in its sale will also—like the original property—be considered as the mortgage. The same will apply (according to the jurisprudents) if the creditor sells it without the permission of the debtor, but the latter consents to it later on. However, such a view is problematic, unless it is stipulated with a contract, even if it be the within the same sale, that the debtor will place the received payment as mortgage. In this case, it becomes obligatory on him to fulfill the condition. The same will apply if it is stipulated that the payment would be mortgaged, in which case the payment is automatically mortgaged by virtue of the condition.
2361. When the moment of repaying the debt arrives, and the creditor demands it, but the debtor fails to pay it, then in the event that the creditor is deputized to sell and claim his debt, he may sell the mortgaged item and recover his debt. In the event that he is not deputized as such, he should seek the permission of the debtor. In the event that he is unable to contact him, he should seek permission from the hakim. In the event that this is not possible either, he should seek permission from just individuals amongst the believers. In any case, should he acquire more than his debt (from the sale), he must return the extra to the debtor.
2362. If the debtor possesses nothing but a house that is suitable for his status, and he resides therein, and some household furniture and other basic necessities, the creditor cannot demand his debt from the debtor. However, the creditor may sell a mortgaged item, even if it be a house and household furniture, and recover his debt through their sale.
2363. If a person wishes to become a surety to pay off the debts of another, then his act of becoming a surety will only be valid if he conveys by means of any words—even if they are not in Arabic—or actions that he has undertaken the surety of paying the debt, and the creditor accepts it. The consent of the debtor is not necessary in this case.
2364. The surety and the creditor must both be sane and b¡ligh, and should not have been wrongfully compelled to it. They should also not be bankrupt or feeble-minded, unless it is carried out with the permission or consent of the guardian of the feeble-minded individual, or the creditors of the bankrupt person.
These conditions are not consequential in the debtor. Therefore if a person becomes a surety to pay off the debt of a child, an insane or feeble-minded person, or a bankrupt individual, his act will be in order.
2365. If a person stipulates a condition for becoming a surety, such as stating that he will become a surety if the debtor fails to pay off the debt, to claim the validity of the surety will be problematic.
2366. The person whom an individual wishes to stand surety for must himself be in debt. Hence, if a person wishes to acquire a loan from someone, one cannot stand surety for him until he acquires the loan.
2367. A person can only stand surety if the creditor, debtor and type of the commodity are in reality specified. Therefore, if two individuals are owed by a person, and a fourth individual states that he will stand surety for the debt owed to one of them, his act of becoming a surety will not be in order, for he has failed to specify whose debt he will be paying. Similarly, if a creditor is owed by two persons, and a fourth individual states that he will stand surety for the debt owed by one of them, his act of becoming a surety will be void, for he too has failed to specify whose debt he will be paying. In a similar manner, if a person is owed ten kgs of wheat and ten dollars from a person, and a fourth individual states that he will stand surety for one of the two items being owed, without specifying whether he is standing surety for the wheat or the money, it will not be in order.
2368. If the creditor gifts the debt to the surety, the surety cannot claim anything from the debtor. Similarly, if the creditor gifts him a part of the loan, he cannot claim that amount from the debtor.
2369. If a person stands surety to pay off an individual’s loan, he cannot revert from being a surety.
2370. The surety and the debtor—based on obligatory precaution—cannot stipulate a condition which permits them to cancel the role of the surety whenever they wish.
2371. If the surety able to pay the debt owed to a creditor at the time of becoming a surety, the creditor cannot remove him from being a surety should he become poor later on, and seek to recover the debt from the original debtor. The same will apply if he is unable to pay the debt at the time of becoming a surety, but the creditor is aware of this and consents to his becoming a surety nonetheless.
2372. If the surety is unable to pay the debt owed to the creditor at the time of becoming a surety, but the creditor is unaware at the time and realizes it later on, he may remove him from being a surety. However, if the surety acquires the ability to pay the debt before the creditor realizes (that he was unable to pay the debt), and the creditor nonetheless wishes to remove him from being a surety, such a move will be problematic.
2373. If a person stands surety to pay off the debt of an individual without the individual’s consent, he cannot claim anything from him.
2374. If a person stands surety to pay off the debt of an individual with his consent, he may claim the surety amount from the individual after he has paid it. However, if he pays the creditor with a commodity other than the commodity that was owed, the surety cannot claim from the (original) debtor the commodity that he paid. For example, if the debtor owes ten kgs of wheat, and instead the surety pays ten kgs of rice, the surety cannot claim rice from the debtor. However, if the debtor himself consents to paying rice, there is no problem in it.
2375. Kif¡lah is defined as the act of offering a guarantee by an individual to a creditor, that whenever the creditor seeks the debtor, the individual will submit the debtor to him. An individual who offers such a guarantee is known as a kafil (a guarantor).
