2376. A kif¡lah will only be in order if the guarantor conveys by means of any words—even if they are not in Arabic—or actions that he is offering to guarantee (the creditor) that whenever ‘you wish to summon your debtor, I will present him to you,’ and the creditor or his guardian accepts.
2377. The guarantor must be a sane and b¡ligh person. He must not be feeble-minded, or bankrupt in the event that it necessitates that he stand surety for a property, unless it is carried out with the permission of the guardian of the feeble-minded person or the creditors of the bankrupt individual. The guarantor should also not be wrongfully compelled to the act of kif¡lah, and should be capable of summoning the debtor.
2378. One of the following five occurrences can void the kif¡lah:
1. The guarantor submits the debtor to the creditor, or the debtor submits himself, or another individual submits him and the creditor accepts it.
2. The debt owed to the creditor is paid.
3. The creditor forgives the debt, or transfers it to another party through a sale, a settlement compromise, a transfer of liabilities or any similar agreement.
4. The debtor dies.
5. The creditor frees the guarantor from the kif¡lah.
2379. If a person forcefully or deceitfully frees a debtor from the hands of a creditor, then given that the creditor is no longer able to get hold of the debtor, the person who freed the debtor will have to submit him to the creditor. If he fails to do so, he will have to pay his debts.
2380. If a person gives his property to another person, saying, “Let it be deposited with you,” and the latter accepts, or without uttering a word, conveys to him that he wishes to place it with him for safe-keeping, and the latter accepts it with the intention of safe-keeping, then they must act in accordance to the precepts of deposits, which will be elaborated in subsequent articles.
2381. The depositor and the safe-keeper must both be sane. Therefore, if a person places a deposit in the trust of an insane person, or if such a person places a deposit in someone’s trust, it will not be valid.
The depositor must also be b¡ligh. It is permissible for a distinguishing child to place another person’s property in the trust of a third party with the owner’s permission. As for placing a deposit in the trust of a distinguishing child, it will not be problematic as long as the child is capable of safeguarding it, and safeguards it, and it does not necessitate disposing of his property.
The condition that the depositor not be feeble-minded or bankrupt is also consequential, unless it be with the permission or consent of the feeble-minded individual’s guardian, or the creditors of the bankrupt individual. However, there is no objection in placing a deposit in the trust of a feeble-minded person or a bankrupt individual, as long as it does not necessitate their disposal of their own property. In the event that it does, it will not be problematic as long as it is carried out with the permission or consent of the guardian or the creditors.
2382. If a person accepts a deposit from a child without the permission of its owner, he must return it to its owner. If the deposited item belongs to the child himself, and his guardian has not permitted the item to be deposited, he will have to return it to the guardian. In the event that he is negligent in delivering the property to them and it perishes, he must provide its replacement. The same will apply if the depositor is an insane person.
2383. A person who is not capable of safekeeping a deposit should not accept it, if the depositor is not aware of his incapability.
2384. If a person conveys to the property owner that he is not willing to safe-keep the property, but the owner nonetheless places it with him and leaves, upon which the property perishes, the individual who did not accept to keep the deposit will not be held responsible for it. The recommended precaution however is that he should safeguard it if possible.
2385. The depositor may retrieve the deposit whenever he wishes to do so. Similarly, the safe-keep may also return it to its owner whenever he wishes to do so.
2386. If a person absolves himself from safekeeping the deposit, and cancels the deposit agreement, he must return the property to the owner, or the deputy of the owner, or his guardian as soon as he can, or he should inform them that he is no longer willing to safeguard it. If he fails to return the property to them, and also fails to inform them, without a justified excuse, and the property perishes, he will have to provide its replacement.
2387. A person who accepts a deposit should prepare a suitable place for safeguarding it, if he does not have such a place. He should also safeguard it in a manner that it would not be said that he has been negligent in safeguarding it. Thus, if he places it in an unsuitable area, and it perishes, he will have to provide its replacement.
2388. If the person accepting the deposit goes beyond the normal bounds, such as riding a horse that has been placed in his trust, or is negligent in safeguarding it, such as placing it in an area where he is not confident that a third party may become aware of it and steal it, then he will be held accountable for it. In the event that it perishes, he will have to provide its replacement, and given that the item is fungible he will have to provide its like, and if not, then its value. In other than the two cases above, he will not be held responsible for it.
2389. If the owner specifies a particular area for the safekeeping of the property, and informs the safe-keeper that he should keep the property in that area, and (informs him that) even if he entertains the possibility that it might get destroyed, he is not allowed to transport it to a different location, then it will not be permissible for him to move it to a different location. In the event that he does, he will be held responsible for it.
2390. If the owner of the property specifies a location for its safe-keeping, and the one who has accepted the deposit knows that the particular location is not of significance to the owner, rather it was simply one of the locations for its safe-keeping, he may transport the property to a different location, where it would be safer than the specified location, or equal in safety to it. In the event that the property perishes in the (new) location, he will not be held responsible for it.
2391. If the owner of the property becomes insane, the person who accepted the deposit must immediately return it to his guardian, or inform his guardian of it. If he fails to return the property to his guardian, and also fails to inform him of it, without a justified excuse, and the property perishes, he will have to provide its replacement.
2392. If the owner of the property passes away, the person who accepted the deposit must immediately return it to his heirs, or inform them of it. In the event that he fails to return the property to his heirs, and also fails to inform them of it, without an excuse that is authorized by the shari’a, and the property perishes, he will have to provide its replacement.
However if he chooses not to handover the property, or desists from informing the heirs, in order to determine whether the person claiming to be the heir is speaking the truth or not, or whether the deceased has other heirs or not, and the property perishes, he will not be accountable for it.
2393. If the owner of the property passes away, and leaves behind a number of heirs, the safe-keeper should hand over the property to all of them. He may also hand over the property to an individual who has been assigned by the heirs to collect their properties. Therefore, if he hands over the property to one heir without the consent of the rest, he will be responsible for their shares. If the deceased had appointed an executor, his consent is also consequential.
2395. Whenever the safe-keeper realizes that he is nearing his own death, then if he is confident that the deposit will be delivered to its owner, such as the case wherein his heir is a trustworthy person, and is aware of the deposit, and is also confident that the owner would consent to the deposit remaining with the heirs, then it will not be mandatory for him to return the deposit to its owner, the guardian of the owner, or his deputy, or mention it in his will. The more precautionary measure is that he should return the deposit to the owner, his guardian or deputy, and if this is not possible, he should hand it over to the ¦¡kim al-shar’yy.
In other than the aforementioned case, he should return the right to its owner, his deputy or his guardian by whatever means possible. However, if it is not possible, he should state it in his will and get someone to witness it. He should inform the witness and his executor of the name of the owner, the nature of the commodity, its specifications and the place where it is located.
2396. If the safe-keeper realizes that he is nearing his own death, but fails to act upon the precepts elaborated in the previous article, then if the deposit perishes, he will have to provide its replacement, even if he has not been negligent in safeguarding it and he recovers from his sickness. The same will apply if he later regrets it, and ensures that it is stated in his will, even if the property perishes after he states it in his will.
2397. A gratuitous loan is realized when a person gives his property to another to use it, without demanding anything in return.
2398. Uttering a formal expression is not necessary for (the validity of) gratuitous loans; rather if a person gives a piece of clothing to another with the intention of giving him a gratuitous loan, and the latter accepts it with the same intention, it will be valid.
2399. Loaning a usurped item, or an item which belongs to the loaner, but its usufruct is the right or property of another, such as a property that has been rented out, is only valid if the owner of the usurped item, or the one who owns or has rights to the usufruct of the property, consents to the loan.
2400. If the usufruct of a property belongs to a person, such as a case where he has rented it, he may loan it to someone who is trustworthy, or loan it with the permission of the owner. However, if it is stipulated within the rental contract that the renter himself make use of it, he may not loan it to someone else.
2401. If a child or an insane person loans out his own property, it will not be valid. Similarly, it will not be valid if a feeble-minded person or bankrupt individual loans out his own property, unless it be with the consent or permission of the guardian of the feeble-minded individual, or the creditors of the bankrupt person. If the guardian sees it expedient to loan out the property of a person whom he has guardianship over, it will not be problematic for him to do so.
2402. If a person is not negligent in safeguarding the loaned property, nor is he immoderate in using it, but the property incidentally perishes, he will not be held responsible for it. However, if it was stipulated that in the event that the property perishes, the person acquiring the loan would be responsible for it, or if the loaned item was gold or silver, the person loaning it will have to replace it.
2403. If a person loans gold or silver, and stipulates that in the event that it perishes, he will not be responsible for it, then if it perishes, he will not be responsible for it.
2404. If the lender passes away, the person who acquired the loan will have to act according to the precepts elaborated in article 2392.
2405. If the lender becomes such that he is not permitted by the shari’a to dispose of his property, such as a person who has turned insane, the duty of the person who acquired the loan will be the same as what was elaborated in article 2391.
