Masalatan fi al-Daman wa al-Iltizam - dimn Athar al-Muallimi
- Author died
- 1386 AH
- Editions
- Dar Alam al-Fawa'id lil-Nashr wa-al-Tawzi'
Mas’alatān fī al-Ḍamān wa-l-Iltizām ("Two Issues on Guarantee and Obligation") is a short legal treatise by the Yemeni scholar ‘Abd al-Rahmān al-Mu‘allimī al-Yamānī (d. 1386 AH / 1966 CE) examining two judicial rulings concerning suretyship, financial guarantees, and creditor claims in light of Shafi'i jurisprudence.
Context and Manuscript
The text was preserved as part of a manuscript collection under number 4707, spanning four pages with additions and supplements written in its margins. It is published as the thirty-third treatise in the eighteenth volume of Āthār ‘Abd al-Rahmān ibn Yahyā al-Mu‘allimī al-Yamānī. In the work, al-Mu‘allimī examines two judicial cases in which he identified erroneous court rulings, reviewing their legal premises and evaluating them against classical works of the Shafi'i school. Al-Mu‘allimī drafted his determination of the first case in Rabi‘ al-Thani 1337 AH (c. January 1919 CE).
Contents and Legal Arguments
The First Case
The first case concerns a dispute over whether an undertaking of liability (iltizām) was limited to physical surety (kafālat badan) or entailed financial guarantee (ḍamān māl). The presiding judge had treated the expression of obligation as bodily surety alone and regarded delivery of the principal to imprisonment as discharging the guarantor. Al-Mu‘allimī argued that any wording signifying commitment suffices for financial guarantee in Shafi'i law, and that even if the initial contract were bodily surety, a subsequent admission or renewal of commitment to pay constitutes an independent financial guarantee. Citing Zakariyya al-Ansari's Manhaj al-Tullāb, he affirmed that a person may simultaneously be bound by physical suretyship and a distinct financial obligation, concluding that the guarantor remained liable.
The Second Case
The second case arose from a claim brought by ‘Abd al-Rahmān Bāsūdān against Husayn ‘Īsā regarding a guarantee for debts owed by Sayyid ‘Alī al-Maddāḥ. A prior ruling by Judge ‘Abd Allāh al-‘Amūdī had forced creditors to choose between keeping the debtor imprisoned or retaining the guarantor, subsequently discharging the guarantor once the creditors opted for the debtor's detention. Al-Mu‘allimī refuted this premise, stating that in Shafi'i law—as codified in Mukhtaṣar Abī Shujā‘ and advanced texts—creditors retain the right to pursue both the debtor and the guarantor jointly, individually, or dividedly. He further addressed procedural issues concerning the judge's claimed release (ibrā’), the requirement for judges to substantiate their grounds when questioned, and the rules governing a former judge's testimony regarding proceedings previously held before him, drawing upon Rawḍat al-Ṭālibīn, Sharḥ al-Rawḍ, and Zakariyya al-Ansari's ‘Imād al-Riḍā.
Answer updated