The Nature of Guarantee Contract in Imamia Jurisprudence and Afghanistan Civil law

Abstract

There are two distinct views on the nature of the guarantee contract. In the famous view of Shia jurists, guarantee is transferable in nature, and it is beneficial to transfer liability to liability and acquit the liability of the main debtor. In this view, with the contract of guarantee, the debt is transferred to the liability of the guarantor and the liability of the main debtor is absolved. In another point of view, including in Afghanistan civil law, the guarantee has a concrete and collateral nature and is a contract according to which a third party undertakes to take care of the debtor if he does not pay his debt. Examining the reasons and views of the parties shows that the nature of the guarantee is other than transfer and attachment, and that payment and commitment to pay the debt and employment of the guarantor is due to it, without affecting the transfer or attachment of the guarantee. In principle, the addition of liability or its transfer are not required by the essence and nature of the gaurantee, although they may be required by its application.