The Contract of Surety ship and Consequences of Applying it: Comparative Study of Almagalaa and Egyptian Civil Law

This study examined the consequences resulting from the application of the contract of surety ship. It's a comparative study of Almagalaa and the Egyptian Civil Law. The researcher began with a definition of suretyship, its characteristics and parties according to Islamic fiq and Almagalaa , on one hand, and the Egyptian Civil Law on the other hand. Chapter one was devoted to types of suretyship interms of source of liability. This suretyship is one of agreement which the judicial and legal lawbook was content with. The chapter also dwelt on the practical importance of differentiating between the three types. It was found that suretyship falls into civil and commercial, in terms of nature, and there is a practical significance in differentiating between the two types given the difference between civil and commercial works in general. In this chapter, suretyship was distinguished from similar legal systems. It was found that the position of consequential bailsman is what distinguishes it from other legal provisions. In chapter two, the researcher examined the pillars of the contract given the fact that the suretyship is a contract itself. 1.Satisfaction. In this pillar, there are two opinions. One opinion conditions the bailsman's agreement only for the suretyship to take effect. The other opinion conditions the consent of the bailsman and the creditor's acceptance. The researcher gave greater weight to the opinion that conditions the consent of the bailsman only for the suretyship to hold if it's a donation. Accordingly, the bailsman shall have the qualification of donor. However, if the suretyshp is in return for something, it's conditioned on the competence of discretion, pertaining to the bailsman and the creditor but it's not conditioned on a certain competence, pertaining to the creditor, for the suretyship to take effect. The chapter also investigated the necessity for the bailsman's will to be free from shortcomings/ drawbacks of satisfaction: coercion, error, deception and exploitation. The researcher examined the proof of suretyship contract, its interpretation according to Almagalaa and the Egyptian Civil Law. The section was entitled "Satisfaction". 2.Venue. The researcher studied the presence of the original liability or the possibility of its presence. The liability has to be true and legitimate. It has to be specified in order for the venue of suretyship contract liability valid because the bailsman's liability is void, existence and otherwise. 3.Reason. The reason for the suretyship contract, between the bailsman and the creditor, might be one of compensation or donation. There is no relevance to the reason for the relationship of the bailsman with the creditor unless its illegitimate. In this case, the bailsman may hold on, in front of the creditor, the revocation of the suretyship of contract given the void of the reason for liability between the bailsman and the creditor. Chapter three was devoted to the study of the consequences resulting from the application of the suretyship contract. In this chapter, the researcher tackled the creditor's right. That is, the right to ask the bailsman and execution on the bailsman's assets unless agreed upon otherwise, or if the bailsman's assets unless agreed upon otherwise, or if the bailsman fails to pay upon the creditor's request first in accordance with what the law stipulates for him. In contrast, the bailsman's rights are the rebuttals according to the original liability in terms of void and expiry and exceptions stipulated as a provision. That is, the payment upon the request of the borrower by the bailsman. This right is stipulated in the Egyptian Civil Law. In Almagalaa, the bailsman may not do so unless agreed upon in the contract or in a subsequent contract that stipulates that the bailsman may not ask the borrower. The payment ruling of the request applies to the rebuttal ruling on execution. Concerning the payment by division, it was found that there was no difference between Almagalaa and the Egyptian Civil Law. The other exceptions, loss of deposits, due to creditor's error, exception due to the creditor's taking of execution procedures against the borrower after the bailsman's warning of him and the exception of the creditor's failure to apply in the borrower's bankruptcy. This was stipulated in the Egyptian Civil Law only. The researcher, however, okayed that on the basic of general legal rules in Almagalaa which give the bailsman the right to hold on to such exceptions. The study concluded with the consequences of the bailsman's execution of his commitment to the suretyship contract in terms of the extent of his right of recourse to other personal bailsmen and recourse of real bailsman or owner of estate upon the bailsman's faithfulness. The study ended with the results of the study, conclusions and recommendations.