Document Type : Research Article

Author

• Seyyed Nima Norouzi

Official Researcher, Research Division of Seminaries and Higher Levels of Qom Seminary and Department of Jurisprudence and Private Law, Faculty of Sciences and Education, Al-Mustafa International University, Qom, Iran.

Abstract

The contract of guarantee has long been regarded as a fundamental institution in Imami jurisprudence, traditionally defined on the basis of Naql al-Dhimma (transfer of liability). According to this view, the debt is moved from the original debtor to the guarantor. While this classical doctrine gained a firm place in juristic tradition, it has lost much of its practical relevance in light of modern social and economic realities. In contemporary contexts—such as bank guarantees, construction contracts, property insurance, and credit arrangements—the traditional model no longer provides an adequate explanation. To address this gap, contemporary scholars have advanced the idea of "customary guarantee" (Damān ‘Urfī). Unlike the classical model, it is not based on transferring debt but on the guarantor's undertaking to indemnify losses or ensure fulfillment of obligations. This type of guarantee operates as a contractual or even unilateral commitment, validated by custom and practical necessity, and thus differs fundamentally from the dhimma-based framework. In this regard, Seyed Muhammad Kazim al-Ṭabatabaʾi al-Yazdi played a pioneering role by recognizing the legitimacy of guarantees beyond strict debt transfer in works such as al-‘Urwa al-Wuthqā and his glosses on al-Makāsib. In modern Iran, Ayatollah Seyed Mustafa Mohaghegh Damad reformulated these insights into legal language within his General Theory of Conditions and Obligations, thereby introducing them into legal doctrine. By examining the historical development of the guarantee contract and analyzing the views of Seyed Yazdi, and by comparing the classical and customary forms of guarantee, this study concludes that redefining guarantee in light of custom and current needs is compatible with Imami jurisprudence. This approach can enhance the dynamism of the jurisprudence of transactions and foster its convergence with contemporary legal systems.

Keywords

• Classical Contract of Guarantee
• Customary Contract of Guarantee
• Guarantee Based on Dhimma
• Guarantee Based on ‘Uhda
• Normative Obligations

Main Subjects

• Jurisprudence & Law