The Customary Guarantee: a Face of the General Theory of Obligation

In Islamic law and Civil Code, the contract of guarantee is considered a possessory contract due to the fact that it is based on the institution of religion and as a result of its possessory effect. However, paying attention to the customary instances of the contract of guarantee, a number of jurists have come to recognize another concept of the contract called customary guarantee with different nature and rules against the idiomatic guarantee. The contract of guarantee in this meaning only makes commitment without transferring the debt to the guarantor and its possession by the guaranteed one. The customary guarantee characterized by the lack of engagement of the guarantor, the lack of need to a fixed debt, the independent commitment of the guarantor is different from the idiomatic guarantee accepted by the Islamic law and the civil code. The present article uses a descriptive-analytical method to examine the customary guarantee as an instance of the general theory of commitments against the idiomatic guarantee which is based on the possession theory. As a result, it can be said that considering the needs of the society and identifying a new concept of the contract of guarantee in the Shi'a jurisprudence, as well as relying on the generalities of the law like the Article 10 of Civil Code, the customary guarantee can be considered valid in the case law too.