In our Arab societies, particularly in Iraq, guarantees (kafala) are embodied as an act of loyalty and generosity, where a person steps forward to vouch for another, motivated by trust, kinship, or goodwill. Yet, this noble intention can turn into a calamity for the guarantor, when the guaranteed party fails them, exposing the guarantor to legal pursuit, and perhaps even compulsory execution against their assets—without ever having benefited from the obligation, entered into the project, or received the debt.

The guarantor here is not an original party to the debt, yet he bears its full burden, even if unaware of its details. For the law—according to Article (1008) of the Iraqi Civil Code—binds the guarantor to what he has committed himself to, and grants the creditor the right to pursue him directly whenever the guaranteed party defaults, regardless of ignorance or good faith, neither of which carry any legal effect to exempt him from liability. This makes guarantees, despite their social nature, a dangerous instrument if stripped of transparency or misused.

What is striking is that many guarantors are not even given the chance to truly understand what they are signing—whether due to excessive trust in the guaranteed party, social or family pressures, or under the influence of what is known as a “courtesy guarantee.” Thus, the guarantor transforms from a supporter into a victim, from a protector into a debtor, finding himself in the defendant’s seat, facing the court, pursued by enforcement, while the guaranteed party disappears, denies responsibility, or shamelessly evades it.

But what guilt lies with one who acted in good faith? And who protects the deceived from falling into such a trap? No doubt, the law does not protect the naïve—but it must not, at the same time, conspire with the deceitful.

In light of this, the need grows today to reconsider the concept of guarantees, not only from a legal standpoint, but from an ethical and social perspective as well. A society built on trust should not punish those who trust, nor reward those who betray. Hence arises the need for widespread legal awareness that warns against signing any obligation without full understanding, and urges that every detail of a guarantee be documented with transparency, in the presence of legal counsel or with proper legal consultation.

Indeed, the stage calls for legislative intervention to distinguish between guarantees signed with full knowledge, and those made under ignorance or deception, granting judges discretionary authority to assess the guarantor’s intent and the circumstances of signing. The law cannot be a blunt instrument applied mercilessly—it must be a means of realizing justice, not a set of rigid provisions.

If a guarantor signed unknowingly, or because their trust was exploited, then the demands of justice dictate that their case be viewed with compassion—not to be cast in the defendant’s box as if they were the primary wrongdoer, rather than the betrayed partner.

Today, guarantees are no longer merely a legal commitment, but a test of social values, a mirror reflecting the level of respect for trust and honesty. If this abuse of guarantees continues, societal trust will erode, and a generation will emerge that knows nothing but caution and suspicion—posing a real threat to the very fabric of coexistence.

In conclusion, it is unjust that the guarantor should stand alone in the courtroom, held accountable for a fault not his own, while the guaranteed party shirks all responsibility. A just law is one that recognizes intention, reads beyond the signature, and gives the judge space to uncover the truth—not one that places in his hand the sword of enforcement without mercy.

Dr. Abbas Shatool Hammoud Al-Shammari
Al-Mustaqbal University – College of Law
Al-Mustaqbal University, the top university in Iraq

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