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Cebeci, Ismail. "Explaining the Modern Transformation of Islamic Legal Contracts: Theoretical and Practical Implications." Arab Law Quarterly 35, no. 1-2 (June 24, 2020): 134–54. http://dx.doi.org/10.1163/15730255-bja10039.
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Abstract This article both examines changing contexts and factors that cause transformation as well as shows their effects on Islamic finance contracts. Here the author addresses his general theories in terms of modern iǧtihād (independent reasoning) on modern Islamic finance contracts. The main question is: ‘How have changing contexts and factors affected the emergence and transformation of Islamic financial contracts?’ The study addresses contexts, factors, and conditions that severely transform contracts. More specifically, the author argues that modern Islamic finance contracts have been transformed by the effects of changing factors and contexts. The main objective is to uncover modern contractual developments in Islamic finance and show how this transformation has made its mark on modern Islamic finance contracts. The study consists of a presentation of historical background, an explanation of socio-economic and ideological-ethical contexts and factors creating change, and a discussion regarding their effects on modern Islamic contracts.
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Moqbel, Tareq, and Habib Ahmed. "Flexibility and Sharīʿah Compliance of Islamic Financial Contracts: An Evaluative Framework." Arab Law Quarterly 35, no. 1-2 (July 22, 2020): 92–115. http://dx.doi.org/10.1163/15730255-bja10052.
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Abstract Although the key distinguishing feature of Islamic finance is compliance with Sharīʿah, there is criticism from various quarters on the Sharīʿah compliance of its products. However, there is no objective way to assess the Sharīʿah compliance of Islamic financial contracts. This article develops a structured framework for analysing Sharīʿah compliance of Islamic financial contracts by deconstructing them and developing principles of evaluation based on concepts from Islamic legal theory. Other than providing a framework to assess Sharīʿah compliance of Islamic financial contracts, this article also alludes to an important issue regarding the contracts’ flexibility. Using concepts from Islamic legal theory, the article classifies different contractual stipulations according to their legal weight, and identifies how legal perspectives on the requirements of compliance can determine the flexibility of contracts. An evaluative framework is used to assess the Sharīʿah compliance of an actual muḍārabah (silent partnership) contract and finds it to be defective.
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Karatash, Mustafa, and Rakhmanov Abdumukhtor Rejjabbaevich. "Islamic System Of Human Rights And Types Of Contracts In Islamic Law." American Journal of Political Science Law and Criminology 03, no. 06 (June 12, 2021): 147–52. http://dx.doi.org/10.37547/tajpslc/volume03issue06-22.
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The article deals with the application of the norms of Islamic law on obligations and contracts, particularly, principles of close to the moral values of our people, and calls on the parties to contracts to be honest and conscientious in their obligations, timely and proper execution, tolerance and generosity, at the same time some types of contacts in Islamic law such as muzaraba, musharaka and murabah are discussed in detail.
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Hassan, Hussein. "The Promissory Theory of Contracts in Islamic Law." Yearbook of Islamic and Middle Eastern Law Online 8, no. 1 (January 1, 2001): 45–72. http://dx.doi.org/10.1163/221129802x00058.
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Karim, Ridoan, and Imtiaz Mohammad Sifat. "Treatment of silence as misrepresentation in contracts." International Journal of Law and Management 60, no. 1 (February 12, 2018): 69–78. http://dx.doi.org/10.1108/ijlma-08-2016-0073.
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Purpose This paper aims to provide a comparative discussion on silence as a misrepresentation in contractual obligations between common law and Islamic law. The objective of this paper is to – from a legal pluralism point of view – highlight the contrasts between the two traditions and provide recommendations for best practices to achieve fairness and equity among the contracting parties. While common law does not treat silence as conscious misrepresentation, in Islamic law, silence does not constitute affirmative will. This has repercussions for the contracting parties because if future disputes arise, the aggrieved party in Islamic law reserves the option to rescind or nullify the contract – an opportunity not afforded by common law. We have discussed and analyzed the implementations of the different contractual terms, such as fraud, misrepresentation, trickery and deception in relation with Islamic law principles and common law practices. This research is an effort to draw the attention for further development in both Islamic law and common law practices on contractual obligation. The notion of misrepresentation – subset of a broader gamut of fraud – is arguably nebulous in Islamic literature as well. We delve into these nuances and provide examples both from common law and Islamic law precedents and provide recommendations for reform in both traditions. Design/methodology/approach This paper operates under qualitative methodological framework and uses secondary sources for analysis. Sources include journal databases, review of cases, classical/medieval Islamic scripts, etc. Findings This paper provides a general comparative study between common law’s principle and practice and Islamic law’s principle to forge a better understanding of fine-tuning existing practice and contribute to the debate on determining the best practices to unify international trade and custom exercise. Common law principle, obviously, holds a historical and traditional reputation as those principles are derived from long years of practice and judicial interpretation. Such historical legal system should accommodate fresh ideas in their repertoire and welcome novel ideas which would positively influence its own practice. This paper affords the freedom to the reader to interpret which general principle is acceptable in terms of contractual obligation. Originality/value Previous works exist on the issue of misrepresentation. However, those are mostly explanations of fraud and deceit in Islamic law or common law. The treatment of silence as affirmative will is seldom touched upon. To the authors’ knowledge, this is the first attempt at contrasting the treatment of silence in common and Islamic law. They have also advocated pluralistic practices and argued for legal reform whereby both traditions can benefit from each other.
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Buang, Ahmad Hidayat. "Islamic Contracts in a Secular Court Setting? Lessons From Malaysia." Arab Law Quarterly 21, no. 4 (2007): 317–40. http://dx.doi.org/10.1163/026805507x247590.
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AbstractThe judgement in the Kuala Lumpur High Court in the case of Affin Bank Berhad v. Zulkifli Abdullah ([2006] 1 CLJ 438) illustrates the difficulty in cases where Islamic principles such as Bay' Bithaman Ajil or BBA are litigated in a court of law where Islamic Shariah is little understood. From the traditional Islamic law perspective the legal basis arrived at in the judgement is questionable. In the light of this complexity, this article attempts to analyse the effect of the judgement to the principles of Islamic contracts used in banking products and services in Malaysia with reference to the sources used in the creation of the contracts and forum to settle disputes between Islamic Banks and their customers. In conclusion, this article would argue for the appropriate application of the Shariah in the above matters through the promulgation of a specific law in relation to Islamic contracts in banking and finance or alternatively a special procedure to be introduced enabling all matters relating to the question of Shariah be referred to the Shariah Courts for decision.
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Subaty, Muhammad, and Mostafa Elsan. "Contract Formation Using Automated Message System: Survey of Islamic Contract Law." Arab Law Quarterly 23, no. 2 (2009): 167–80. http://dx.doi.org/10.1163/157302509x415684.
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AbstractThe issues discussed are the legal aspects of creating contracts using Automated Message Systems. For example, should a transaction or series of contracts be nullified after the right to withdraw has been exercised? The right to withdraw was created to protect a “natural person” unable to correct a human input error in an automated system. Interpretation of contracts under Islamic law concerning this and related topics is presented.
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Kamali, Mohammad Hashim. "Islamic Commercial Law." American Journal of Islam and Society 13, no. 2 (July 1, 1996): 197–212. http://dx.doi.org/10.35632/ajis.v13i2.2330.
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Introductory RemarksThe Islamic law of transactions (mu'amalat) has often been singled outas the most important area of contemporary research in Islamic theses, somuch so that, according to some observers, its priority is even higher thanthat of research in applied sciences and medicine. This status is due to thecritical importance of commercial transactions in the wealth generation andproductivity prospects of contemporary Muslim countries. New researchon issues of conventional fiqh al mu'amalat is essential for the viability andsuccess of economic development programs in Muslim countries. In recentdecades, research interest in fiqh al mu'amalat has been shifting increasinglyto specific themes and development of new operative formulas tostimulate profitable business in the marketplace. Evidently, futures tradingis one such theme where original ijtihad is required to enhance theprospects of economic success, especially in farming and agro-based industriesin developing Muslim countries.The futures market is where contracts for future sale and purchase canbe concluded for standardized quantities and qualities of commodities, currencies,bonds, and stocks. Ever since the large-scale inception of futuresmarkets in the early 1970s, new products and trading formulas in varioustrade sectors involving commodities, options, financial futures, and stockindex futures, among others, have increased so much that futures contractscurrently are available in over eighty commodities, ranging from foodgrains, oil and oil seeds, sugar, coffee, livestock, eggs, orange juice, cotton,rubber, precious metals, and currencies. In terms of volume, futures tradinghas far exceeded trading levels in conventional stocks and, currently, is thesingle most voluminous mode of commerce on the global scale ...
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Mohd Noor, Nurul Syazwani, Muhammad Hakimi Mohd. Shafiai, and Abdul Ghafar Ismail. "The derivation of Shariah risk in Islamic finance: a theoretical approach." Journal of Islamic Accounting and Business Research 10, no. 5 (October 14, 2019): 663–78. http://dx.doi.org/10.1108/jiabr-08-2017-0112.
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Purpose This paper aims to propose a derivation of Shariah risk from both the Islamic finance theory and theory of contracts in Islamic law. Specifically, it deliberates the derivation of Shariah risk following the contracts validity and apprises the readers of the Shariah risk issues currently under debate. Design/methodology/approach This study reviews the relevant literature and presents an analysis of contract rulings through evidence derived from the Qur’an, Hadith and other secondary sources of Islamic law. Various theories of Islamic finance and Islamic law of contracts are identified, to examine the general principles and essential elements and conditions of a valid contract. Findings This analysis asserts that any circumstances that may render invalidity of the contract will trigger Shariah risk. More importantly, this paper highlights the implications of invalid contracts, based on the opinion of Hanafi jurists, who concluded that Shariah risk may be derived from any void or voidable contracts due to the failure of the contractual parties to comply with Shariah contractual obligations. Research limitations/implications This paper emphasises the derivation of Shariah risk over theoretical approaches. It does not include an explanation in the form of any empirical model. Originality/value This is the first study that contributes to the field of derivation of Shariah risk, based on the theory from the Islamic law of contracts.
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Hamour, Mohamed, Mohammad Hassan Shakil, Ishaq Mustapha Akinlaso, and Mashiyat Tasnia. "Contemporary issues of form and substance: an Islamic law perspective." ISRA International Journal of Islamic Finance 11, no. 1 (June 17, 2019): 124–36. http://dx.doi.org/10.1108/ijif-01-2018-0006.
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Purpose This paper aims to analyse the concept of form over substance and introduces the term substance gap to the literature. The substance gap is defined as the difference between the way a concept is expressed and its intended result. Besides, the study investigates the issue from both classical and contemporary viewpoints. Design/methodology/approach The methodology adopted in this paper is descriptive research. Findings This paper has depicted the substance gap in contemporary contracts and found that form is equally important as substance in Islamic finance contracts. This paper offers a fresh outlook on form and substance to highlight the importance of the issue and its significance. The findings of the study will help researchers address the issue at its roots and help them to bridge the gap between the form and substance of Islamic finance contracts. Originality/value This paper investigates the substance gap in contemporary contracts that exists between the fiqh rules and conditions of an Islamic contract, and their development and construction. Further, the gap could also be attributed to the pressure to cope with a complicated modern finance environment.
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Razali, Siti Salwani. "The Dominance Entry of the Principles of Ghārār in Electronic Contracts." Arab Law Quarterly 23, no. 2 (2009): 207–16. http://dx.doi.org/10.1163/157302509x415648.
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AbstractContracts feature in all areas of our daily lives. For example, without much thought, we become party to a variety of contracts when we travel by bus or rail, purchase goods, accept services, and carry out our duties in the workplace. Contracts are so prevalent that ordinary men or women in the street do not realize the legal complexities of the transactions into which they enter. The use of Internet as a medium of communication has widened the scope for contract formation. Sales and purchase activities are conducted online using contracts either drawn up through the Internet itself or outside cyberspace. Several areas of uncertainty will have a significant impact on electronic contracting under Islamic Shari'ah law. This is a fundamental issue, especially with regard to online contracts for which the contracting parties are not physically present. In fact, if certain fundamental issues regarding online contracts are not resolved, then the dominance entry of the principles of ghārār (uncertainty) will apply, making such contracts unfeasible under Islamic Shari'ah law. Therefore, this paper aims to review what is actually meant by ghārār and how it affects the enforceability of electronic contracts under Shari'ah law. It also suggests how ghārār can be reduced or even eliminated to achieve an acceptable degree of certainty, thus enabling the practice of online contracts, particularly according to the Shari'ah.
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Trakic, Adnan. "Shari’ah compliance in Islamic finance contracts: the Malaysian constitutional dilemma." Oxford University Commonwealth Law Journal 20, no. 2 (July 2, 2020): 289–309. http://dx.doi.org/10.1080/14729342.2020.1812025.
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Dau-Schmidt. "Forward Contracts—Prohibitions on Risk and Speculation Under Islamic Law." Indiana Journal of Global Legal Studies 19, no. 2 (2012): 533. http://dx.doi.org/10.2979/indjglolegstu.19.2.533.
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Harahap, Mhd Yadi. "Pengikatan Jaminan Kebendaan dalam Kontrak Pembiayaan Muḍārabah sebagai Upaya Penyelesaian Sengketa Debitur Wanprestasi (Analisis Putusan Mahkamah Agung Nomor 272/K/AG/2015 tentang Pembiayaan Mudharabah)." Al-Manahij: Jurnal Kajian Hukum Islam 14, no. 1 (June 2, 2020): 51–67. http://dx.doi.org/10.24090/mnh.v14i1.2999.
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The imposition of collateral in muḍārabah financing contracts is a separate issue for Islamic banks even though in principle Islamic banks are not required to ask for collateral, but in practice, collateral is one of the elements that must be met by business actors in muḍārabah financing contracts. When the collateral is not applied, problems often arise in the case of debtor default. The problem in this study is whether the imposition of collateral can be used as an effort to resolve debtor disputes in muḍārabah financing contracts. To answer the research question, the method used is a normative juridical research method where the law is not only seen as law in books but also the law in action with the statutory approach and case study approach, namely the decision of the Mahkamah Agung. The results of the study presented that binding guarantees in muḍārabah financing contracts can be used as anticipation to minimize the risk of loss based on article 39 of Law no. 21 of 2008 concerning Islamic Banking. When the business actor defaults, neglects, and breaches the contract in muḍārabah financing, the guarantee can be used as an effort to mitigate the settlement of muḍārabah financing disputes to pay off obligations to Islamic banks.
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Ehsan, Muhammad Asif. "Futures Contracts in Islamic Finance: An Analytical Approach." Global Review of Islamic Economics and Business 1, no. 1 (May 4, 2015): 021. http://dx.doi.org/10.14421/grieb.2013.011-03.
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Futures contracts provide a useful means of reducing risk because these are highly liquid instruments that can be entered into or liquidated at any time. However, the debate on the legitimacy or otherwise of these contracts in the Islamic commercial law continues to invoke different contentions. The paper accentuates the fact that futures contracts are at bottom a new phenomenon of this age which have no precedent or parallel in the conventional law of transactions (muamalat). Therefore their legality or otherwise should be looked into with the Islamic viewpoint of general permissibility in relation to transactions. The paper examines a number of jurisprudential and legal issues such as non-existence of the subject-matter, sale prior to taking possession, bai al-kali bil-kali, speculation and hedging, and concludes that futures contracts are allowed to benefit from. However, only hedgers can take advantage of them. These instruments can never be used for purely speculative purposes where making or taking delivery is not intended. Although it is not necessary to pay the complete price to the seller at the time of the contract yet some other precautionary measures such as a bank guarantee or a fair amount of money to be given to the seller should be taken to ensure that pure speculation is scrupulously forestalled and the delivery would certainly be made.
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Mustafa, Madaa Munjid, Beebee Salma Sairally, and Marjan Muhammad. "Tier 2 Capital Instruments under Basel III: A Sharīʿah Viewpoint." Arab Law Quarterly 32, no. 3 (May 21, 2018): 205–41. http://dx.doi.org/10.1163/15730255-12320023.
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Abstract Basel III has redefined the criteria for regulatory capital instruments. Accordingly, Islamic banking institutions (IBIs) have to consider the issuance of instruments that would meet both the objectives of Basel III and Sharīʿah requirements. This research particularly aims to compare the regulatory requirements for issuing Tier-2 (T2) capital instruments as defined by Basel III, Bank Negara Malaysia (BNM) and IFSB-15. In this regard, the research examines the Sharīʿah issues related to subordination and conversion arising in exchange-based contracts (such as murābaḥah and iǧārah ṣukūk) and equity-based contracts (such as muḍārabah and wakālah ṣukūk). The study relies on library research to collect secondary data in the form of classical works of Islamic jurisprudence, analyses such work and links it with the present day regulatory requirements. The study finds that there are Sharīʿah concerns over the use of exchange-based contracts. However, the use of convertible muḍārabah and wakālah ṣukūk could be justified.
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Ziaurrahman, Muhammad. "TRADABLE AND NON-TRADABLE RIGHT FROM ISLAMIC LAW OF CONTRACTS PERSPECTIVE." Bait Al Mashura Journal, no. 11 (October 1, 2019): 15–55. http://dx.doi.org/10.33001/m011020191163.
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Islam advocates the protection of all types of Rights. However, each and every type of Right is not directly regulated by Shari’ah (Islamic Law) while the principles of Shari’ah can be construed to provide support for such regulation and protection. To the best of our knowledge, there is no such paper which efficiently talks about the tradable and non-tradable Rights from Islamic Law of Contracts Perspective as such that it provides a framework to evaluate different types of Rights for their permissibility of being subject matter of contract. This paper attempts to address this issue by using library research method (Qualitative Assessment) whereby, data is collected from books, articles, etc. Inductive and deductive methods are used for formulation of arguments and for providing justifications. The findings of this study suggest that not every Right shall be considered subject matter of contract. Furthermore, there are Rights that are specifically granted to the holder and they are not transferable, Rights that are allowed to be sold for a price, Rights that are not allowed to be sold but can be subject of sulh (compromise) / tanazul (waiver), and Rights that are allowed and sometimes not allowed to be inherited. Keywords: Rights in Islam, Sale of Rights, Intellectual property Rights
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Hassan, H. "Contracts in Islamic Law: The Principles of Commutative Justice and Liberality." Journal of Islamic Studies 13, no. 3 (September 1, 2002): 257–97. http://dx.doi.org/10.1093/jis/13.3.257.
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Cohen, Mark R. "A Partnership Gone Bad: Business Relationships and the Evolving Law of the Cairo Geniza Period." Journal of the Economic and Social History of the Orient 56, no. 2 (2013): 218–63. http://dx.doi.org/10.1163/15685209-12341301.
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Abstract Economic historians, beginning with Avner Greif, have looked to business letters from the Cairo Geniza to understand how medieval merchants in the Islamic Mediterranean organized business collaboration. They have noticed the prevalence of agency relations, which followed “informal” arrangements, unlike formal partnerships, which employed written contracts. This “method” was called ṣuḥba (“companionship”) in Arabic, and it entailed reciprocal exchange of favors between business “friends.” Much attention has been given to what Greif calls “private order” enforcement of agency contracts, whereby merchants belonging to a “closed” consortium reported instances of cheating or opportunism by a fellow merchant, in place of enforcement by religious courts. However, economic historians relying on the Geniza documents have paid inadequate attention to evolving Jewish law in the Islamic milieu. The present article, focusing on a mercantile dispute, brings evidence to show that Jewish legal scholars adopted a feature of Islamic judicial practice to strengthen their role in enforcement of informal agency contracts. In his Code, the Mishneh Torah, Maimonides put the final touches on this accommodation by incorporating agency into the law pertaining to contract enforcement among partners.
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Hoetoro, Arif. "Obstacles and Solutions in Performing Islamic Financial Contracts." IQTISHADIA 11, no. 1 (July 18, 2018): 65. http://dx.doi.org/10.21043/iqtishadia.v11i1.3200.
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There are some obstacles faced by Islamic microfinance institutions in performing Islamic financial contracts as purely demanded by Islamic law. In case of <em>Bayt al-Maal wa al-Tamweel</em> (BMT), the application of Islamic financial contracts needs a special approach and innovation. By taking BMT Sidogiri of East Java as the research site, this study qualitatively evaluated the practice of <em>murabahah</em>, <em>mudlarabah</em>, and <em>musharakah</em> contracts conducted by such an insti-tution. In examining these obstacles, this study had conducted several in-depth interviews with the branch manajer of BMT Sidogiri of Malang City. The findings revealed that the obstacles in performing Islamic financial contracts are dominated by lack of knowledge, asymmetric information, limited cooperation among related institutions, opportunistic behavior, and lack of social capital. To overcome these obstacles, it is recommended that the practices of Islamic financial transactions were not only in line with <em>shari’ah</em>-compliant but also with <em>shari’ah</em>-based schemes.
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Uddin, Md Akther, and Abu Umar Faruq Ahmad. "Conventional futures: derivatives in Islamic law of contract." International Journal of Law and Management 62, no. 4 (May 4, 2020): 315–37. http://dx.doi.org/10.1108/ijlma-10-2017-0242.
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Purpose This paper aims to compare and contrast the concept of conventional futures contract from the Islamic law of contract perspectives. The underlying theory and practice of Islamic finance is based on the principles of Islamic law of contract. Although the necessity of derivative instruments such as the case with futures contract is essential for developments in Islamic finance, the permissibility of using these instruments still remains a debatable issue. Design/methodology/approach The paper discusses arguments for and against using derivative instruments as in futures, for example, in light with the Qur’an and Sunnah (the Prophet’s traditions), as well as the views of classical scholars, jurists and contemporary researchers. Arguments for and against are analysed systematically to derive a logical conclusion. Findings The study finds that majority scholars consider futures contracts as non-compliant with the Islamic law due to the fact that selling something that does not exist, deferment in the both counter values, gharar or ambiguity and excessive risk taking, pure speculation and sale of one debt for another. Research limitations/implications The study focuses narrowly on conventional futures contract. Analysing other financial derivative contracts could be a future research endeavour. Practical implications The study has so far found the verdict of impermissibility of conventional futures contract in its current form as has been argued by majority scholars in the premise that they do not comply with the Islamic law. Policymakers and industry practitioners need to take this opinion of majority scholars while developing new Islamic financial derivatives. Originality/value To the best of the author's knowledge, the present research is the first attempt so far that explained the validity of conventional futures by analysing arguments of classical and contemporary jurists, scholars and researchers.
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Atsar, Abdul, and Azid Izuddin. "Implementation of fiqh based on the maslahah in murabahah financing in sharia banking." Ijtihad : Jurnal Wacana Hukum Islam dan Kemanusiaan 18, no. 1 (January 4, 2019): 119. http://dx.doi.org/10.18326/ijtihad.v18i1.119-136.
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The law of Muamalat gives the freedom to bind themselves to contracts and conduct transactions for mutual benefits and benefits. Islamic banking prepares various types of contracts in accordance with sharia provisions, one of the murabahah contracts. The formulation of the problem in this study is how is the application of fiqh maslahah in Islamic banking murabahah financing contracts? The method used in this study is a normative juridical method, which refers to the concept of law as a rule. In this research the author of the legal approach, analytical approach. The specification of this study is descriptive analytical research. The type of data used in this study are secondary data and primary data. Data collection begins with activities to identify and inventory data sources. Drawing conclusions is done using inductive methods. Murabahah is a sale and purchase agreement between a bank and a customer where the bank buys the goods needed and resells the customer with a basic cost plus profits agreed by both parties, there is no coercion from the parties in making murabahah agreements. In making and implementing murabahah financing contracts must pay attention to public interests not just the interests of the parties. According to Islamic law in making contracts based on sharia principles, must prioritize the benefit and refuse harm to achieve the goal of shara, namely to increase the benefit of the people by guaranteeing basic needs (dharuriyah) and fulfilling secondary needs, needs (hajjiiyah) and their complementary needs.
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Ahroum, Rida, Othmane Touri, and Boujemâa Achchab. "Murabaha and Musharakah Moutanaquissah pricing: an interest-free approach." Journal of Islamic Accounting and Business Research 11, no. 1 (January 6, 2020): 201–15. http://dx.doi.org/10.1108/jiabr-12-2016-0147.
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Purpose This study aims to provide an interest-free valuation methodology for Murabaha and Musharakah Moutanaquissah contracts. Indeed, In Islamic finance, Murabaha contracts are widely negotiated. Their yield depends mainly on the contracted profit margin. In the current practices, this latter is based on a reference interest rate, which is highly criticized in Islamic literature, just like Musharakah Moutanaquissah contracts. In this perspective, authors suggest a new valuation methodology with parameters related to the real economy. Design/methodology/approach The authors apply an indirect method to determine a lower bound of the profit margin of a Murabaha contract. Considering Musharakah Moutanaquissah as an equivalent contract, the new valuation methodology is based on participation and focuses on parameters from the real economy: the market rent and the rate of return used for an equivalent project. Findings The results show that the pricing of Musharakah Moutanaquissah contracts could be based on several parameters linked to the real economy. Consequently, an implied value of the profit margin could be computed. Also, the interest rate is no longer implicated in the pricing of neither Murabaha nor Musharakah Moutanaquissah contracts. Research limitations/implications The valuation methodology is applicable only if the underlying asset’s financing can be made with Murabaha and Musharakah Moutanaquissah contracts. Practical implications This work will restore the link between Islamic contracts and the real economy. For Islamic banks in particular, the suggested model would reduce the exposure to reputational risk and enhance the compliance to the Sharia (Islamic Law). Originality/value Several studies have analyzed the dependence between Islamic contracts and interest rates. In general, these studies confirm this dependence and few of them have suggested alternatives. Thus, the authors contribute to the literature by providing a practical and applicable model to detach the valuation of Murabaha and Musharakah Moutanaquissah from the interest rate.
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Muhamed, Nurul Aini, Muhammad Iqmal Hisham Kamaruddin, and Nur Syazwani Nasruddin. "Positioning Islamic social enterprise (ISE)." Journal of Emerging Economies and Islamic Research 6, no. 3 (September 30, 2018): 28. http://dx.doi.org/10.24191/jeeir.v6i3.8785.
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The Islamic Social Enterprise (ISE) is increasingly gaining attention due to its flexibility to perform trading activities for income generation while at the same time offering societal contributions. The roles of ISE is greatly viewed from value-based perspective, where the ISE’s objective is to support the Islamic third economic sector in easing the needs of those unfortunate and middle class citizens. Involving in trading activities is imperative for this institution given that collections from donations are insufficient as the demand for contribution is very high, as well as there is some cost acquired in its management. In this case, ISE’s sustainability should be taking care of to ensure the continuous contributions can be given to society. There are several perspectives on the definition of ISE since it is normally formatted in different forms, receiving initial and continuous source of collections from different Islamic charitable contracts and running different activities. Therefore, this paper attempts to position the definition and the context of ISE by deliberating its definitions and characteristics. Thus, the paper reviews the existing literature from the area of Islamic third economic sector and Islamic transaction law and inter-relating these aspects in the context of ISE. The focus is given on the aspect of the institution’s objectives, source of capital using the Islamic charitable contracts, its activities and; income generation and distribution. Based on the findings, the distinctive yet flexible definition of ISE expands the new and relevant area of Islamic third economic sector using Islamic charitable contracts. The discussion highlights that ISE should be guided by maqasid shariah, and follow the Islamic principles. This paper points out that not all Islamic charitable contracts are applicable for ISE, which should be comprehended for new established ISE.
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Huda, Ikhwanul. "The Islamic Law Perspective of Universitas Muhammadiyah Surakarta Pension Fund Management." Journal of Islamic Economic Laws 2, no. 1 (February 27, 2019): 60–87. http://dx.doi.org/10.23917/jisel.v2i1.7664.
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Pension fund is one of the non-bank financial institutions that manages and implements program to generate retirement benefits. Pension fund is one of potential resources of fund which operation can be based on either conventional or Islamic principle. This research will focus on the type of contracts used by Universitas Muhammadiyah Surakarta (UMS) Pension Fund whether its operation conforms the requirements of shariah princple or not. This research aims to know, elaborate and evaluate the conformity of shariah principle in the UMS Pension Fund operation. The type of research carried out here is qualitative with the descriptive evaluative approach. The data is obtained through observation, documentation and interview. The result of the research shows that the contracts used in managing the fund by UMS Pension Fund are muḍārabah, wakalah, ijārah and hibah. Muḍārabah contract is used between the pension fund and the participants as well as between pension fund and investee. Wakalah contract is used between the employer which is UMS in this case and the pension fund. Meanwhile, hibah contract is used between employer and participants.
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Puneri, Atharyanshah, Ilhamiddin Ikramovich Nazarov, Moustapha Chora Ahmat, and Muhamad Ikhwan Arif. "The Litigation Process in Handling Murabahah Cases: A Comparative Study between Malaysia and Indonesia." International Journal of Management and Applied Research 6, no. 4 (November 1, 2019): 307–16. http://dx.doi.org/10.18646/2056.64.19-023.
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In conventional banking, the validity of a contract is recognised through case law and the legal system of the country. Islamic banking contracts follow the same laws in addition to Shariah principles, which sometimes create legal uncertainty. Murabahah is an Islamic financial instrument which allows a buyer to purchase goods from a seller at a specified profit margin. In contemporary banking practice, Murabahah has been widely used by Islamic financial institutions as a financing contract. It is therefore important to scrutinise the legality and validity of Murabahah practised by Islamic financial institutions in contemporary settings because the existing substantive law on contracts and commerce may not fit well with the Shariah principles. This paper selected three Murabahah cases in Malaysia and Indonesia between 2013 and 2016 as points of comparison. Future research could compare and contrast legal cases over a wider time span.
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Cipta, Hendra. "DISKURSUS KONSEP DAN PRINSIP AKAD DALAM HUKUM ISLAM." ASY SYAR'IYYAH: JURNAL ILMU SYARI'AH DAN PERBANKAN ISLAM 1, no. 1 (June 30, 2016): 63–90. http://dx.doi.org/10.32923/asy.v1i1.666.
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Contract has an important role in the agreement and the engagement of either Islamic law or in the positive law. The existence of the contract with the Islamic principles would sustain the contract to the benefit and avoid deception and fraud between the parties. Islamic principles are based on permissible, voluntary, welfare and justice needs to be embedded in the Islamic contracts. If these principles are at parties, then the contract will not be a contract that is imperfect.
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Morgan, Jonathan. "REPUDIATORY BREACH: INABILITY, ELECTION AND DISCHARGE." Cambridge Law Journal 76, no. 01 (March 2017): 11–14. http://dx.doi.org/10.1017/s0008197317000162.
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STUDENTS – and indeed judges – of the law of contract have been sorely tried by White & Carter (Councils) Ltd. v McGregor [1962] A.C. 413. Mercifully, other propositions about the breach and discharge of contracts seem elementary.
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Chuah, Jason. "Impact of Islamic Law on Commercial Sale Contracts – A Private International Law Dimension in Europe." European Journal of Commercial Contract Law 2, no. 4 (October 1, 2010): 191–204. http://dx.doi.org/10.7590/ejccl_2010_04_01.
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Haddadi, Mahdi. "The Nature of Iranian Petroleum Contracts in Upstream Section." International Letters of Social and Humanistic Sciences 44 (December 2014): 45–52. http://dx.doi.org/10.18052/www.scipress.com/ilshs.44.45.
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Petroleum contracts are an important and sensitive issue in Iranian petroleum industry. Monitoring on petroleum contracts especially in upstream section is too important due to length of term and high financial volume. After Islamic revolution in Iran, a challenging discussion between the Parliament and Government was the supervision and approval of petroleum contracts by Parliament. Article 77 of Iranian Constitutional Law permits the Parliament to monitor on international agreements directly. Therefore, determining the nature of petroleum contracts would highly impact on this kind of supervision by the Parliament. However, Parliament can monitor on these contract properly by using its authorities mentioned in the Constitutional Law and by codification or modifying relevant laws including the Law to Modify Petroleum Law.
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Jaenudin, Jaenudin. "DINAMIKA PENERAPAN AKAD SYARIAH DALAM PRODUK KEUANGAN DI BANK SYARIAH." Asy-Syari'ah 22, no. 2 (January 13, 2021): 259–74. http://dx.doi.org/10.15575/as.v22i2.7504.
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Abstract: Sociologically, the existence of Islamic banks in Indonesia had developed since the early 1990 through a long time of workshops and bureaucratic processes until Bank Muamalat Indonesia was established as the first Islamic bank in Indonesia. The existence of Bank Muamalat Indonesia, as the first Islamic bank, has a mission to present an Islamic banking institution that is free from the interest system by replacing its operational system through Islamic principles. Normatively, the profit sharing concept used to an operational system for Islamic banks in Indonesia which has been regulated in Article 1 Number 12 of the Law of Banking Number 7 of 1992, then the dual banking system in Article 9 of the Law of Banking Number 10 of 1998, and the latest. is the application of Islamic principles in the Law of Islamic Bank Number 21 of 2008 through using six patterns: first, the deposit through the wadi'ah contract; second, borrowing through qard and qardh al-hasan contracts; third, the profit sharing scheme through mudharabah and syirkah contracts; fourth, buying and selling through murabahah, salam, and istishna' contracts; fifth, the rental scheme through ijarah and ijarah muntahiya bi al-tamlik contracts; and sixth, the services through wakalah, kafalah, hiwalah, ujr, sharf, and rahn contracts. The result of this study shows that the changes of Islamic banking regulations have implications to the dynamics of Islamic contract implementation in Islamic banking financial products in Indonesia.Abstrak: Secara sosiologis eksistensi bank syariah di Indonesia sudah berkembang sejak awal tahun 1990-an melalui serangkaian proses panjang lokakarya dan birokrasi sehingga berdiri Bank Muamalat Indonesia sebagai bank syariah pertama di Indonesia. Eksistensi Bank Muamalat Indonesia sebagai bank syariah memiliki misi untuk menghadirkan lembaga perbankan syariah yang bebas dari sistem bunga dengan mengganti sistem opersionalnya dengan prinsip-prinsip Islam. Penggunaan konsep bagi hasil sebagai sistem operasional bank syariah di Indonesia secara normatif telah diatur dalam Undang-Undang Nomor 7 Tahun 1992 tentang Perbankan pada Pasal 1 angka 12, kemudian dual banking system dalam Pasal 9 Undang-Undang Nomor 10 Tahun 1998 dan yang terkahir adalah penerapan prinsip syariah dalam Undang-Undang Nomor 21 Tahun 2008 dengan menggunakan enam pola: pertama, pola titipan melalui akad wadi’ah; kedua, pola pinjaman, melalui akad qard dan qardh al-hasan; ketiga, pola bagi hasil melalui akad mudharabah dan syirkah; keempat, pola jual beli melalui akad murabahah, salam, dan istishna’; kelima, pola sewa melalui akad ijarah dan ijarah muntahiya bi al-tamlik; keenam, pola jasa melalui akad wakalah, kafalah, hiwalah, ujr, sharf, dan rahn. Hasil penelitian ini menunjukan bahwa perubahan regulasi perbankan syariah telah berimplikasi terhadap dinamika penerapan akad syariah dalam produk keuangan bank syariah di Indonesia.
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Hasanudin, Hasanudin. "Kontroversi Hukum Asuransi: Studi tentang Argumentasi Muṣṭafā Aḥmad Al-Zarqā’ dalam Pembolehan Asuransi." Al-Manahij: Jurnal Kajian Hukum Islam 12, no. 1 (June 22, 2018): 87–104. http://dx.doi.org/10.24090/mnh.v12i1.1322.
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Insurance came to the Islamic world around the 19th century AD. As long as the insurance law in Islam is concerned, the contemporary Islamic scholars are divided into three groups. First, scholars who allow it absolutely; secondly, the ulama who forbid it absolutely; and thirdly, scholars who legalize social insurance and forbid commercial insurance. One of the contemporary scholars who justifies insurance is Muṣṭafā Aḥmad al-Zarqā', a prominent Islamic scholar of Ḥanafi from Syria. The findings of this study are that in the perspective of Islamic legal theory the arguments of al-Zarqāʼ can be justified. The theory of Islamic law used by al-Zarqā' in examining insurance is the theory of ijtihad bi ar-ra'y by istiṣḥābī and ta'līl methods. Al-Zarqa' views that insurance is a new contract that does not exist in Islamic jurisprudence. Every Muslim is allowed to create new contracts that have not existed before as long as there is no prohibition against them. Al-Zarqāʼ analogize the insurance with the existing contracts in Islamic jurisprudence, among which is the contract of muwālāh from Hanafite school of law, ḍamān khaṭr al-ṭarīq from Hanafites, al-iltizām wa al-wa’d al-mulzim in Malikites, and al-‘āqilah in Syafi’ites.
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Fares, Laita Ibtihal, Abdellah Marghich, and Mohamed Habachi. "Urbūn (Earnest Money): Legal Framework in Islamic and Positive Law and Comparison with the Call Option Contract." Arab Law Quarterly 34, no. 3 (March 3, 2020): 209–40. http://dx.doi.org/10.1163/15730255-14030066.
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Abstract Financial derivatives such as futures, options and swaps play an important role in the development of financial markets because they can be employed in many ways, notably for hedging, arbitrage and speculation. However, for a variety of reasons, such conventional instruments are considered unlawful under Islamic law and are impermissible in Islamic financial markets. The search for a Sharīʿah-compliant alternative has become a major concern to Islamic financial and legal engineering. Indeed, in this article, we will study the ʿurbūn (earnest money) contract according to Islamic law and positive law in several Muslim countries. Thereafter, we will examine the possibility of substituting the conventional call option contract (Call) by the ʿurbūn contract for hedging market risk, by providing a technical and legal comparison between the two contracts.
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Razali, Siti Salwani. "The Invitation to Treat and Mu`atah in Online Contracts." American Journal of Islamic Social Sciences 26, no. 2 (April 1, 2009): 79–101. http://dx.doi.org/10.35632/ajiss.v26i2.379.
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When dealing with an offer, it is crucial to determine whether a “statement” amounts to an “offer” or a mere “invitation to treat.” Even though “offer” and “acceptance” are among the basic elements of any binding contract, both [English] common law and Islamic law have their own views on what constitutes an invitation to treat. This paper focuses on the invitation to treat and mu`atah as specified in Islamic law. The following points will be discussed: (1) how the invitation to treat can be considered a valid contract, although common law has ruled it invalid because a mere invitation to treat does not constitute an offer; (2) a comparison of their differences in the context of online or cyber transactions. Several Qur’anic verses, hadiths, and opinions from Muslim and non-Muslim scholars will be presented, and specific cases will be referenced; and (3) providing a better understanding of both principles and an analysis of some critical issues, especially with regard to the invitation to treat.
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Razali, Siti Salwani. "The Invitation to Treat and Mu`atah in Online Contracts." American Journal of Islam and Society 26, no. 2 (April 1, 2009): 79–101. http://dx.doi.org/10.35632/ajis.v26i2.379.
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When dealing with an offer, it is crucial to determine whether a “statement” amounts to an “offer” or a mere “invitation to treat.” Even though “offer” and “acceptance” are among the basic elements of any binding contract, both [English] common law and Islamic law have their own views on what constitutes an invitation to treat. This paper focuses on the invitation to treat and mu`atah as specified in Islamic law. The following points will be discussed: (1) how the invitation to treat can be considered a valid contract, although common law has ruled it invalid because a mere invitation to treat does not constitute an offer; (2) a comparison of their differences in the context of online or cyber transactions. Several Qur’anic verses, hadiths, and opinions from Muslim and non-Muslim scholars will be presented, and specific cases will be referenced; and (3) providing a better understanding of both principles and an analysis of some critical issues, especially with regard to the invitation to treat.
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Sairally, Beebee Salma, Marjan Muhammad, and Madaa Munjid Mustafa. "Additional Tier 1 Capital Instruments under Basel iii: A Sharīʿah Viewpoint." Arab Law Quarterly 30, no. 2 (February 24, 2016): 138–62. http://dx.doi.org/10.1163/15730255-12341314.
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This research aims to compare the regulatory capital instruments for Islamic banking institutions (ibis)—in particular the qualifying Additional Tier 1 (AT1) capital instruments—as defined by Basel iii, Bank Negara Malaysia (bnm) and ifsb-15 (issued by the Islamic Financial Services Board). Principally, the research examines the Sharīʿah issues, especially related to subordination, arising in equity-based contracts when used for structuring AT1 capital instruments. In particular, it examines the muḍārabah ṣukūk issued by the Abu Dhabi Islamic Bank (adib) in 2012. The study finds that the most appropriate Sharīʿah contract that would be suitable for structuring AT1 capital instruments would be mushārakah. The present study is considered an original attempt in examining an under-researched topic relating to Basel iii and its Sharīʿah perspective. The study will be an important reference point to Islamic banks when structuring AT1 capital instruments.
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Binti Abdullah, Hidayah. "Good Faith, Fair-Dealing and Disclosure Requirements in Hire-Purchase Contracts in Malaysia: Islamic and conventional Perspectives." Journal of Islam in Asia (E-ISSN: 2289-8077) 6, no. 1 (September 2, 2009): 123–48. http://dx.doi.org/10.31436/jia.v6i1.54.
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This paper aims to analyze the importance of the element of good faith, fair-dealing and disclosure requirements in a hire-purchase contract from both Islamic and conventional financing perspectives. The application of good faith is determined at a particular time by those standards of honesty, fairness and reasonableness prevailing in a given community that are considered appropriate for formulation in new, revised rules. In the eighteenth century, the concept of fair-dealing was viewed as an essential concept and emerged as a governing principle applicable to all common-law contracts. Under Islamic Law, the elements of good faith (iÍsÉn) and fair-dealing (Ñadl) are important and highly emphasized. One of the conclusions made in this research is that good faith and fair-dealing are two crucial elements in hire-purchase contracts, both in the Islamic and conventional systems.
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Jadalhaq, Iyad Mohammad. "Duress and Its Impact on Contracts in the uae Law on Civil Transactions: Analytical Study in the Light of Islamic Jurisprudence." Arab Law Quarterly 31, no. 1 (February 9, 2017): 30–53. http://dx.doi.org/10.1163/15730255-12341331.
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This research addresses and analyses ‘duress’ and its impact on contracts, being one of the defects in consent, as regulated by the uae legislators in the Law on Civil Transactions. uae legislators have gleaned duress-related provisions from Islamic jurisprudence, as per its approach to regulation of the provisions of civil transactions. Therefore, this research needs to be referred to the different Schools of Islamic jurisprudence, these being the source of the uae Law on Civil Transactions. The research concluded that there is consensus among scholars of Islamic jurisprudence, as to the fact that duress affects a contract; however, these scholars hold differing views as to the extent of such impact. The research further concluded that the uae legislators have derived the legal regulation of duress from the Ḥanafī and Mālikī Schools of Islamic Sharīʿah—though there are some differences between these Schools—and the research arrives at additional conclusions and makes some recommendations.
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al-Shami, Abdullah Muhammad. "Intentions and their Effects on the Legality of Dispositions and Contracts." Journal of Qur'anic Studies 4, no. 1 (April 2002): 130–41. http://dx.doi.org/10.3366/jqs.2002.4.1.130.
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In Islamic law judgements on any human action are usually evaluated in terms of the intention involved. Accordingly, the rules of substantive issues have to be accommodated under the basic principles of Islamic jurisprudence. The understanding of these principles by the juristic scholar is highly rewarding because it will lead the muftī to the right path in deriving legal opinions from the original sources. The basic principle of Islamic jurisprudence, which stipulates that ‘all actions depend on intentions,’ has played an important role in the construction of Islamic jurisprudence. Moreover, this rule has a special place in the theory of Islamic legal contract. So what is the effect of intention in the validity of human actions and legal contracts? It is known that pure intention has significant effects on spiritual worship and legal contracts of transaction. It also gives guidance for earning rewards from Almighty Allah. This article concentrates on the effect of intention in perpetual worship, the concept of action and intention in Islamic legal works, the kind of contract with all its components, and the jurists' views on the effects of intention in human action and legal contract along with their discussion and counter-arguments.
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Cattelan, Valentino. "The Typewritten Market: Shariʿah-Compliance and Securitisation in the Law of Islamic Finance." Arab Law Quarterly 35, no. 1-2 (July 13, 2020): 74–91. http://dx.doi.org/10.1163/15730255-bja10051.
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Abstract By taking inspiration from Wisława Szymborska’s poetry and Brinkley Messick’s scholarship, this article interprets the law of Islamic finance as evidence of a radical shift in the social anthropology of Islamic law from classical to contemporary times. To this aim it highlights the changes from fiqh in medieval trade (where individual actions were judged according to rules legitimised by their own local context) to the current process of Shariʿah-compliance, arguing that this process belongs to a textual polity where standardised certificates, contracts and securities have replaced actual social relations in the global financial market. In the light of this, the article advances the notion of Typewritten Market to depict the nature of Islamic finance as a socio-economic space embodying a ‘de-materialised Šarīʿah’: that is to say, a meaning of Islamic law whose contemporary time belongs more to legal/financial technology rather than to Muslim human action.
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Najeeb, Syed Faiq. "Trading in Islam: Shari‟ah Rules and Contemporary Applications in Islamic Financial Transactions." Journal of Emerging Economies and Islamic Research 2, no. 2 (May 31, 2014): 41. http://dx.doi.org/10.24191/jeeir.v2i2.9624.
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This paper attempts to comprehensively highlight the various Islamic laws and guidelines which govern contracts of exchange involving selling of goods and trading of debts. Muslim jurists have extensively researched, reasoned and deliberated over centuries in order to compile a comprehensive framework of principles Muslims are required to adhere to when engaging in selling of goods and trading of debts. This compilation is based on the rulings derived from the Quran and Sunnah and other secondary sources of Islamic law. The paper introduces the readers to various categories of exchange contracts and examines the elements which may render them valid or void along with details on the general conditions and prohibitions in Islam when it comes to trading. More importantly, the paper discusses the contemporary applications of these contracts in the modern Islamic financial industry and apprises the readers of the current Shari‟ah issues and challenges being faced by the Islamic financial institutions. The paper also highlights critical issues which the Islamic financial industry needs to overcome to sustain its tremendous growth along with a few recommendations for the industry to improve its practices in future.
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Pasaribu, Jhon Amri S., Elvi Zahara Lubis, and Muhammad Yusrizal Adi Syaputra. "Pelaksanaan Gadai Emas Dengan Sistem Syariah Di Bank Mandiri Syariah Cabang Kisaran." JUNCTO: Jurnal Ilmiah Hukum 2, no. 1 (July 6, 2020): 51–59. http://dx.doi.org/10.31289/juncto.v2i1.233.
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Profit sharing system in Islamic banks is one of the uses of sharia principles because interest is contrary to Islamic law. This type of research used in this study is normative legal research and the nature of the research is analytical descriptive. Sources of data used in this study are secondary data and primary data. The results of the study are the implementation of a gold pawning system with sharia at Bank Mandiri Syariah Kisaran Branch Office using 3 (three) contracts on gold-backed qaradh products, rahn contracts for gold binding and ijarah contracts for binding utilization of gold storage and maintenance services as collateral for loan funds. The implementation of the gold pawning is in accordance with the rules of Islamic law and sharia principles regarding gold rahn. The obstacles that arise in the implementation of the gold pawning with the sharia system that is not understanding the mechanism of rahn contract, customers who are not disciplined in paying installments so that when the gold is mortgaged auctioned auctioned by the bank and collateral carried by the customer does not comply with the specified specifications by the bank.
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Novitarani, Anisah, and Ro’fah Setyowati. "Analisis Crowdfunding Syariah Berdasarkan Prinsip Syariah Compliance serta Implementasinya dalam Produk Perbankan Syariah." Al-Manahij: Jurnal Kajian Hukum Islam 12, no. 2 (December 5, 2018): 247–62. http://dx.doi.org/10.24090/mnh.v12i2.1759.
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The presence of fintech in the form of crowdfunding with sharia principles can increase financing in Islamic banking. The concept of Islamic crowdfunding must basically be guided by the Qur'an and the Sunnah. This is in accordance with the Fatwa of the National Sharia Council-Indonesian Ulama Council (DSN-MUI) Number 117 / DSN-MUI / II / 2018. Referring to the Fatwa of the DSN-MUI, sharia crowdfunding in its implementation must be in accordance with Islamic law. The suitability of Islamic law with the concept of sharia crowdfunding can be seen from the perspective of shariah compliance, which must be free from gambling (maysīr), usury (ribā), fraud (gharar) and wrongdoers (ẓālim). Sharia crowdfunding can have at least two types of contracts in the transaction, musyārakah and qarḍ. The two contracts must fulfill their respective terms and conditions so that the contract implemented can be considered valid. Problems that are often faced in implementing crowdfunding are in terms of legality and security. The problem of the law regarding the practice of sharia crowdfunding needs to be monitored by the National Sharia Board in order to conform to sharia so that people do not hesitate to invest through the sharia crowdfunding platform.
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Wahid, Nur. "Pelibatan Akad Ijārah dalam Praktik Rahn di Bank Syari’ah Perspektif Hukum Ekonomi Syariah." Al-Manahij: Jurnal Kajian Hukum Islam 12, no. 1 (June 22, 2018): 147–61. http://dx.doi.org/10.24090/mnh.v12i1.1349.
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The involvement of lease (ijārah) contract in pawn practice in syari’ah bank resulted in a combination of contract known as multi-‘aqd. Concerning multiple contracts (multi-‘aqd), there are a number of Prophetic traditions, at least three hadiths that are outwardly (textual meaning) indicating a ban on the use of multiple covenants. For example, the hadith about the prohibition of trading and debts (bai’ wa salaf), the prohibition to trade with two contracts (bai’atain fī bai’ah), and two sales and purchase contracts in one transaction (ṣafqatain fī ṣafqah). The contract of lease (ijārah) and the pawn agreement (rahn) are two different types of contract, in which the lease includes the type of sale and purchase agreement, while the pawn includes the type of loan contract. This combination of contracts is a type of multi-contract which is prohibited based on the hadith above. Transactions with this multi-contract form almost exist in all Islamic banking products today. This paper concludes that the law of engagement of lease contracts in pawn practices in Islamic banks is allowed. The Islamic jurisprudence scholars argue that this combination of contracts is compatible with the purpose of sharia (maqāṣid al-sharī’ah), namely the ease in muamalah, lightening in the burden, and provide opportunities for innovation and the relevance of the development of the times and human needs in transactions.
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Ridwan, Ridwan. "Konstruksi filosofis akad-akad ekonomi syariah." IJTIHAD Jurnal Wacana Hukum Islam dan Kemanusiaan 15, no. 2 (January 22, 2016): 257. http://dx.doi.org/10.18326/ijtihad.v15i2.257-274.
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The problem that frequently appears in Islamic economic contract is the debate on its normative legaland philosophical basis. This article will explain that many contracts in Islamic economic law are basedon the philosophy of law. The philosophy of Islamic economic law is based on triangle concept, i.e.philosophy of God, human being, and nature. It is characterized by God-oriented (rabbani) and humanity-oriented (insani) economy. Its God-oriented character preceives Allah (God) as the center ofhuman awareness in performing economic activities and it reflects in economic behavior considering thenature of human being and promoting the values of goodness, justice, and mutual relationship.
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Dodeen, Mahmoud M. "Formation of Contract under the Islamic Majallah and unidroit Principles of 2010." Arab Law Quarterly 30, no. 3 (August 8, 2016): 262–77. http://dx.doi.org/10.1163/15730255-12341326.
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This article focuses on the rules for creating contracts under the Islamic Majallah and unidroit Principles of 2010. The research uses an analytical approach and comparative Arab jurisprudence. To compare the Majallah and unidroit Principles academically, this article’s focus is especially on countries where the civil law originated from the Majallah. Such countries include Jordan, Kuwait, and the United Arab Emirates. Here we show that the Majallah generally agrees with the unidroit Principles regarding the rules of contract formation. The main points of disagreement between the two are seen in a very limited number of concepts.
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Mohammed, Mohammed Jassem, Rahmah Ismail, and Ruzian Markom. "Potential Jurisprudential Adaptation for the Tripartite Credit Card Transaction from an Islamic Perspective." Arab Law Quarterly 28, no. 4 (November 12, 2014): 317–65. http://dx.doi.org/10.1163/15730255-12341286.
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The credit card represents one of the most important financial instruments at present. The credit card concept originated and was developed in the West under the rules of conventional law. Over time the credit card has invaded the Islamic markets. A credit card transaction does not fall under any of the known financial contract categories in Islamic principles. Therefore, determining the Islamic rulings and finding a jurisprudential adaptation for such credit card transactions is essential for clarifying relevant jurisprudential rulings, as one cannot specify whether a specific transaction is permitted or prohibited without a jurisprudential adaptation on the matter. Islamic researchers have taken great effort to clarify the jurisprudential adaptation of a credit card transaction. This article will examine the potential legitimate nature of the credit card transaction in order to determine Islamic rulings. The concept ‘credit card’ originated in the West and developed under the rules of conventional law. Although credit cards have since invaded the Islamic markets, their transactions do not fall under any of the known categories for Islamic financial contracts; therefore, one must determine the Islamic rulings that relate to such transactions. Islamic scholars have exerted much effort to find a jurisprudential adaptation for the credit card transaction, which is essential in order to clarify jurisprudential rulings on transactions and to specify whether a transaction is permitted or prohibited. This article examines the potential legitimate nature of the credit card transaction in order to determine the Islamic rulings.
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Abdullah Mohammed Ali Al. Mekhlafi, Abdullah Mohammed Ali Al Mekhlafi. "Controls of the conditions associated with the contract in Bahraini civil law and Islamic jurisprudence: comparative analytical study: ضوابط الشروط المقترنة بالعقود في القانون المدني البحريني والفقه الإسلامي: دراسة تحليلية مقارنة." مجلة العلوم الإقتصادية و الإدارية و القانونية 5, no. 15 (August 29, 2021): 125–04. http://dx.doi.org/10.26389/ajsrp.k301220.
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This study deals with the controls of the conditions associated with the contract in Bahraini civil law and Islamic jurisprudence. The knowledge of conditions carries great importance in the financial transactions that take place between individuals in society, and in particular the contracts that are concluded between the contracting parties and the terms that contain these contracts and which are relied upon in The protection and guarantee of contracting funds, as the various contracts and actions through which individuals practice different transactions include many conditions, and on these conditions the validity and invalidity of contracts depend, and given the impact of the conditions on contracts, civil laws have interfered and legal controls have been set for the conditions that are set in the different contracts to protect it from nullity. This research aims mainly to define the legal and controls for the conditions associated with contracts in Bahraini civil law and Islamic jurisprudence, and to show the impact of conditions on the validity of contracts. This study has reached a number of results, the most important of which is that the principle in the conditions is permissibility and not prohibition, and it has restricted freedom in terms of contracts associated with contracts by placing exceptions on the original in order to achieve the public interest and the private interest, and adopting this principle is a desire of the Bahraini legislator not to restrict and limit the contracting parties. The permissibility of the conditions associated with contracts in specific conditions, and the study also showed that adherence to the legal controls related to the conditions protect contracts and actions from nullity, and the contracting parties avoid disputes and material losses that may befall them as a result of contract nullity in the event of Non-compliance with legal and legitimate Controls.
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Jadalhaq, Iyad Mohammad. "Gross Fraud in the UAE Civil Code: From Its Roots in Islamic Jurisprudence to Contemporary Proposals for Reform." Arab Law Quarterly 34, no. 2 (September 26, 2019): 109–40. http://dx.doi.org/10.1163/15730255-12341046.
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Abstract The regulations concerning gross fraud instituted by the United Arab Emirates (UAE) legislature in the UAE Civil Code are derived from provisions put forward by the Ḥanafī school of law. A general rule was put forward, and exceptions thereto were set. A certain remedy for gross fraud was instituted, namely, giving the defrauded party the right to terminate the contract. This article determines the comprehensiveness and adequacy of the legal texts dealing with the impact of gross fraud on contracts in the UAE Civil Code, the methods by which balance could be achieved between the interests of the contracting parties, and the means of protecting the defrauded contractor. Furthermore, shortcomings and defects in the existing legal texts that require amendment and reform are highlighted. This study concludes that the legislative treatment of the impact of gross fraud on contracts is insufficient, and advances possible recommendations.
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Fayyad, Mahmoud. "Measures of the Principle of Good Faith in European Consumer Protection and Islamic Law, a Comparative Analysis." Arab Law Quarterly 28, no. 3 (September 23, 2014): 205–30. http://dx.doi.org/10.1163/15730255-12341283.
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Evaluation of the success of consumer protection regulations in many Islamic states reflects defeated outcomes with regard to the application of many declared rights and objectives; it requires the fair implementation of the principle of good faith where clear and specific measures are required. It would be better for Muslim lawmakers to benefit from the European practice and Islamic guidelines; those criteria and measures are provided in the European Proposal of Consumer Rights (the Proposal). The Proposal provides that “A term is off in conjunction with this principle since it creates a significant imbalance of rights and obligations between the contracting parties”. Clear common used terms are provided in the lists of the Proposal. This voice is also well known in Islamic law; contracts of honesty (amāna) and rules of disproportion between the contradictable interests indicate this implementation.