THE CONTRACT OF BAY-AL-SALAM AND BAY-AL-ISTISNA IN ISLAMIC COMMERCIAL LAW: A COMPARATIVE AND APPLICATION ANALYSIS FOR WAQF

Transcription

1 THE CONTRACT OF BAY-AL-SALAM AND BAY-AL-ISTISNA IN ISLAMIC COMMERCIAL LAW: A COMPARATIVE AND APPLICATION ANALYSIS FOR WAQF Nor Azurah Md. Kamdari 1 Remali Yusoff 2 Shaherah Abdul Malik 3 ABSTRACT Islamic commercial law is one component under the Shari ah law. There are various types of Islamic commercial law, however, the objective of this paper only focus in the contract of debt financing or deferred payments which are Bay-al-Salam and Bay-al-Istisna and application analysis for WAQF. The research of these two types of contract begins with the definition of the contract, contract conditions, similarities and differences. The paper based on secondary data which to compare the Bay-al-Salam and Bay-al-Istisna. An overview of the contracts and its application for WAQF will be discussed further in this paper. Keywords: Bay-al-Salam, Bay-al-Istisna, Entrepreneur, Buyer, Rabbumal, Mudarib, WAQF. 1 Faculty of Business Management, Universiti Teknologi Mara Johor, Jalan Muar, Segamat Johor, noraz013@johor.uitm.edu.my 2 Faculty of Business, Economics & Accountancy, Universiti Malaysia Sabah, Kota Kinabalu, Sabah, remyuf@ums.edu.my 3 Faculty of Business Management, Universiti Teknologi Mara Johor, Jalan Muar, Segamat Johor, shaherah@johor.uitm.edu.my 1

2 1.0 INTRODUCTION The basic philosophy behind Islamic financing is that it must be ascertained whether: (i) The lender is lending money to the borrower as a sympathetic act, (ii) The lender is lending money to the borrower, in order to reaffirm this principle, and (iii) The lender is advancing his/her money in order to share in the profits of the borrower. In the first two cases ((i) and (ii)) the lender is not entitled to claim any additional amount over and above the principal, since in case (i) the lender has offered financial assistance to the borrower on humanitarian grounds or other sympathetic considerations, and in case (ii) the lender s sole purpose is to save his/her money and not to earn any extra income. However, if the lender s intention is to share the profits of the borrower, as in case (iii) the lender shall have to share their loss also, if the borrower suffers a loss. Therefore, in this case, the lender s objective cannot be served by a loan transaction. He/She will have to undertake a joint venture with the opposite party, whereby both will have a joint stake in the business and will share its outcome on a fair basis (Yusoff & Wilson, 2004). Financing modes can be distinguished according to the nature of the financing in different techniques. The modern banking and financial system has come into being to meet human needs for services and financing. Generally, there are two main types of financing, which are equity financing and debt financing. Islamic banking has its own laws in the form of profit-sharing contracts through which the customers (Muslims) can fulfil their needs for equity financing. In Islamic banking there are two major contracts in equity financing: Al-Musharakah (joint-venture profit-sharing) and Al-Mudharabah (trustee profit-sharing). Debt financing includes cost-plus transactions known as Al-Murabahah, leasing transactions known as Al-Ijarah and Al-Ijarah Wa Iqtina, deferred payment sale (Bai Muajjal), purchase with deferred delivery (Bay-al-Salam) and sale on order (Bay-al-Istisna) (Yusoff & Wilson, 2005). From the context of Islamic commercial law point of view, the act of a business raising operating capital or other capital by borrowing. Most often, this refers to the issuance of a bond, debenture, or other debt security. In exchange for the landing of money, bond holders and others become creditors of the business and are entitled to the payment of interest in conventional banking for a given time period. In Islamic banking there are two major contracts in equity financing: Al- Musharakah (joint-venture profit-sharing) and Al-Mudharabah (trustee profit-sharing). Debt financing includes cost-plus transactions known as Al-Murabahah, leasing transactions known as Al-Ijarah and Al-Ijarah Wa Iqtina, deferred payment sale (Bai Muajjal), purchase with deferred delivery (Bay-al-Salam) and sale on order (Bay-al- Istisna) (Yusoff & Wilson, 2009). Therefore, the concepts of purchase and sale from the Islamic legal thought merely same with the conventional practiced. However they are defers from Islamic perspectives from the rules of Shari ah law which point out some limitations on the purchase and sale in their business. Some of the gaps are: (a) The business must be accordance to the Shari ah. Type of purchase and sale or business such as Riba base, gambling (casino), and liquor, and other business which not permitted with Shari ah are considered Haram and prohibited (Warde, I. 2000). 2

3 (b) The contract for this type of transaction must be free from Gharar (uncertainty). According to Shari ah law (Islam) prohibited any transaction which dealing with uncertainty and speculation. Such of uncertainty elements are sale of an unborn calf in its mother wombs, sale of fish in the river and others (Remali & Nor Azurah, 2014). Purchase and sale contract under Islamic law can be explain in two types, Bay-al Salam and Bay-al-Istisna. Thus, the following section will explain details the definition of this categories and some other important area which associates with Islamic commercial law. 2.0 DEFINITION OF BAY AL- SALAM Bay-al-Salam is also one of the basic conditions for the validity of sale in Shari ah: the commodity intended to be sold must be in the physical or constructive possession of the seller. 4 This condition has three implications: (a) This is an exception to the general rule, which prohibits trading in goods which do not exist at the time of sale. (b) The seller should have acquired ownership of that commodity. If the commodity exists but the seller does not own it, he cannot sell it to anybody. (c) Mere ownership is not enough. It should have come into the possession of the seller, either physically or constructively. If a seller owns a commodity, but he has not taken delivery of it himself or through an agent, he cannot sell it. The Shari ah allows Bay-al-Salam subject to certain conditions. The basic purpose of this type of sale is to meet the needs of small farmers who need money to grow their crops and feed their families up to the time of their harvest. After the prohibition of riba they were no longer allowed to take out usurious loans. They are therefore allowed to sell their agricultural products in advance. Bay-al-Salam is beneficial to the seller, because he receives the money in advance, and it is also beneficial to the buyer, since normally the price in Bay-al-Salam is lower than in on the-spot sales. The permissibility of Bay-al-Salam is an exception to the general rule that prohibits forward sales. Therefore, it is subject to some strict conditions. Among the main conditions of Bay-al-Salam are: (i) (ii) It is necessary for the validity of Bay-al-Salam that the buyer pays the price in full to the seller at the time of affecting the sale. This is necessary because in the absence of full payment by the buyer, it will be tantamount to a sale of debt, which is expressly prohibited. Moreover, the basic wisdom behind the permissibility of Bay-al-Salam is to fulfil the instant needs of the seller. If the price is not paid to him in full, the basic purpose of the transaction will be defeated (Yusoff & Wilson, 2004). Bay-al-Salam can be affected only in those commodities whose quality and quantity can be exactly specified. In other words, those things whose quality or quantity is not determined by the specification cannot be sold through the Al Rajhi Banking & Investment Corp, Instruments of Islamic Banking & Finance Salam, 3

4 (iii) contract of Bay-al-Salam. For example, precious stones, e.g. diamonds, cannot be sold on the basis of Bay-al-Salam, since each piece of diamond is normally different from any other, either in its quality or in its size or weight and thus exact specification is not generally possible. It is permissible to take out a mortgage and a guarantor on a Bay-al-Salam debt, in order to ensure that the seller carries out his obligation by delivering the commodity sold, for which he is liable on the due date. On the other hand, it is not permissible for the buyer of a Bay-al-Salam commodity to sell it before receiving it, because that is similar to the prohibited sale of debts before holding. It is known that the Bay-al-Salam commodity represents a liability debt to the seller and not an existing commodity (Yusoff & Wilson, 2006). 3.0 DEFINITION OF BAY AL- ISTISNA Bay-al-Istisna is a kind of sale in which a commodity is transacted before it comes into existence. This means that specific products/commodities are ordered to be manufactured for the purchaser. If the manufacturer undertakes to manufacture the goods for him, the transaction of Bay-al-Istisna comes into existence. However, it is necessary for the validity of Bay-al-Istisna that the price is fixed with the consent of the parties and that necessary specification of the commodity is fully settled between them. 5 In addition, the contract of Bay-al-Istisna imposes a moral obligation on the manufacturer to manufacture the goods, but before he starts the work, either one of the parties may cancel the contract after giving notice to the other. But after the manufacturer has started the work, the contract cannot be cancelled unilaterally. However, the party placing the order has the right to retract the order if the commodity does not conform to the specifications demanded. The areas in which Bay-al-Istisna is the mode of financing are the following: (a) Bay-al-Istisna can be used for providing the facility of financing in certain transactions, especially in the sector of house financing. For example, if the client has his own land and he seeks financing for the construction of a house, the financier may undertake to construct the house on that open land on the basis of Bay-al-Istisna. In addition, if the client has no land and he wants to purchase the land also, the financier may undertake to provide him with a constructed house on the specified piece of land (Yusoff & Wilson, 2005). (b) It is not necessary in Bay-al-Istisna that the price be paid in advance, nor is it necessary that it be paid at the time of delivery; rather, it may be deferred to any time according to the agreement of the parties. The time of payment may be fixed in whatever manner they wish. The payment may also be in instalments. On the other hand, it is not necessary that the financier himself construct the house. He can enter into a parallel contract of Bay-al-Istisna with a third party, 5 Bank Islam Malaysia Berhad, Instruments of Islamic Banking & Finance Istisna, and also from Al Rajhi Banking & Investment Corp, Instruments of Islamic Banking &Finance Istisna, 4

5 or may hire the services of a contractor. In both cases, he can calculate his cost and fix the price of Bay-al-Istisna with his client in a manner that may give him a reasonable profit over his cost. (c) The payment of instalments by the client may start in this case right from the day when the contract of Bay-al-Istisna is signed by the parties, and may continue during the construction of the house and after it is handed over to the client. In order to secure the payments of instalments, the bank, as security, may keep the title deeds to the house or land, or any other property, until the client pays the last instalment. The bank, in this case, will be responsible for the construction of the house in full conformity with the specifications detailed in the agreement (Yusoff & Wilson, 2009). (d) The instrument of Bay-al-Istisna may also be used for project financing on similar lines. If a client wants to install machinery in his factory, and the machinery needs to be manufactured, the financier may undertake to prepare the machinery through the contract of Bay-al-Istisna according to the aforesaid procedure. The same principles will be fully applicable to the construction of a building for the industry. 4.0 THE DIFFERENCES BETWEEN BAY-AL-SALAM AND BAY-AL-ISTISNA CONTRACT There are few things that can be highlighted to differentiate between Bay-al-Salam and Bay-al-Istisna contract. First thing first is in the payment. It is necessary for Bayal-Salam that the price be paid in advance, while this is not necessary for Bay-al-Istisna. The subject of Bay-al-Istisna is always a thing that needs to be manufactured, while Bay-al-Salam can be used whether it needs to be manufactured or not. Furthermore, in the contract of Bay-al-Istisna can be cancelled before the manufacturer starts the work, while the contract of Bay-al-Salam, once agreed upon, cannot be cancelled unilaterally. The time of delivery is an essential part of the sale in Al-Salam while it is not necessary in Bay-al-Istisna that the time of the delivery be fixed (Yusoff & Wilson, 2004). In addition, the buyer may stipulate in the Bay-al-Istisna contract that the commodity shall be made by a manufacturer or produced by a specific manufacturer, or manufactured from specific materials. This is not permitted in the case of a Bay-al- Salam sale. 5.0 THE SIMILARITIES BETWEEN BAY-AL-SALAM AND BAY-AL-ISTISNA CONTRACT Bay-al-Salam is a contract in which a seller undertakes to supply specific goods to the buyer at a future date in exchange of an advance price fully paid at the time of a contract. According the normal rule of the Shari ah, no sale can be effected unless the goods are in the existence and in ownership of the seller at the time of the bargain, but Bay-al- Salam sale is an exception given by the Holy prophet (pbuh) to the general rule, provided the goods are defined, price agreed and fully paid and the date of delivery is fixed (Yusoff & Wilson, 2004). Bay-al-Istisna is a purchase order contract where a buyer orders a seller or entrepreneur to manufacture an item according to specifications given in the purchase 5

6 contract to be delivered on a certain future date. The settlement of the purchase price is according to the agreement between the two parties. Here, there are a number of similarities between both contracts: First thing first in the riba involve, both contracts may not include direct riba, for instance through the unity of genus for the price and object of sale (e.g. rice for rice) with an increase in one of the two compensations (riba-al-fadl) or with deferment and increase (riba-al-nasiah). According to the Hadith, the commodity for which such trading is forbidden are the six, namely gold, silver, wheat, barley, dates and salt and ones that can be inferred to carry the same legal restriction. Bay-al-Salam and Bay-al- Istisna contracts involve sales of non-existing items, permitted to meet economic needs and based on common practice. Both contracts require full knowledge of the price in terms of genus, type, amount and characteristics, otherwise the contract would be considered defective due to ignorance. In terms of the price payment, Imam Malik allowed a deferment of the price payment for up to three (3) days, ruling that a payment within three days is legally equivalent to an immediate payment, since anything approximately equivalent to another inherits its legal status. The object of sale in both contracts (to be delivered or manufactured, respectively) must be well known to the buyer and seller in terms of its genus, type, amount and characteristics. Therefore, in both contracts, the object to be delivered is considered an object of sale which must be fully known to the contracting parties. In terms of financing potential, this means the extent to which a given contract can be regarded as a suitable means of financing. Bayal-Salam and Bay-al-Istisna can be regarded as a suitable means of financing. 6.0 THE CONCEPTS OF WAQF The term WAQF literally means confinement and prohibition. The legal meaning of WAQF, according to Imam Abu Hanifah, the the detention of a specific thing in the ownership of WQAF and the devoting of its profit or products in charity of poor or other good objects. However, in the opinion of Imam Abu Yusuf and Muhammad say: WAQF signifies the extinction of the Waqif s ownership in the thing dedicated and detention of all the thing in the implied ownership of Allah, in such a manner that its may revert to or be applied for the benefit of Mankind. RHE According to Bahaeddin Yediyildiz defines the WAQF as a system which comprises three elements, which is hayrat, akarat and WAQF. Hayrat, the plural form of hayr, means goodness and refers to the motivational factor behind vakif organization. Akarat refers to corpus and literrally means real estates implying revenue-generating sources, such as markets (bedestens, arastas, hans, etc), land, baths; and Waqf, in its narrow sense is the institutions providing services as comitted in the vakif deed such as madrasas, public kitchens (imarets), mosques, liberaries, etc. Islamic law puts several legal conditions on the process of establishing a WAQF. Therefore, a founder (called al-waqif or al-muhabbis in Arabic) must be of the capacity to enter into a contract. For this purpose the founder should have the following criteria: a) be an adult - is a human being that reached sexual maturity or in legal perspective adult is a person who has attained the age of maturity and is therefore regarded as independent, self-sufficient, and responsible; b) be sound of mind - refers to rationality and healthiness of the human mind, as opposed to insanity. A person is not considered sane anymore just if he/ she is irrational. 6

7 A sane mind is nowadays considered healthy both from its analytic, one called rational and emotional aspects. c) capable of handling financial affairs, and d) Not under interdiction of bankruptcy. Therefore, in general meaning WAQF means a holding a maal (an asset) and preventing its consumption for the purpose of repeatedly extracting its usufruct for the benefit of an objective representing righteousness and philanthropy, and WAQF also should be identified as the perpetual dedication of benefits of a valuable, the value of which is amortized subsequently, and its proceeds or revenue are later spent on welfare of the named beneficiaries. 7.0 WAQF CONCEPT FOR BAY-AL-ISTISNA AND BAY-AL-SALAM Bay-al-Istisna is somehow likely similar with the Bay-al-Salam another form of forward sale. Bay-al-Salam however applied to commodities, where the financial advances as sum of purchase price for agricultural commodities to be delivered in the future. This may apply to WAQF land if the land is use for agricultural activity. However, Bay-al-Istisna may use (1) between WAQF and developer, (2) between WAQF and a financer, and (3) between developer and financer for the development of WAQF land. Here, we can see that the first one is straight forward. The second is involving WAQF, the financer and the third party (developer or entrepreneur). The WAQF institutions inters into contract with financier, and the financier enters into the Bay-al-Istisna contract with a developer or entrepreneur. This is termed back to back or parallel Bay-al-Istisna. He can enter into a parallel contract of Bay-al-Istisna with a third party or hire a developer or entrepreneur. In both cases he can calculates his/ her fix his/ her cost or fix price of Bay-al-Istisna. The building will be the property of the financier. The WAQF institutions will buy the building from the financier after its completion (Usmani. M. T. 2002). An Bay-al-Istisna between a financier and a developer follow the Murabahah and Bay-al-Istisna contract. This can be said by the Simon Acher and Rifaat s proposal when the WAQF proposal allow financier and entrepreneur to construct a building on the WAQF land (Simon, A. et. al. 2002). Then the financier enter into an Istisna contract with a constructor or entrepreneur to provide the same to the order of the bank or owner that will deliver on the bank behalf or owner to the WQAF management. That above discussant can be show graphically as figure 1.1. Figure 1.1: Finance Arrangement under Bay-al-Istisna (Build and Transfer) basis (1) Majlis leases land to WH (3) (2) Developer Financier WAQF Holdings MAJLIS The developer transfer building to WAQF Holdings WH pays leases to Majlis 7

8 Following the completion of the construction and delivery of the building, either in the both ways, the financier deliver the said building said building to the WAQF, lease the building to WAQF institutions under the concept of Ijarah or in the case back to back Istisna and murabahah follow by Istisna. The amount will be a debt on the WAQF management that should be settles from the return of the expanded WAQF property. Its can be paid in monthly or annual installment. The installment should be less than the expected rental from the building. 8.0 CONCLUSION This study has founded that, there are some differences and similarities of Bay-al- Salam and Bay-al-Istisna contract in terms of the practicability, operation and condition. A Bay-al-Salam contract required exchange of an immediate price for deferred payments of sale, where the latter is established by description as a liability on the Bay-al-Salam seller. While, for Bay-al-Istisna is a contract between the buyer and the seller (entrepreneur) and the seller (entrepreneur) latter provide the raw materials. The object of the Bay-al-Salam does not exist at the contract session and its delivery is deferred to a definite future time period. Therefore, this study has given an overview about the resemblance and disparity between Bay-al-Salam and Bay-al-Istisna. Although it does not reflect the broad-spectrum of the concepts, but at least it contributes something important by adding more literature regarding these two types of contract. Further challenges for this contract are in the implication of Islamic banking and finance industry. From the above discussion shows that WAQF development project (government or semi government) can be finance through banks, developers, entrepreneurs, by way of WAQF institutions. The fundamental point from above discussion that the financing of building can be made through the operation of the WAQF system and Majlis. The important thing is the land hold by the Majlis would leases to the WAQF Holdings. Even through this study covered the basic area of both concepts, but at least, more or less give some additional idea and literature reviews for these two contracts sale. 8

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