ESSENTIAL SHARIAH AND FIQH RULINGS IN ISLAMIC COMMERCIAL CONTRACTS. By: Assoc. Prof Dr. Azman bin Mohd Noor

Transcription

1 ESSENTIAL SHARIAH AND FIQH RULINGS IN ISLAMIC COMMERCIAL CONTRACTS By: Assoc. Prof Dr. Azman bin Mohd Noor 1

2 CLASIFICATION OF CONTRACTS Bai Murabahah (Mark-Up Sale) Bai Istisna (Manufacturing Sale) Exchange Based (Mu awadat) Bai al Musawamah (Ordinary Sale) Bai al Salam Bai Tawarruq (Monetisation) Ijarah (Lease) Contracts Charity Based (Tabarru at) Hibah (Gift) Wadi ah (Deposit) Waiving (Isqatat) Ibra (Rebate) Partnership (Ishtirak) Mudharabah Musharakah

3 PILLARS OF COMMERCIAL CONTRACTS Legal relationship created by the conjunction of two declarations, from which flow legal consequences with regard to the subject matter. See Barbati, Al-Inayah ala Fath al-qadir : Definition defines the essential element (rukn) of a contract: 1. Form of Contract 2. Subject Matter 3. Contracting Parties Offer (Ijab) Acceptance (Qabul) Asset (e.g. under sale) Price (e.g. under sale) Seller (e.g. under sale) Buyer (e.g. under sale) Essential elements are to be met completely so as to qualify a contract to be assigned with its prescribed legal effects e.g. transfer of ownership and obligation to pay the price or to deliver the subject matter.

4 1. VERBAL (Lisan) 1. SIGHAH (FORMS) OF CONTRACT An expression made by the contracting parties to declare their inner will to undertake a contract and thereafter be bound by certain obligations. This is manifested in an offer (ijab) made by an offeror and acceptance (qabul) made by an offeree. Original form of aqad 2. WRITTEN (Kitabah) 3. BY DEED AND WELL KNOWN SIGNS Recommended when a debt is involved. Permitted where the items sold does not cost a lot of money. Known as bai al-ta ati. O believers! When you contract a debt for a fixed period, write it down. Let a scribe write in down in justice between you. Let not the scribe refuse to write, as Allah has taught him (Surah al-baqarah: Verse 282)

5 2. SUBJECT MATTER OF THE CONTRACT Refers to the contracted object upon which the legal rulings and effects of the contracts are manifested. E.g. the subject matter of sale and price under Murabahah sale and the leased asset and rental payment under Ijarah. Conditions: 1. Existence of the subject at the time of the conclusion of the contract A contract should be effected on a non-existent object or something whose existence in the future is impossible. 2. Precise determination of the subject matter Any form of serious or major ignorance and uncertainty in the subject matter will render the contract void. 3. Certainty of delivery of the subject matter 4. Permissibility of the subject matter

6 3. CONTRACTING PARTIES Conditions: Has a legal capacity (ahliyyah) that render him competent (salih) to offer or to accept an offer in a contract. 1.Ahliyyah Al-Wujub Receptive Legal competency that establishes his right for himself and imposes obligations on him. 2.Ahliyyah Al-Ada Legal capacity of a person which enables him to execute duties in a way that is recognised by Shariah.

7 There are three types of sale by reference to the availability of the subject matter of the sale at the time of the contract: No Type Price Goods Remark 1 Cash Present at time of contract Present at time of contract Common Type 2 Credit Deferred at the agreed period of time Present at time of contract Deferred payment sale 3 Salam / Istisna Present at time of contract Deferred at the agreed period of time Exception of the general rules of a sale contract 7

8 Riba Gharar, (uncertainty) Maisir (gambling) Other Prohibition: Combining two contracts in one, combining a loan and a sale, producing and selling impure (non-halal) goods, etc.

9 Does Master Agreement constitute a contract Pre signed offer by customer Terms and Conditions are not in line with nature and substance of contract The Agency contract and the Sale of wakil to himself Inter conditionality, ex. Inah. Combining two contracts in one, ex. HP. Stand alone contracts ex. Parallel istisna, kafalah, safe keeping for pawn broking.

10 Commercial contracts; fees vs Selling price. Types of fees: Controversial, ex. Commitment fees, facility fee, participation fee in club financing. Permissible: Against service rendered like Wakalah Considerable: Which is in favour of both bank and customers Credit worthiness

11 1. Contracting parties and contractual relation 2. Definitions of terms. 3. Ibra /Rebate Clause. Ex. as required by authority. See new Murabaha PD. 4. Governing law clause 5. Presence of conventional terms like interest, loan, acts of God etc. 6. Prices must be known and agreed. Difference between investment and sale based contracts

12 Who will bear the related cost, ex. stamping. Event of default and enforcement of security. Applicability of Put and call option to some financing structures ex.ijarah. A promise/undertaking should not create indebtedness. Purchase undertaking.

13 Taking consideration above points and issues in drafting legal docs are crucial to avoid non Shariah compliance risks. Thank you