الصيانة بين النظرية والتطبيق: الإجارة المنتهية بالتمليك نموذجًا (Maintenance in Theory and Practice: Al-Ijārah al-Muntahiyyah bi al-Tamlīk as a Case)

Author(s):  
بخت الرحمن عثماني بن عبد الحميد ◽  
عارف علي عارف ◽  
عزمان محمد نور

يركز البحث على أحكام الصيانة في الإجارة المنتهية بالتمليك، وهو بحثٌ تحليليٌ لأحكام الصيانة بين النظرية في الفقه الإسلامي والتطبيق المعاصر في العقد الذي تقوم به المصارف الإسلامية والمؤسسات المالية الإسلامية. وقصد الباحث من هذا البحث بيان مفهوم الصيانة وحكمها الشرعي في هذا العقد، ومن الذي يتحمل الصيانة المؤجر أو المستأجر؟ وهل يمكن اشتراطها على العميل فقط؟ وذلك لغرض الوصول إلى مدى التوافق بين النظرية والتطبيق العملي لأحكام الصيانة في هذا العقد في المصارف الإسلامية والمؤسسات المالية الإسلامية. وأهم النتائج التي توصل إليها الباحث هو أن للصيانة ثلاثة أنواع: نوعٌ من الصيانة تتجه إلى المؤجر، ولا يصح تحميلها على المستأجر لا شرعًا ولا تحمُّلًا لا عرفًا ولا شرطًا إلا عند تعديه أو تقصيره فيها، وهي الصيانة الأساسية، فهي كل ما يتعلق بذات العين المؤجرة ويتوقف عليه الانتفاع. ونوع ثاني من الصيانة ما يتجه إلى المستأجر، وهي الصيانة التشغيلية، فهي كل ما يتعلق باستيفاء المنافع والذي تحتاج إليه العين المؤجرة نتيجة استعمالها. ونوع ثالث من الصيانة ما لا يتجه إلى المؤجر ولا إلى المستأجر إلا حسب العرف وعوائد أهل البيئة وحسب تغير الزمان والمكان، وهي الصيانة العرفية. وهذا النوع من الصيانة لا تدخل في الصيانة الأساسية ولا في الصيانة التشغيلية بل هو تابع للعرف والبيئة، ولتغير الزمان والمكان. وأما الصيانة الأساسية والصيانة التشغيلية فلا دخل للعرف فيهما. الكلمات المفتاحيّة: الصيانة، الأساسية، التشغيلية، العرفية، الإجارة المنتهية بالتمليك، النظرية والتطبيق. Abstract The study is focusing on the ruling of maintenance (al-Ṣiyānah) in Al-Ijārah al-Muntahiyyah bi al-Tamlīk. It analytically studies the ruling in theory of Islamic Jurisprudence and in the contemporary practice in the contract applied by Islamic Banks and Islamic Financial Institutions. The study aims to explain the concept of the maintenance and its legislative rules in the contract, the responsibility of the leased asset—lessor or lessee? Is it permissible to impose it on the lessee only? This is to find out the extant of the compatibility between the theoretical and the practical implementations of the sharÊÑah ruling of maintenance in the ijÉrah contracts of Islamic Banks. The important result of the research conducted is that there are three types of maintenance (al-Ṣiyānah): The first type of al-Ṣiyānah pertains to the lessor only, and it is not permissible to be imposed on the lessee neither from the SharÊÑah or liability perspective, but in the case of fault or short coming from the lessee, and this is called major maintenance (al-Ṣiyānah al-Asāsiyyah). This type of al-Ṣiyānah denotes all such maintenance of the leased asset that is related to the essence of the leased asset on which the benefit depends. The second type of the al-Ṣiyānah pertains to the lessee only; this is called minor maintenance (al-Ṣiyānah al-Tashghīliyyah). This refers to all such things that are linked with the fulfilment of benefits and the operation of the leased asset. And the third type of the al-Ṣiyānah does not pertain to lessor or the lessee except because of custom of the time and circumstances. And this is called al-Ṣiyānah al-ʻUrfiyyah. This type of maintenance is not linked with major maintenance or with minor maintenance, but its ruling is according to the time and custom. Keywords: Maintenance, al-Ṣīyānah, al-Asāsiyyah, al-Tashghīliyyah, al-ʻUrfiyyah, Al-Ijārah al-Muntahiyyah bi al-Tamlīk, Theory, Practice. 

2020 ◽  
Vol 13 (2) ◽  
pp. 29
Author(s):  
Shujaat Saleem ◽  
Fadillah Mansor

This paper aims to explore whether the practices of Ijarah financing by Islamic banks in Malaysia are in line with the Accounting and Auditing Organization for Islamic Financial Institutions (AAOIFI) Shariah Standard No: (9) on Ijarah financing. Semi- structured interviews based on open-ended questionnaires were conducted, recorded verbatim, and transcribed for content analysis. Our study revealed flaws in the contemporary practice of Ijarah financing and indicated that it was slightly out of line with the AAOIFI Shariah standard. The study will not only help the Islamic banking industry of Malaysia to reduce, if not eliminate the gap between the practices of Bank Negara Malaysia (BNM) and AAOIFI Shariah standards pertaining to Ijarah financing but also create novel literature due to the fact that, no study has been undertaken to date, which analyzes the practices of Ijarah financing by Malaysian Islamic banks in the light of the AAOIFI Shariah standards.


2020 ◽  
Vol 8 (3) ◽  
pp. 74
Author(s):  
Abubakar Balarabe ◽  
Md. Faruk Abdullah

Islam is a way of life that seeks to protect the human being from financial harm through prohibiting riba, maysir, and gharar. Islamic credit card is one of the alternative banking products offered by Islamic financial institutions to replace the conventional credit card. The Islamic credit card was initially based on the Inah concept. However, this concept was criticized by both contemporary and classical Islamic jurists, especially in the Hambali, Maliki, and Hanafi school of thought. Therefore, some Islamic banks of Malaysia offer a better alternative, developing the credit card on the concept of ujrah, which is less ambiguous among Islamic scholars. This study will explore the background of Islamic credit card base on the concept of ujrah. It will then further discuss the justification for the permissibility of the concept. Finally, this paper will highlight the issues related to the practice of ujrah in Islamic credit card operations. The findings indicate that the credit cards based on ujrah (fee) are permitted from the Sharia perspective as long as they do not involve any element of riba (interest). However, it involves Shariah issues on its practice of ibra (rebate) and penalty charge. To fulfil the objective of the study, it will refer to the Quran, Hadith, classical Islamic jurisprudence, juristic opinion of Islamic scholars, Shariah standards of international Islamic standard-setting bodies, and other policy documents of the Islamic banks.


2019 ◽  
Vol 1 (1) ◽  
pp. 23-44
Author(s):  
M. Ridwan Setiawan ◽  
Rahmawati Rahmawati ◽  
Wahidin Wahidin

The fatwa of the DSN-MUI is the answer issued by the National Sharia Council-Indonesian Ulama Council (DSN-MUI) as an explanation of the sharia law for people who ask questions about problems in the field of Islamic economics. The goal is that sharia principles in the fatwa be implemented in contracts for Islamic Financial Institutions (LKS). However, public statements often arise that giving gifts to Islamic banks and conventional banks is the same as the scheme and method of giving. This study aims to see how the mechanism and suitability of DSN-MUI fatwa No: 86 / DSN-MUI / XII / 2012 concerning Prizes in Fundraising (Study at Bank Muamalat KCP Parepare). The results of the research can be stated that at Muamalat bank, KCP Parepare has two savings programs with prizes, the first is prizes with prizes, customers deposit funds in the amount set by the bank for a predetermined period of time, second savings plan with prizes, customers deposit money at the beginning of the amount of money that has been determined by saving each month in the amount determined by the bank, the greater the amount of money saved the greater the number of prizes received. In the DSN-MUI fatwa related to the awarding of prizes there are 3 provisions related to this, namely the first provision related to prizes, the two provisions relating to the determination of receipt of implemented prizes according to fatwa, third not the provisions concerning prizes in deposits of Third Party Funds (DPK) all points in this fatwa implemented specifically on the third point that reads should not be the norm (habit, 'urf), that the' urf or custom prohibited by DSN-MUI in the fatwa prize aims to avoid changing intentions from the customer, intention to save become the desire to get something without effort.


AL-TIJARY ◽  
2019 ◽  
Vol 4 (2) ◽  
pp. 95-108
Author(s):  
Yunisa Fitriana

sharia hedging/ hedging transactions based on DSN Fatwa No. 96 by using sharia commodity instruments is a new thing in Indonesia, so that more in-depth studies are needed to analyze the readiness of Islamic banks in implementing sharia hedging / hedging transactions on exchange rates based on DSN No. Fatwa. 96 for ‘aqd al-tahawwuth bi al-sil’ah (using sharia commodities).The research method used is a qualitative approach with survey and interview methods, based on (a) Total assets of Islamic Financial Institutions (LKS) / Sharia Business Units (UUS). (b) Availability of being a respondent. (c) Respondents know well the mechanism in the DSN Fatwa No. 96. The results of this study found that (1) Issuance of DSN 96 Fatwa for the third mechanism has not been applied by Islamic banking. (2) Regulators (BI, OJK and related regulators) have not been able to provide detailed regulations related to Islamic hedging / hedging. (3) Commodities that can be transacted by the third mechanism are limited to coal, gold, bauxite.


2020 ◽  
Vol 9 (1) ◽  
pp. 50-53

The study aims to examine the Shari’ah legality of whether pledgor or pledgee should take care of collateral (marhun) during the period of the loan. Moreover, the study seeks to provide possible applications for the pledge (rahn) and clarify Shari’ah rules for each application. Malaysian Islamic banks apply pledge products by offering loans (qardh hasan) to the customers and requesting gold assets as collateral against a loan. The banks charge safekeeping fees to keep the gold until the maturity date of the loan. This practice combines loan and sale contracts in a single transaction. Accordingly, the study seeks to evaluate this practice from an Islamic point of view. Islamic law categorizes loans under charity contracts while the sale is categorized under contracts of exchange (mu’awadhat). The nature of the two contracts is different. Therefore, the study examines categories that combine loans and contracts of exchange in one transaction. The results reveal that it is not permissible for the pledgee to charge fees higher than market fees for the keeping of collateral. Charging fees that are higher than the market price is considered riba. According to Shari’ah rules, any kind of benefit derived from a loan is riba and thus it is prohibited. However, charging fees that are comparable to the market price and cover the actual cost for safekeeping of collateral is permissible. According to Islamic Fiqh Academy resolutions and AAOIFI standards, Islamic banks may charge fees for safekeeping of gold collateral considering that fees should be to the market fees and should only cover actual expenses.


2020 ◽  
Vol 1 (1) ◽  
pp. 88-102
Author(s):  
Ahmad Maulidizen

ABSTRACTIslamic banking in Indonesia has experienced significant growth, including assets, financing providedand the number of customers. Murābaḥah is the sale and purchase of goods at the original price with theagreed-upon profit. In murābaḥah the seller must tell the cost of the product he buys and determine anadditional level of profit. This research is a library research about the murābaḥah contract according tomuamalah fiqh and its application in modern Islamic financial institutions. Methods of collecting data indocumentation and various sources related to the murābaḥah contract are then analyzed inductively anddeductively. The results of the study are the murābaḥah foundation is the principle of buying and sellingwith a deferred payment system. Murābaḥah, as used in Sharia banking, is based on two main elements,namely the purchase price and related costs, and the agreement on mark-up (profit). Islamic banks adoptmurābaḥah to provide short-term financing to customers for the purchase of goods even though thecustomer does not have the money to pay. The murābaḥah financing portfolio in Islamic banks reaches 70-80%, but in practice there have never been any problems, including; collateral which is a problem of fiqh,risk dependency as a problem of the bank, bankruptcy and delay in payment are the problems of customers,and profits are too high, namely the problem of coming from the community. Therefore, Islamic banks mustmake improvements in the implementation to be in accordance with Sharia.Keyword : Murābaḥah, Financing Instruments, Modern Islamic Financing


2020 ◽  
pp. 429-442
Author(s):  
Devi Megawati

This study aims to understand the role of Sharia Supervisors in the private Zakat Institution (LAZ) as well as other aspects of sharia compliance, such as Zakat fatwa on the perspective of Zakat officers. According to Decree of the Minister of Religion Number 333 / 2015 that LAZ as register must have a sharia supervisor. Sharia compliance of an institution could rely on the role of the sharia supervisory board (SSB). Some literature discussing this topic is still dominated study on Islamic financial institutions (IFIs), especially in Islamic Banks. Therefore this article will contribute to the body of knowledge, especially in the zakat literature. Data were gathered from five presiding officers of private zakat institutions in one province in Indonesia which consists of three presiding officers from provincial LAZ representative and two presiding officers from LAZ district. The study found that Sharia compliance in LAZ had many weaknesses such as lack of sharia control by sharia supervisors, a member of the sharia supervisory board who does not follow the latest issues about Zakat or the absence of competency requirements to be a sharia supervisor at LAZ and also did not make Zakat fatwa issued by MUI as the primary reference by zakat officer. This information will be useful for stakeholders, including supervisory authorities and regulators.


2020 ◽  
Vol ahead-of-print (ahead-of-print) ◽  
Author(s):  
Hassanudin Mohd Thas Thaker ◽  
Ahmad Khaliq ◽  
Mohamed Asmy Bin Mohd Thas Thaker ◽  
Anwar Bin Allah Pitchay ◽  
K. Chandra Sakaran

Purpose The purpose of this paper is to examine the factor persuading the acceptance of Islamic pawn broking (Ar-Rahnu) among Islamic bank customers. Design/methodology/approach The authors collected the data using a self-administered questionnaire design and analysed using SPSS Statistics and smart partial least square. The study is restricted to only respondents who are based in the area of Klang Valley (Selangor and Kuala Lumpur), as these two areas have a larger number of Islamic banks and a decent number of Islamic banks’ clients. A total of 381 respondents’ responses are used for this study, and the constructs involved for analysis purpose are affect, social factor, facilitating conditions, perceived financial benefits and perceived risk constructs. Findings The finding suggests a significant positive association for social factor and perceived risk, while negative association learnt for affect on acceptance of Ar-Rahnu financing. On the same note, the facilitating condition and perceived financial benefit are found insignificantly related. Practical implications The findings generated from this study are expected to enrich the literature on the body of knowledge, as it has served to broaden the understanding of the Ar-Rahnu acceptance level in Malaysia. As mentioned, there is limited literature available using this type of financing. Existing studies focus too much on conventional financing products such as personal financing, credit card, short-term loan and many others. Less attention is given to Ar-Rahnu financing. Thus, this study expected to add value to the literature available in the context of Islamic pawn broking business. Moreover, the findings of this study will be very helpful for the Islamic financial institutions to find the best way to retain Ar-Rahnu clients and encourage more client to choose Ar-Rahnu as a mode of financing. Originality/value This study owns greater potential to assist Islamic financial institutions to discover the best techniques to retain and encourage the grander number of clients for Ar-Rahnu as a mode of financing.


Author(s):  
Yosra Mnif ◽  
Marwa Tahari

Purpose This study aims to examine the effect of the main corporate governance characteristics on compliance with accounting and auditing organisation for Islamic financial institutions’ (AAOIFI) governance standards’ (GSs) disclosure requirements by Islamic banks (IB) that adopt AAOIFIs’ standards in Bahrain, Qatar, Jordan, Oman, Syria, Sudan, Palestine and Yemen. Design/methodology/approach The sample consists of 486 bank-year observations from 2009 to 2017. Findings The findings reveal that compliance with AAOIFIs’ GSs’ disclosure requirements is positively influenced by the audit committee (AC) independence, AC’s accounting and financial expertise and industry expertise, auditor industry specialisation, IB’s size and IB’s listing status. On the other hand, it is negatively influenced by the ownership concentration. Research limitations/implications This study has only examined compliance with AAOIFI’s GSs’ disclosure requirements and has focussed on one major sector of the Islamic financial institutions (which is IB). Practical implications The findings are useful for various groups of preparers and users of IBs’ annual reports such as academics and researchers, accountants, management of IBs and some organisations. Originality/value While the study of the AAOIFIs’ standards has grown contemporary with considerable contributions from scholars, however, the majority of these studies are descriptive in nature. Indeed, the existing literature that has explored the determinants of compliance with AAOIFI’s standards is in the early research stage. To the best of the knowledge, there is a paucity of empirical research testing this issue.


2010 ◽  
Vol 13 (1) ◽  
pp. 69-77 ◽  
Author(s):  
Jonathan Ercanbrack

This article examines the unique risks associated with Islamic financial institutions and the secular state's reticence to directly regulate their religious dimension. It argues that the state's method of regulating the Islamic financial industry ignores special reputational risks associated with the religious and cultural distinctiveness of Islamic banks.


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