WAQF MANAGEMENT IN INDONESIA: BETWEEN IDEALITY AND REALITY

2019 ◽  
Vol 1 (1) ◽  
Author(s):  
Mochamad Ae Dunuraen
Keyword(s):  
Islamic Law ◽  
Third Party ◽  
Great Hope ◽  
The Law

Waqf is a public asset, which is a great hope for the community to be managed and utilized optimally both materially and spiritually. But waqf land always brings its own problems, especially in utilization that is always not optimal. Such as the eviction of buried land, mosques, and the re-occupation of land by heirs, the reality of life shows that there are still many cases of waqf disputes that arise in life, such as not registering waqf, waqf assets that are not maintained or neglected, switching waqf to third party in a way against the law, withdrawal of the land that has been represented, denial of waqf pledges by heirs, and many others. Management of waqf in accordance with the Islamic law, namely may sell waqf property, or exchange it, replace it, move the waqf property and use the proceeds of the sale to be used again for waqf interests. This ability, based on the reason that property waqf remains maslahah, in accordance with the purpose of waqf, or to get greater / better benefits for the benefit of humans in general.

scholarly journals LEGAL STATUS OF DOWRIES PROVISION BY THIRD PARTIES

2019 ◽  
Vol 5 (2) ◽  
pp. 447-463
Author(s):  
Hazar Kusmayanti ◽  
Djanuardi Djanuardi ◽  
Nurmeida Hadiyanti ◽  
Deviana Yuanitasari
Keyword(s):  
Legal Status ◽  
Islamic Law ◽  
Third Parties ◽  
Third Party ◽  
Legal Analysis ◽  
Legal Validity ◽  
Legal Principles ◽  
Marriage Contract ◽  
The Law

This article discusses the issue of the legal validity of marriage contract in the case dowry is paid by a third party.  Legal analysis will be performed on the legal principles and regulations found in The Law Number 1 Year 1974 on Marriage, The Compilation of Islamic Law and sources in Islamic Law .  One important finding is does not forbid the payment of dowry by a third party and that this practice does not affect the validity of the marriage contract.

TINJAUAN HUKUM FIKIH TERHADAP HADIAH TABUNGAN DAN GIRO DARI BANK SYARI'AH

ALQALAM ◽  
2013 ◽  
Vol 30 (1) ◽  
pp. 1
Author(s):  
Muhammad Nadratuzzaman Hosen ◽  
Deden Misbahudin Muayyad
Keyword(s):  
Islamic Law ◽  
Islamic Banks ◽  
Islamic Bank ◽  
Literature Reviews ◽  
The Gift ◽  
The Status ◽  
The Law

This article explains about the Islamic law of gift from Bank to customers related to saving and gyro accounts of Islamic Bank. The Islamic Banks give gift directly  and  indirectly  to  new  ettstomers  and  old  customers  through drawing  (qur'ah) or lottery and non-drawing. There are disputes (ikhtilaf) among Islamic Law  Experts (Fuqaha’) about the status of law when Islamic Banks give the gift. Hanafi and  Syafi'i  Schools  of thought  opined  that  the gift  can  be given  to  the customers as long as there is no agreement between bank and costomers meanwhile the banks still have a debt to consumers, this is permissible. Maliki and Hanbali schools opined that the gift is not permissible during the time of borrowing and lending. Majority Islamic Exsperts allow to give gift after banks have already paid­ back the debt to consumers as long as there is no agreement between bank and cusiomers, but Maliki School do not allow lo give gift at that condition. Also, for giving gift should free from gambling or elements of gambling (muqamarah).  The method of this article is using literature reviews from classical Islamic Law's books and contemporary Islamic law's books related to drawing or lottery and gambling, meanwhile the aims if this mticle are to investigate the law status if gift from bank to new customers and old customers with direct and indirect ways.   Keywords : gift, saving and gyro accounts, disputes, drawing and elements of gambling

NIKAH SIRI DALAM TINJAUAN HUKUM TEORITIS DAN SOSIOLOGI HUKUM ISLAM INDONESIA

2018 ◽  
Vol 11 (1) ◽  
pp. 60-78
Author(s):  
Aidil Alfin ◽  
Busyro Busyro
Keyword(s):  
Significant Influence ◽  
Islamic Law ◽  
Muslim Community ◽  
Muslim Society ◽  
The Law

The differences of laws in marriage registration have generated argumentative conflicts among the ulama. Some of them agree and the others disagree. Ulama who agree say that proscribing secretly marriage (nikah siri) is in accordance to Islamic law. Even though the regulation about marriage registration has been written in The Indonesian Act No. 1 of 1974 on Marriage and in the Compilation of Islamic Law in Indonesian, the practice of secret marriage is still existed among Indonesian Muslim society. They base their practices on what some of local ShafiiyahUlema say all the time that this kind of marriage is in accordance to shari’ah. It is common to say that Shafi’ischool of law is the largest shari’ahschool of law in Indonesia. In the sociology of Islamic law, most of the scholars in Indonesia who adhere to the Shafi'i school and also most of the Indonesian Muslim community adhere to the same school, may have a significant influence on the constraints of reform of Islamic law related to the registration of marriages in particular and other matters about marriage in general contained in the Law No. 1 of 1974 and the Compilation of Islamic Law in Indonesia.

Hukum Perubahan Status Harta Benda Wakaf: Studi Kasus Perubahan Status Kepemilikan Tanah Wakaf di Desa Keniten Kecamatan Kedungbanteng Kabupaten Banyumas

2020 ◽  
Vol 14 (2) ◽  
pp. 239-250
Author(s):  
Sarmo Sarmo
Keyword(s):  
Government Regulation ◽  
Islamic Law ◽  
Field Research ◽  
The Law

This article discusses the practice of changing waqf for socio-educational purposes. The jurists of the fiqh schools argue over the permissibility of exchanging waqf land. As a country where the majority of the population is Muslim, Indonesia has made the guidelines for waqf which are stated in the law. No. 41 of 2004 concerning Waqf, Government Regulation Number 42 of 2006 concerning the implementation of law number 41 of 2004, and the Compilation of Islamic Law in Indonesia. This study is field research conducted in Keniten Village, Kedungbanteng District, Banyumas Regency. This study concluded that the exchange of waqf land in this village was in accordance with the purpose of the waqf and in accordance with the law. No. 41 of 2004 Article 41 paragraph (3). The process of changing donated land for TK Diponegoro 136 is in accordance with Government Regulation Number 42 of 2006 concerning the implementation of law number 41 of 2004. Meanwhile, the relation of Islamic law to the exchange of waqf land in Keniten Village, Kedungbanteng District, Banyumas Regency is debated in accordance with the rules used by each jurisprudence school. Referring to the argument of jalb al-maṣāliḥ wa dar 'al-mafāsid, the exchange of waqf land in Keniten Village, Kedungbanteng District, Banyumas Regency is not against Islamic law because it brings more benefits.

Pembagian Harta Waris dalam Tradisi Masyarakat Muslim di Gorontalo

2019 ◽  
Vol 13 (2) ◽  
pp. 187-202
Author(s):  
Hamid Pongoliu
Keyword(s):  
Islamic Law ◽  
Sharia Law ◽  
The Will ◽  
The Law

Gorontalo has a customary principle derived from sharia law, and the sharia law is sourced from the Qur'an, hadith, ijmak and qiyas (adati-hula'a to syara'a, syara'a hula'a to Kitabi), which should reflect the existence of the implementation of the distribution of inheritance in Islam in the Gorontalo community. This customary principle can be a source of law if it is a rational act, not immorality, done always repeatedly, does not bring harm and does not conflict with the law of sharak. But in reality there is the implementation of inheritance that violates Islamic law, namely the distribution by way of deliberation, the determination of the amount of heirs equally, the delay in the distribution of inheritance, wills with houses given to girls, wills not to distribute inheritance, distribution of assets it depends on the will of the heir and the delay in the distribution of inheritance on the grounds that one of the parents is still alive. The distribution by deliberation and determination of the amount of the portion for each heir are equally acceptable as long as they follow the guidelines of the Compilation of Islamic Law article 183 and the concept of takharruj which was previously preceded by the Shari'a division. After the heirs know the size of the portion, then they may agree to share it in their own way or leave the inheritance according to Shari'a and agree to give to each other with other heirs.

Relaxations of Contractual Privity and the Need for Third Party Rights in Chinese Contract Law

2018 ◽  
Author(s):  
Chen Lei
Keyword(s):  
Direct Action ◽  
Contract Law ◽  
Third Party ◽  
Chinese Law ◽  
The Third ◽  
Right Of Action ◽  
The Law ◽  
The Third Party ◽  
The Right

This chapter examines the position of third party beneficiaries in Chinese law. Article 64 of the Chinese Contract Law states that where a contract for the benefit of a third party is breached, the debtor is liable to the creditor. The author regards this as leaving unanswered the question of whether the thirdparty has a right of direct action against the debtor. One view regards the third party as having the right to sue for the benefit although this right was ultimately excluded from the law. Another view, supported by the Supreme People’s Court, is that Article 64 does not provide a right of action for a third party and merely prescribes performance in ‘incidental’ third party contracts. The third view is that there is a third party right of action in cases of ‘genuine’ third party contracts but courts are unlikely to recognize a third party action where the contract merely purports to confer a benefit on the third party.

Formation of Contract and Third Parties in Cambodia

2018 ◽  
Author(s):  
Ly Tayseng
Keyword(s):  
Academic Writing ◽  
Case Law ◽  
Civil Code ◽  
Third Parties ◽  
Third Party ◽  
The Third ◽  
Contract Formation ◽  
The Law ◽  
The Right ◽  
Formal Requirements

This chapter gives an overview of the law on contract formation and third party beneficiaries in Cambodia. Much of the discussion is tentative since the new Cambodian Civil Code only entered into force from 21 December 2011 and there is little case law and academic writing fleshing out its provisions. The Code owes much to the Japanese Civil Code of 1898 and, like the latter, does not have a requirement of consideration and seldom imposes formal requirements but there are a few statutory exceptions from the principle of freedom from form. For a binding contract, the agreement of the parties is required and the offer must be made with the intention to create a legally binding obligation and becomes effective once it reaches the offeree. The new Code explicitly provides that the parties to the contract may agree to confer a right arising under the contract upon a third party. This right accrues directly from their agreement; it is not required that the third party declare its intention to accept the right.

Contracts for the Benefit of Third Parties in Japan

2018 ◽  
Author(s):  
Masami Okino
Keyword(s):  
Case Analysis ◽  
Case Law ◽  
Contract Law ◽  
Civil Code ◽  
Third Parties ◽  
Third Party ◽  
German Model ◽  
Recent Debate ◽  
The Law

This chapter discusses the law on third party beneficiaries in Japan; mostly characterized by adherence to the German model that still bears an imprint on Japanese contract law. Thus, there is neither a doctrine of consideration nor any other justification for a general doctrine of privity, and contracts for the benefit of third parties are generally enforceable as a matter of course. Whether an enforceable right on the part of a third party is created is simply a matter of interpretation of the contract which is always made on a case-by-case analysis but there are a number of typical scenarios where the courts normally find the existence (or non-existence) of a contract for the benefit of a third party. In the recent debate on reform of Japanese contract law, wide-ranging suggestions were made for revision of the provisions on contracts for the benefit of third parties in the Japanese Civil Code. However, it turned out that reform in this area was confined to a very limited codification of established case law.

Maxims

2019 ◽  
pp. 654-669
Author(s):  
Donald R. Davis
Keyword(s):  
Islamic Law ◽  
Legal Interpretation ◽  
Legal Practice ◽  
Moral Foundation ◽  
Legal Principles ◽  
Legal Traditions ◽  
The World ◽  
The Law

This chapter examines the history and use of maxims in legal traditions from several areas of the world. A comparison of legal maxims in Roman, Hindu, Jewish, and Islamic law shows that maxims function both as a basic tools for legal interpretation and as distillations of substantive legal principles applicable to many cases. Maxims are characterized by their unquestionable character, even though it is often easy to demonstrate contradictions between them. As a result, legal maxims seem linked to the recurrent desire for law to have a moral foundation. Although maxims have lost their purchase in most contemporary jurisprudence and legal practice, categories such as “canons of construction,” “legal principles,” and “super precedents” all show similarities to the brief and limited collections of maxims in older legal traditions. The search for core ideas underlying the law thus continues under different names.

scholarly journals Selling international law enforcement: Elite justifications and public values

2020 ◽  
Vol 7 (3) ◽  
pp. 205316802095678
Author(s):  
Melissa M. Lee ◽  
Lauren Prather
Keyword(s):  
Law Enforcement ◽  
International Law ◽  
Public Support ◽  
International Order ◽  
Third Party ◽  
Public Values ◽  
Norm Enforcement ◽  
The Usa ◽  
The Law ◽  
Order Increase

International law enforcement is an understudied but indispensable factor for maintaining the international order. We study the effectiveness of elite justifications in building coalitions supporting the enforcement of violations of the law against territorial seizures. Using survey experiments fielded in the USA and Australia, we find that the effectiveness of two common justifications for enforcement—the illegality of a country’s actions, and the consequences of those actions for international order—increase support for enforcement and do so independently of two key public values: ideology and interpersonal norm enforcement. These results imply elites can build a broad coalition of support by using multiple justifications. Our results, however, highlight the tepidness of public support, suggesting limits to elite rhetoric. This study contributes to the scholarship on international law by showing how the public, typically considered a mechanism for generating compliance within states, can impede or facilitate third-party enforcement of the law between states.

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