scholarly journals Implementasi Akad Ijarah Muntahiya Bi Al-Tamlik (IMBT) Perspektif Fatwa DSN-MUI Nomor 27 Tahun 2002 & Hukum Islam

2020 ◽  
Vol 2 (2) ◽  
pp. 153-181
Author(s):  
Jamaluddin
Keyword(s):  
Financial Services ◽  
Islamic Law ◽  
Scientific Paper ◽  
Islamic Banking ◽  
Legal Certainty ◽  
Legal Norms ◽  
Freedom Of Contract ◽  
Bank Regulations ◽  
Unwritten Law ◽  
Legal Consequences

The Ijarah Muntahiya bi al-Tamlik (IMBT) contract is a lease agreement that ends with the transfer of property rights by means of sale and purchase (grant) at the end of the lease period. In the perspective of Islamic law, the IMBT contract is in accordance with the principles, pillars, and some terms of the contract. Unfulfilled contract conditions, namely the requirement for legal certainty. Meanwhile, in the perspective of the DSN-MUI Fatwa Number 27/2002 and Islamic Law, the IMBT agreement is an anonymous agreement that arises from the existence of the principle of freedom of contract. The IMBT contract is in accordance with the terms and elements of the agreement. IMBT legal consequences are rights and obligations. This scientific paper will examine the normative and applicable aspects of law. Legal norms that are included in the realm of unwritten law in the context of laws and regulations in Indonesia concerning Sharia Economics are DSN-MUI fatwas, especially regarding IMBT which has been perceived as a national law, (Law Number 21 of 2008, concerning Islamic Banking), Bank Regulations Indonesia (BI), the Financial Services Authority (OJK) and Sharia Financial Institutions (KLS) as an effort to apply the law in an applicative manner.  

scholarly journals Oral Contract on the Sale and Purchase Transactions in the Traditional Market of Palangka Raya City

2020 ◽  
Vol 6 (2) ◽  
pp. 173-190
Author(s):  
Muzalifah Muzalifah ◽  
Ali Sodiqin
Keyword(s):  
Qualitative Research ◽  
Local Community ◽  
Islamic Law ◽  
Civil Law ◽  
Phenomenological Approach ◽  
Contract Law ◽  
Legal Certainty ◽  
Legal Norms ◽  
Freedom Of Contract ◽  
Traditional Market

The application of an oral contract in buying and selling transactions in Palangka Raya City is a form of contract adopted from Banjar culture. Even traditional market players in Palangka Raya City, in particular, interpret the oral contract as something that is very principle, so that they consider a contract invalid if it is not stated verbally. This article explores the question of why the oral contract in buying and selling in Palangka Raya City is still being applied and how the oral contract law is in buying and selling transactions in Palangka Raya City. This research is qualitative research with a phenomenological approach. This study found that the application of oral contracts in buying and selling transactions in Palangka Raya City originated from the habits of Banjar tribe traders who trade in Palangka Raya City. This habit, then, develops into the habit of the local community, so it becomes a necessity to be implemented. The law of the oral contract in the transaction is valid in terms of Islamic law and civil law because it fulfills the requirements and is in harmony with the contract in buying and selling and is carried out voluntarily, is based on the principle of freedom of contract. There is a balance of achievement, and has legal certainty so that it binds both parties. The existence of this oral contract shows the legitimacy of legal norms, religious norms, and customary norms.

ASAS KEPASTIAN HUKUM DAN ASAS KEBEBASAN BERKONTRAK SEBAGAI PERTIMBANGAN UTAMA DALAM PENYELESAIAN SENGKETA PERBANKAN SYARIAH (Kajian Yuridis Putusan MK Nomor 93/PUU-X/2012)

2018 ◽  
Vol 3 (1) ◽  
pp. 69
Author(s):  
Edi Hudiata
Keyword(s):  
Dispute Resolution ◽  
Judicial Review ◽  
Alternative Dispute Resolution ◽  
Contract Law ◽  
Islamic Banking ◽  
Constitutional Court ◽  
Legal Certainty ◽  
Ideal Norm ◽  
Freedom Of Contract ◽  
Binding Force

Since the verdict of the Constitutional Court (MK) Number 93/PUU-X/2012 pronounced on Thursday, August 29, 2013, concerning the judicial review of Law No. 21 of 2008 on Islamic Banking, it is no longer dualism dispute resolution. The verdict as well as strengthen the jurisdiction of Religious Court to resolve Islamic banking disputes. In consideration of the judges, judges agreed stating that Article 55 paragraph (2) and (3) of Law No. 21 of 2008 which is an ideal norm, contains no constitutional problems. The problem is the explanation of the constitutional article 55 paragraph (2) of the Act. The emergence of the Constitutional Court verdict No. 93/PUU-X/2012 which substantially states that the explanation of Article 55 paragraph (2) of Law No. 21 of 2008 does not have binding force, basically does not violate the principle of freedom of contract which is common in contract law. The parties are allowed to make a dispute resolution agreement out of religious court based on provisions as Act No. 30 of 1999 on Arbitration and Alternative Dispute Resolution. Keywords: dispute resolution, legal certainty and the principle of freedom of contract

scholarly journals Legal Consequences for the Execution of Foreclosed Collateral (AYDA), Both for the Ownership of Collateral and for the Bank

2019 ◽  
Vol 6 (10) ◽  
pp. 124
Author(s):  
Defrianta Sukirman ◽  
Kurnia Warman ◽  
Ulfanora Ulfanora
Keyword(s):  
Low Income ◽  
Financial Services ◽  
Financial Institution ◽  
Islamic Banking ◽  
Minimum Level ◽  
Legal Risk ◽  
Legal Risks ◽  
The Republic ◽  
Legal Sociology ◽  
Legal Consequences

As a sharia financial institution that carries out the intermediation function, Islamic banking has a risk of financing problems. This problematic financing does not only have an impact on the low income as a business institution, and ultimately results in the soundness of the bank. Settlement of problem financing is always sought in an efficient and effective way, with a minimum level of legal risk. This settlement effort is certainly inseparable from the provisions of the Islamic banking law, the the mortgages Act and the regulations of the financial services authority. One of the efforts to resolve the problematic financing allowed by the sharia banking law, and the regulation of the financial services authority is the Foreclosed Collateral (AYDA), even though this effort is contrary to the provisions of the mortgages Act. The problems in this thesis are four, namely first, the process of binding financing that is burdened with mortgagerights at PT. Bank Syariah Bukopin, Bukittinggi Branch. Secondly, the debt settlement process in financing encumbered with Foreclosed Collateral(AYDA) at PT. Bank Syariah Bukopin, Bukittinggi Branch. Third, concerning the legal consequences of the Foreclosed Collateral (AYDA), both for the ownership of collateral and for the Bank. Fourth, regarding the realization of the sale of Foreclosed Collateral (AYDA). This thesis research uses a sociological juridical research method, which moves from the existence of norm conflicts between laws and regulations related to efforts to resolve problematic financing by means of Foreclosed Collateral (AYDA), including its implementation at PT. Bank Syariah Bukopin, Bukittinggi Branch. The approach in legal sociology research, using the legislative approach and implementation practices, is carried out by reviewing and analyzing regulations regarding AYDA and implementation and the legal consequences of AYDA implementation. The results of the study indicate that the implementation of the AYDA is contrary to the mortgages Act and has legal risks in the form of null and void. For this reason, it is recommended that the implementation of the AYDA be avoided and steps taken to adjust the applicable provisions. This is to avoid not only legal risk for banks and customers as executors of existing regulations, but also to ensure the certainty and effectiveness of the laws that apply in the Republic of Indonesia.

scholarly journals WANPRESTASI TERHADAP AKTA PENGAKUAN UTANG DIBAWAH TANGAN DENGAN JAMINAN SERTIFIKAT HAK MILIK ATAS TANAH DITINJAU DARI PASAL 12 UNDANG-UNDANG NOMOR 4 TAHUN 1996 TENTANG HAK TANGGUNGAN ( Analisis Putusan Kasasi Nomor 837 K/Pdt/2019 )

2020 ◽  
Vol 3 (1) ◽  
pp. 105
Author(s):  
Aria Dimas Harapan ◽  
Andi Safira Yan Istiany
Keyword(s):  
Research Method ◽  
Court Decisions ◽  
Legal Certainty ◽  
Legal Norms ◽  
Civil Case ◽  
Sense Of Security ◽  
Ratio Decidendi ◽  
Credit Agreement ◽  
Case Number ◽  
Legal Consequences

Starting from the need for capital, in practice some people are reluctant to make credit with banks, because the process is considered difficult, and too convoluted. Therefore, some people prefer to borrow a certain amount of money from individuals or what is better known as debt or credit. Talking about the debt and credit agreement, it will be closely related to collateral because every creditor needs a sense of security for the funds he lends. The author's research is made to examine and find out what efforts can be made if there is default in an underhand debt acknowledgment that guarantees the title of title to land without being preceded by a principal agreement, as well as the judge's consideration (Ratio Decidendi) in the Cassation Decision Number 837K / Pdt / 2019 concerning default in the debt acknowledgment. The research method used in this study is a descriptive normative juridical approach, namely research that refers to the legal norms contained in statutory regulations and court decisions. The results of the research obtained by the author in this study are the first consideration of the judge in deciding Case Number 837 / K / Pdt / 2019 is not quite right because in theory the judge's decision overrides legal certainty for a civil case by deciding in default of a debt acknowledgment, which then the judge also also declared null and void the debt acknowledgment. Where based on the provisions of Article 12 of Law Number 4 of 1996 concerning Mortgage Rights, the guarantee which is the object of the author's research, is a forbidden cause that is contrary to the validity of an agreement, so that the legal consequences are null and void from the start without having to obey prior default in the debt recognition deed. So that the author's suggestion is necessary for parties who want to carry out lending and borrowing activities, especially in terms of debt and credit, first understand any rules and legal norms that apply to their actions, so that they will not cause losses among the parties who bind themselves in the future.

scholarly journals PERKEMBANGAN PERJANJIAN DALAM PRAKTIK PERDAGANGAN (PERSPEKTIF HUKUM ISLAM DAN HUKUM POSITIF)

JURISDICTIE ◽  
2017 ◽  
Vol 7 (2) ◽  
pp. 219
Author(s):  
Cindawati Cindawati
Keyword(s):  
Islamic Law ◽  
Human Life ◽  
Contract Law ◽  
Civil Code ◽  
Public Order ◽  
Freedom Of Contract ◽  
Positive Law ◽  
Legal Consequences

Agreement in human life to protect the rights and obligations are balanced. Differences in Islamic Law Perspective: Halal, agreed, able, without coercion, consent and Qobul. While the perspective of Positive Law: agree, capable, certain things, certain circumstances in accordance with Article 1320 of the Civil Code. The equation embracing principle of freedom of contract (al-Hurriyah) Islamic law is based on freedom of contract and volunteerism of each of the parties to a transaction (Q.S.An-Nisa ', 29). Give freedom to every person doing contract as desired, specify its legal consequences are religious teachings. The development of standard agreements in practice must be based on Sharia Principles provide benefits both parties, within the limits of lawful and unlawful, and the limits of public order and contract law, the provisions of Islamic law which is original. Perspective Positive Law: Principles embraced Open, gives the broadest freedom has entered into agreements contain anything, does not violate public order and morality. Rapid trade development followed the model "Standard Agreement". Business actors prepare raw clauses in the Agreement and can be accepted by the community. Raw agreements as a form of efficiency, the parties benefit and advantage to both parties.

scholarly journals Islamic banking

2021 ◽  
pp. 275-287
Author(s):  
Christian Castro
Keyword(s):  
Financial Institutions ◽  
Financial Services ◽  
Islamic Law ◽  
Islamic Banking ◽  
Investment Funds ◽  
Banking And Finance ◽  
Financial Products ◽  
The World ◽  
Globalized World ◽  
The U.S

In recent years the rise of Islamic banking has been one of the most important trends in the economic sphere, with an estimated 1.5 billion Muslims in the world, this arena has plenty of room for expansion. Conforming to Shariah (Islamic Law) puts a huge demand among Muslims looking for financial products and services that adhere to their beliefs. If it weren’t for the creation of such alter-natives to conventional banking and finance, Muslims would find it hard to participate in our globalized world without violating their religious principles. There are currently over 300 financial Institutions across the global sphere providing some type of Islamic financial product. According to some experts, the assets that are currently being managed under Shariah law, which range from investment to commercial banks and investment funds, are estimated to be no less than 300 billion. Other experts in the industry estimate the assets under mana-gement to be much larger. The FSA (Financial Services Authority), a regulator for financial services based out of London, estimates the total amount associated with Shariah banking to be as much as 500 billion. Even the U.S rating agency, S & P, estimates the sukuk (deed) market has reached over 75 billion and will likely be over 150 billion by the end of the decade. It used to be that Islamic fi-nancial products were more of a niche market but over time they are now considered mainstream, with many well-known interna-tional financial institutions battling to get a little piece of the pie.

scholarly journals Juridical Implementation of Distribution Assets for the Inheritance to Adopted by Islamic Law Compilation

Jurnal Akta ◽  
2020 ◽  
Vol 6 (4) ◽  
pp. 763
Author(s):  
Noor Handayani ◽  
Akhmad Khisni
Keyword(s):  
Islamic Law ◽  
Adopted Children ◽  
Literature Analysis ◽  
Legal Certainty ◽  
Adopted Child ◽  
Inheritance Law ◽  
Positive Law ◽  
The Will ◽  
Legal Consequences

The purpose of this study was to: 1) analyze the position adopted child's inheritance rights in Islamic Law Compilation (KHI). 2) to analyze the implementation of the division of property as inheritance to an adopted child Compilation of Islamic Law (KHI). 3) Analyze the legal consequences of the implementation of the division of property as inheritance to an adopted child Compilation of Islamic Law (KHI).This study was prepared using the type of normative juridical research, the research focused on reviewing the application of the rules or norms of positive law. This study uses the approach of legislation (statute approach) And the approach of the case (case approach). The data collection was obtained by interview and literature. Analysis of data using qualitative descriptive.The research results are: 1) Position Adopted in the Compilation of Islamic Law that adopted children may not be recognized to be the basis and cause of inherited, because the basic principle in Islamic inheritance law is their blood relations / nasab / descent. So as the solution according to Islamic law compilation is by jalam Award "was borrowed" on condition should not be more than 1/3 (one third). 2) The division of property as inheritance to an adopted child Compilation of Islamic Law (KHI) must meet two requirements that are required to accept the will not the beneficiary, the person who died both the grandfather and the grandmother has not provided to the child that must be made a will, the amount with other roads, such as grants for example, and if he has less than the sum was borrowed, then it should enhanced the will. 3) The role of the Notary in deed was borrowed for a foster child is doing what desired heir and explain all that heir to all the heirs, it is intended to provide clarity and legal certainty for all heirs of things execution of wills which heir to all his heirs.Keywords: Inheritance, Adopted, Compilation of Islamic Law.

scholarly journals Legal Protection of Donation-based Crowdfunding Zakat on Financial Technology: Digitalization of Zakat under Perspective of Positive Law and Islamic Law

2019 ◽  
Author(s):  
Nurul Ula Ulya
Keyword(s):  
Financial Services ◽  
Islamic Law ◽  
Legal Protection ◽  
The Other ◽  
Legal Certainty ◽  
Digital Form ◽  
Legal Research ◽  
Positive Law ◽  
Specific Regulation ◽  
Financial Technology

The aim of this research is to see the legal protection of Donation-based Crowdfunding zakat on financial technology due to the huge spreading of startup with zakat fund in Indonesia. Meanwhile there is still no specific regulation protecting various risks that will arise especially the risk of unobvious identity, potential disputes, dissimilarity of the zakat purpose and the implementation of zakat distribution, and the other deviations. This type of research is library legal research with conceptual and state approach. The result of the research shows that in positive law there is no legal protection regulation in Zakat based on Donationbased Crowdfunding. The regulation only crowdfunding contains investment element andgenerate profit as described in Act Number 21 Year 2011 regarding Financial Services Authority. While Zakat-based Donation-based Crowdfunding is a nonprofit-oriented type of product. This makes the absence in the elements of justice and legal certainty. The regulation on zakat only described in Law number 23 year 2011 which is not contained that system. In the protection of Islamic law, the certainty of the implementation of the contract is stipulated in the zakat based on sharia agreement that must comply with the various principles and provisions of sharia, whether the arrangement starts from the intention, the process of agreement, transparency, and all aspects relating to Amil, Muzakki and Mustahiq zakat (Who is the mustahiq and what kind and how the implementation). finally, the researcher hopes that this research will bring inputs for government to make more comprehensive regulations on zakat in its digital form.

scholarly journals KREDIT BERMASALAH DI PERBANKAN SYARI'AH DALAM PERSPEKTIF TEORI CACAT KEHENDAK

2019 ◽  
Vol 17 (34) ◽  
pp. 1
Author(s):  
Ahmad Gazali
Keyword(s):  
Islamic Law ◽  
Islamic Banking ◽  
Islamic Ethics ◽  
Legal Norms ◽  
Sense Of Justice

The development of Islamic banking, especially in Indonesia, is currently very perspective. Therefore there is trust from the community must always be maintained. Efforts to develop and trust must support two aspects, namely the implementation of transparency with Islamic ethics and a sense of foundation that provides certainty and a sense of justice. As a sharia banking, the operational basis is Islamic law, thus the readiness of Islamic law must always exist and be able to overcome the development of the development of the Islamic banking world. This paper is only a small part of the discussion to be approved and legal norms of sharia banking are made.

Seeking specific relief in cases of Islamic banking in Malaysia – an analysis

2018 ◽  
Vol 60 (2) ◽  
pp. 325-341
Author(s):  
Aishath Muneeza
Keyword(s):  
Financial Services ◽  
Islamic Law ◽  
General Rule ◽  
Islamic Banking ◽  
Content Type ◽  
Legal Principles ◽  
Banking And Finance ◽  
Muslim Countries ◽  
Library Research ◽  
Civil Codes

Purpose Often, the application of specific relief to Islamic banking is unspoken and unwritten. However, few studies suggest that legislation on specific relief needs amendment to cater for the effective application of Islamic banking and finance in the country and proposing the idea to introduce an Islamic Specific Relief Act. This paper aims to understand the application of specific relief to Islamic banking in Malaysia. This paper will look at the application of specific relief in Malaysia and discuss the extent of its application to Islamic banking cases reported in Malaysia from 1983 to 2015. The study will shed light on the general types of specific relief from Malaysian and Islamic law perspectives to conclude whether the provisions of Malaysian specific relief law invoked in courts in Islamic banking cases are in line with the general principles of Sharīcah. To further support this, evidence from various commercial civil codes of Muslim countries have been discussed to analyse these provisions from a more practical perspective. Design/methodology/approach This is a legal exploratory study primarily focussed on library research. Findings When it comes to Islamic banking, federal legislations dealing with commercial matters are applicable. For example, in Islamic banking products, if the land is the subject matter, then National Land Code 1965 shall be applied, and when dealing with Islamic banking agreements, the provisions of Contracts Act 1950 shall be followed. This has been highlighted as a problem faced by Islamic financial services in the case of Tan Sri Abdul Khalid Ibrahim v. Bank Islam Malaysia Berhad and other cases where the judge referred Engku Rabiah and quoted that in Islamic banking transactions, “the transactions entered by the parties may be Sharīcah-compliant in the first place, but upon enforcement of the contracts, the court may make orders and decisions that may side line the Islamic legal principles”. This happens when the substantive laws applicable to Islamic banking are incompatible with Islamic law. Fortunately, the analysis of the relevant sections of Specific Relief Act 1950 in this research proves that the provisions reviewed are in line with Sharīcah. However, to further enhance the operation of specific relief, the granting of specific relief could be made a general rule rather than an exceptional rule available with stringent rules. The research revealed that Specific Relief Act (1950) is expressly referred and discussed only in three cases reported from 1983 to 2015. There are only two specific sections of Specific Relief Act (1950) that have been deliberated in the reported case law on Islamic banking: provisions related to granting of a mandatory injunction and specific performance of contracts. Originality/value It is anticipated that this paper will assist to comprehend the importance of converging law and Sharīcah in legislations to attain Sharīcah compliance and will help to realise that not all conventional legislations are Sharīcah non-compliant.

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