HAWALAH TRANSFER OF DEBTS
The meaning of Hawalah Hawalah as an etymology is taken from the word tahwil which
means intiqal (displacement) or from the word ha'aul (change). Meanwhile, in terminology, it is
the transfer of the obligation to pay the debt from the person who owes it to the person
responsible for paying or bearing it or the transfer of the debt from the muhil dependency to the
muhal 'alaih. According to the National Sharia Council, Hawalah is a debt transfer contract from
one party who owes it to another party who is obliged to bear (pay) it. According to Bank
Indonesia, hawalah is a contract for the transfer of customer receivables (muhil) to the bank
(muhal 'alaih) from another customer (muhal). Thus, it can be said that hawalah is the transfer of
responsibility to pay debts from one person to another, or the transfer of responsibility to pay
from one person/party to another person/party. The Legal Basis of Evelah a. Sunnah 1.
Procrastinating on paying debts made by the able is an injustice. So, if one of you is transferred
the right to collect his receivables (foreseen) to a party who is able, accept it (HR. Bukhari). 2.
Whoever is transferred (his debt) to a person who can afford it, let him accept (the gift). (HR.
Ahmad Ibn Hambal). b.
Ijma' Ulama Based on the aforementioned hadith, the scholars agree that the
tranksanctions hawalah the law is mubah (permissible). Pillars and Conditions of Hawalah The
majority of scholars other than the Hanafi madhhab, state that there are 6 pillars of hawalah,
namely those who receivable (al-muhal or muthal), those who owe (al-muhil), those who owe
and are obliged to pay debts to muhal (al-muhal 'alaih), muhil debts to muhal (al-muhalbih),
muhal 'alaih debts to muhil, and statements of agreement (sighat). Meanwhile, according to the
Hanafi School, the harmony of hawalah is only ijab and qabul. The valid conditions for hawalah
are as follows: a. People who are in debt and at the same time have debts, Muhil must be aqil
and puberty. b. Those who owe (muhal/muhtal) to muhil, Muhal must be aqil (sensible). c. A
person who pays a muhil debt to muhal (muhal 'alaih), capable in carrying out legal actions. d.
Debt (muhal bih), i.e. the existence of a debt of muhal 'alaih to muhil. Various Eve a. Based on the
type of transfer, namely, hawalah dayn is the transfer of debts or the obligation to pay / pay off
debts owned by a person or one party to another person or party, while hawalah haqq is the
transfer of rights or receivables or bills owned by a person or party to another person or party. b.
Based on the pillar, namely, hiwalah muthlaqah is hawalah where the person who owes his debt
transfers his debt to muhal 'alaih without associating it with the debt of muhal 'alaih to him. While
Hiwalah muqayyadah is a hawalah that occurs where the person who owes his debt transfers his
debt to muhal 'alaih by associating it with the debt of muhal 'alaih to him (muhil). c. Based on the
Reward, namely, Hiwalah Bighairi ujrah is a hawalah that is not accompanied by the giving of
ujrah/fee from the transfer process. While hiwalah bil ujrah is hawalah with the imposition of
ujrah/fee in the transfer process.
As a result of the Law of Hawalah a. Jumhur Fuqaha, the obligation of muhil to pay debts
to muhal automatically becomes released, while according to some Hanafi scholars, the
obligation still exists as long as muhal 'alaih has not paid off his debt to muhal. b. The hawalah
contract causes the right for muhal to demand payment of debts to muha; 'Alaih. c. Madzhab
Hanafi confirmed the occurrence of hawalah muthaqalah because of the initiative of the muhil.
The end of the Akad Hawalah can occur due to the following: a. Fasakh hawalah, if the hawalah
contract is cancelled (di-fasakh) by one of the parties before the permanent occurrence of the
contract, then the second party has the right to demand payment of debt to the first party, as well
as the first party to the third party. b. Dies, the second party dies, while the third party is the heir
who inherits the property of the second party. c. The third party pays off the transferred debt to
the second party. d. The second party grants, or lends the property which is a debt in the contract
to a third party. e. The second party releases the third party from its obligation to pay the
transferred debt. f. The rights of the party, according to Hanafi scholars, cannot be fulfilled, the
third party experiences bankruptcy (bankruptcy) or dies in bankruptcy or in the absence of
authentic evidence of the hawalah contract, the third party reneges on the contract. Benefits of
Evelah a. In the transaction of debt transfer (other financing), the Bank gets a reward for the
transfer service. b. Allows for quick and simultaneous settlement of debts and receivables.
Application of Akad Hawalah in Banking a).
Legal Basis for the Implementation of Transaction by Sharia Banks 1. Circular Letter of
the Board of Directors of Bank Indonesia No. 10/14/DPbs dated March 17, 2008 concerning the
Implementation of Sharia Principles in Fundraising Activities and Distribution of Funds and
Services of Sharia Banks, states that the provision of debt transfer services is based on the
contract of hawalah muthalaqah and hawalah muqayyadah. 2. The transfer of debts and
receivables in conventional law can generally be done through: a. A cessie is a transfer of
receivables that is actually a replacement of the old receivable, which in this case is called
cedent, with a new receivable, which in this relationship is called a cessionary. b. Subrogation or
replacement of the rights of the debtor by a third party, who pays the debtor, occurs by agreement
or by law (Article 1400 of the Civil Code). c. Novation (Article 1413-Article 1424 of the Civil Code)
is a debt renewal that based on Article 1413 of the Civil Code can be carried out in three ways,
namely objective novation, passive subjective novation, and active subjective novation. 3. Fatwa
of the National Sharia Council of the Indonesian Ulema Council No: 12/DSN-MUI/IV/2000, dated
April 13, 2000 concerning Eve, Fatwa of the National Sharia Council of the Indonesian Ulema
Council No: 31/DSN-MUI/VI/2002, dated June 26, 2002 concerning the Debt Court, and DSN
Fatwa No.58/DSNMUI/V/2007 dated May 30, 2007 concerning Hawalah Bil Ujrah. b). Application
of hawalah products in Islamic Banking.
Guided by the provisions above, the application of hawalah in Islamic banking includes
the following. 1. Debt Transfer (Take Over) KPR Bank acts as the party that receives the transfer
of debt on the customer's debt to a third party (hawalah muthlaqah). From the bank's side, the
transfer of customer debt to a third party is a form of distributing funds in the form of financing to
meet the needs of customers in paying off their obligations arising from transactions they make
with third parties. 2. Factoring or Factoring Receivables This concept of hawalah, in terms of
mafhum mukhalafah, can also be applied in the event that the customer has receivables to the
Islamic bank, then the Islamic bank distributes financing to the customer to meet his needs, and
the Islamic bank collects the receivables from the third party. 3. KAFALAH (TANGGUNGAN)
Kafalah According to Islamic Law (Fiqh) a. Definition In language, kafalah means to combine (al-
dhammu), bear (hamalah), and guarantee (za'amah). According to the term, kafalah is to unite
responsibilities with other responsibilities in terms of absolute demands, whether related to
soul, debt, material, or work. b. Sharia Foundations The basis of the law of kafalah is derived from
the Qur'an, al-Sunnah, and the agreement of the scholars, among others: 1. The Qur'an of Jacob
said: "I will never let go with you, until you give me a firm promise in the name of Allah, that you
will definitely bring it back to me." (QS. Yusuf (12): 66). The callers said: We have lost the king's
cup, and whoever can return it will get foodstuffs (as heavy as a camel's burden) and I guarantee
against him (QS. Yusuf: 72). 2. Al-Sunnah The Prophet PBUH said: 'The debt must be paid, and
the one who bears it must pay it'. (HR. Abu Daud and Tirmidhi and authenticated by Ibn Hibban).
3. Ijma' Ulama The scholars of madzhab allow this kafalah contract. The early generation of
Muslims practiced this, even today, without any objection from a single scholar. c. Pillars and
Conditions of Kafalah 1. The guarantor/insurer (kafil, must be puberty (adult) and sensible, and
has the full right to take legal action in the affairs of his property and is willing (ridha) with the
dependents of the kafalah. 2. The party who owes (makful 'anhu/'ashil), must be able to
surrender his dependents (receivables) to the guarantor, and be known by the guarantor. 3. The
party who owes the debt (makful lahu), must know his identity, can be present at the time of the
contract or give power, and has common sense. 4. The object of guarantee (makful bih), must be
the dependents of the party/person who owes (ashil), whether in the form of money, objects, or
work. d. People Who Can Be Borne by Fiqh Scholars states that basically everyone can receive
guarantees or dependents from other parties, as long as those parties are willing to bear it and
the party they are supporting is still alive. As for people who have died and do not leave
inheritance, according to Imam Malik and Shafi'I, it can be covered. e.
Period of Dependency According to Ibn Rushd, the jurists argue that the period of
dependency is valid from the fixed right of the person to be defended, especially the dependents
of property. Meanwhile, the dependents with the body, the right remains after confirmation with
the insurer and declaring their willingness to become the insurer. f. Obligation The Insurer is
obliged to bring in (find) the person who is insured, or compensate for the loss. This opinion was
expressed by Imam Malik and his followers and the fuquha of Medina. That the insurer is
imprisoned, until the insured comes so that the insured person has come, or if he dies, his death
has been known. This is the view of Imam Abu Hanifah and Iraqi Fuqaha. That the insurer is not
subject to any obligation including imprisonment, unless he has to find him/bring him, if he
knows the place. This is the opinion of Abu 'Ubaid al Qasim. g. Object of Dependents 1)
Dependents with debts, namely the obligation to pay debts that are the dependents of others. In
the matter of debt, it is required as follows, the value of the goods should remain at the time of
the dependency/guarantee transaction, the goods are known, if they are not known, it is feared
that ghahar will occur. 2) Material dependency, which is the obligation to hand over certain
materials that are in the hands of others. If it is not in the form of collateral such as 'ariyah (loan)
or wadi'ah (deposit), then kafalah is invalid 3) Kafalah with property, which is a guarantee given
by a seller to the buyer because of the risks that may arise from the goods being sold. h. Types of
Kafalah a. Kafalah bil mall, is a guarantee for payment of goods or debt expansion. b. Kafalah bin
nafs, is the self-assurance of the guarantor. c. Kafalah bit taslim, is the self-assurance of the
guarantor. d. Kafalah al munjazah, is a guarantee that is not limited by a certain period of time
and for certain interests/purposes. e.
Kafalah al muallaqah, is a form of kafalah which is a simplification of kafalah al
munjazah, where the guarantee of a certain period of time and a certain purpose is also
guaranteed. i. Reward for Kafalah services According to Wahbah Al-Zuhalli, this kafalah is
basically a contract of kindness (tabarru') and mutual help (ta'awun). The guarantor (Kafiil) has
the right to receive back a certain amount of guarantee that he gives to the guaranteed person
(makhful anhu) without receiving a reward (muqabil), but if the guarantor wants to give a gift or
reward, he can accept it according to his habits (urf). j. Consequences of Kafalah Law 1. The
guarantor (kafi) is obliged to fully guarantee if the insured person does not exist (perdi or
disappear). 2. The guarantor holder (makful lahu) has the right to return the letter of insurance,
so that the guarantee itself becomes void (fasikh). Application of Kafalah in Banking a.
Application in Sharia Banking L/C Standby L/C Issued at the request of the buyer of goods Issued
at the request of the seller of services Shown to the seller of goods Addressed to the buyer of
services Establish payment if the achievement Establish the implementation of an achievement
in the form of services (Delivery of goods) is carried out according to the requirements in the LC
Documents submitted to get payment can be simple, for example only receipt Expected to be
disbursed Not expected to be disbursed Payment to seller if the achievement is carried out
Payment to the buyer if the achievement is not carried out b. Bank Revenue The collection of
wages and administrative fees can be carried out: 1. At the time of signing the contract and the
issuance of the Bank Guarantee Letter: a) At the time the customer signs the contract for the
provision of bank guarantee facilities (kafalah) and counter guarantees, the bank collects ujrah
for the investigation of the bank guarantee facility (kafalah) b) at the time the bank guarantee is
issued by the bank, The bank collects an administrative fee for the bank guarantee letter. 2. In
the event that the customer defaults a) If the bank guarantee is issued with a full cover guarantee,
the bank can only collect an administration fee if any, because there is no financial risk for the
bank. b) If the bank guarantee is issued with a non-full cover guarantee, then the bank can collect
a wage (ujrah) because the bank has made a payment of any amount of money to the bank
guarantee holder. c. Examples of Bank Guarantee Products Project Contract between the
customer and the project owner negotiation and requirements between the Islamic bank and
the customer Kafalah contract between the customer and the Islamic bank Issue a Bank
Guarantee from the Islamic Bank to the p
roject owner Ujrah and guarantee from the customer to the Islamic Bank Return BG
from the project owner to the Islamic bank Claim payment when it occurs from an Islamic bank
to the project owner. 4. RAHN Principles of Rahn in Fiqh (Islamic Law) a. Definition of Rahn
Etymologically in Arabic, the word ar-rahn means "fixed" and "sustainable". The word ar-rahn is
also named al-hasbu meaning "detention", as it is said that ni'matun rahinah means "permanent
and sustainable bounty". Meanwhile, in terminology, rahn is defined by several fiqh scholars,
including according to Malikiyah scholars: property that is used as a collateral for a binding debt,
according to Hanafiyah scholars: making something (goods) a guarantee for rights (receivables)
that may be the payer of the right to receivables either in whole or in part. b. Legal Basis 1) The
Qur'an 2) If you are on a journey (and do not pay in cash) and you do not obtain a writer, then there
should be a treasure held (by the debtor). (QS. Al-Baqarah (2):283) 3) Al-Hadith 4) From a'masy,
from Ibrahim, from Al-Aswad, from Aisha ra, that the Prophet Muhammad (saw) bought food from
the Jews by having the payment suspended and then the Prophet pawned his armor. (HR.
Bukhari). 5) -Ijma 6) From the hadith and verse above, the scholars have agreed (ijma) that: 7)
Goods as collateral for debt (rahn) are permissible (jaiz) 8) Rahn can be done both in traveling
(safar) and not in safar. Pillars and Conditions of Rahn a. Rukun Rahn According to the majority
of scholars, there are five pillars of rahn, namely rahin (the person who pawns), apostasy (the
person who receives the pawn), marhun/rahn (objects/pawns), marhun bih (debt), and shigat
(ijab-qabul). b. Conditions of Rahn 1) the parties to the financing of rahn (rahin and murtahin),
capable of acting according to the law, are mature. 2) Statement of agreement (sighat ijab qabul)
3) Marhun bih (debt), debt (marhun bih) must be repaid by the debtor (rahin) to the creditor
(murtahin), debt can be repaid with collateral, debt must be clear and specific (can be quantified
or counted as the amount). 4) Marhun (goo
ds), which are the characteristics of goods that have a value of goods and can be traded,
clear and specific, the legitimate property of the person who owes it, not related to the rights of
others, is a whole property, may be handed over both material and benefits; types of goods based
on sharia provisions and statutory provisions; control of pawned goods. Utilization of Ar Rahn
Goods The recipient of the pawn may take benefits from the goods that are used as pawns
(pawned goods) or charge the pawnbroker as a reward or maintenance of the goods. From the
provisions of article 1158 of the Civil Code, it can be concluded that if a receivable is mortgaged
in the receivable producing interest, then the debtor may calculate it with the interest that must
be paid by the debtor. Sale of Pawned Goods after Maturity If the time has matured, the person
who pawned the goods is obliged to pay off his debt, if he does not pay it off and does not allow
his goods to be sold for the repayment of the debt, then the Judge has the right to force him to
pay off or sell the pawned goods. If the judge has sold the goods and then there is an excess of
the obligation to pay, then the excess belongs to the person who pawned and if it is still not
covered, then the pawnbroker is obliged to cover the rest. The Destruction of Pawned Goods
Based on Hadith: The collateral should not be hidden from its owner, because the proceeds of
profits (from the collateral) and risks/losses (arising from the goods) are his responsibility (HR.
Al-Hakim, al-Baihaqi, and ibn Hibban from Abu Hurairah). So according to scholars, who is
responsible for the destruction of pawns is the responsibility of the pawnholder. In the provisions
of Article 1157 of the Civil Code, the pawnholder is responsible for the loss or decline in the price
of the dependent goods, if it is due to his negligence. Termination of the Rahn Contract According
to article 1152 paragraph (3) of the Civil Code: a) The cancellation of the debt borne b) Voluntarily
released c) The dependent goods are lost d) The responsible goods are destroyed (deleted) e) If
a pawn holder for some reason becomes the owner of the mortgaged goods. Debt Guarantee
According to Conventional Provisions In Non-Sharia provisions there is no firm definition of the
delivery of goods as debt security, while conventional provisions there are rules regarding the
binding of goods as debt security. Types of Collateral Binding a. The right of dependency is a
security right charged to the right to land
as referred to in Law Number 5 of 1960 concerning Basic Regulations on Agrarian
Principles. b. Hypotics is a material right over immovable objects, to take their replacement for
the settlement of an alliance (Article 1162 of the Civil Code). c. Pawn is a right obtained by a
debtor for a movable item, which is handed over to him by a debtor or by another person on his
behalf (Article 1150 of the Civil Code). d. Fiducia guarantee is the right of guarantee for movable
objects, both tangible and intangible, and immovable objects, especially buildings that cannot
be encumbered with the right of security as referred to in Law Number 4 of 1996 concerning the
Right of Dependency that remains in the control of the Fiducia Grantor. e. Coverage is an
agreement with a third party, for the benefit of the debtor. Binding of Collateral with Pawn in
Financing Sharia provisions do not regulate the type of binding of collateral, therefore it must be
guided by the provisions applicable in conventional law as binding public provisions. Where the
purpose of the rahn product specifically is to help the community obtain cash funds quickly and
easily, by handing over goods as collateral for debts (collateral). Therefore, the binding by pawn
on debt collateral (rahn) is more in line with the purpose of the rahn product. 5. SHARF (FOREIGN
EXCHANGE BUYING AND SELLING) Definition of Foreign Exchange is a foreign currency used in
international trade (foreign exchange), Exchange rate is a comparison of exchange rates between
countries. The Foreign Exchange Market is a meeting place of demand and supply for foreign
exchange, it does not always have to be a physical place. Types of Transactions a. Spot
transactions, namely foreign exchange trading transactions in which the delivery of each traded
foreign exchange is 2 days later. b. Forward Transaction, which is a transaction made between
one currency and another currency at the exchange rate set now or at the moment but is applied
for the future up to 1 year (12 months). c. Transaction barter (swap), which is a combination of
buying and selling two currencies in cash followed by buying and selling the same currency in
cash and arrears. d. Currency option trading is an agreement that gives the buyer of an option the
right to exercise his rights at a certain rate (strikes price) within a certain period of time. Sharf
(buying and selling foreign exchange) according to Islamic law 1. Definition Etymologically, sharf
means additional or excess (azziyadah), while in terminology sharf is buying and selling money
for money, either of the same type or different types, or buying and selling gold for gold, silver for
silver, gold for silver, both in the form of pieces and currency. Another definition, Sharf is a
transaction of buying and selling currencies (foreign exchange) of the same kind or non-similar,
such as buying and selling dinar with dinars, dirhams with dirhams or dinar with dirhams. 2. The
Legal Basis of Sharf a. Hadith We were two merchants in the time of the Prophet (saw), we asked
the Prophet (saw) about sharf (buying and selling of currency), so the Prophet (saw) said;" if it is
done in cash, then it is okay (permissible), but if it is done with a postponement, it is invalid" (HR.
The Prophet (saw) said: "Do not sell gold for gold, except with the same scales, and do not add
one part to another. And do not sell silver for silver, except with the same scale, and do not add
one part to another, and do not sell unseen goods with real goods" (HR. Bukhari and Muslim). b.
Ijma Ulama Based on the above hadiths, the scholars agree that the law is permissible (mubah)
to carry out transactions in the purchase and sale of foreign currency (sharf). 3. Sharf Terms a.
Foreign exchange must be handed over directly, the exchange rate traded must be able to be
controlled directly, both by the buyer and by the seller, before the two separate. b. The foreign
exchange traded must be equal or balanced in
value, if the currency traded is the same, for example gold with gold, silver with silver,
then it should not be, unless the quantity and quality are the same, even if the models are
different. c. No choice is made, no khiyar conditions in the sharf contract apply, namely the right
to vote for the buyer whether to continue buying and selling or not which is required during the
transaction. d. Buying and selling is carried out in cash, there is no death (grace period) in the
contract. 4. Some Legal Consequences Caused by Sharf a. Ibra (abortion rights) and grants b. If
one of the parties gives something that exceeds his obligation in the exchange of the object of
sharf, then according to the scholars of fiqh, it should not be because of usury. c. If there is a
transfer of debt to another party (hawalah), then according to the jurists the law is permissible
because the mastery of the object of sharf meets the requirements perfectly. d. The occurrence
of aborting rights or debts (al muqashah). The application of Sharf in Sharia Banking applies the
requirements of Bank Indonesia Circular Letter No.10/14/DPbs dated March 17, 2008: a. Banks
can act both as the party receiving the exchange and the party exchanging money from or to the
customer. b.'Transactions exchanged for different types of currencies (foreign exchange) can
only be carried out in the form of spot transactions. c.
In the event that the transaction is exchanged for a different type of currency in the money
changer, the transaction must be carried out in cash at the exchange rate (exchange rate)
applicable at the time the transaction is made. According to the Fatwa of the National Sharia
Council No. 28/DSnMUI/III/2002 dated March 28, 2002 concerning the sale and purchase of
Currency (AlSharf), it can be concluded in principle: a. not for speculation b. just in case c. if the
value of the same type must be the same and cash d. if the other type is carried out with the
exchange rate (exchange rate) e. the type of spot transaction is allowed, while forwards, swaps,
And the legal option is haram. The DSN-MUI fatwa allows forward agreements with wa'ad. By
paying attention to the principle of sharf, in its implementation Islamic banks must meet several
provisions, among others as follows: a. the exchange must be carried out in cash (bal' naqd) b.
must be avoided buying and selling khiyar or conditional c. it is not allowed to sell goods that
have not been authorized or without ownership rights (bai' fudhuli).
