PILLARS AND CONDITIONS OF MUDHARABAH
The pillars of mudharabah are financiers, managers, capital, profit ratios and sighat or
contracts. The conditions of mudharabah are as follows: i. Investors and Managers 1) Investors
and managers must be able to conduct transactions and be legally valid. 2) Both must be able to
act as representatives and kafils of each party. 3) The shighat that is carried out can be explicit
and implicit which shows the purpose of the contract. 4) Valid in accordance with the conditions
proposed in the offer, and the contract can be done orally or verbally, in writing or signed. ii.
Capital Capital is a sum of money given by a fund provider to the manager for the purpose of
investing it in mudharabah activities. For this reason, capital is required to: 1) Clearly state the
amount and type (i.e. currency). If capital is in the form of goods, then the goods must be valued
at the current price in money in circulation (or the like); 2) It must be in the form of cash instead
of receivables (but some scholars allow mudharabah capital in the form of trading assets, for
example, inventory); 3) It must be handed over to the mudharib to enable him to do business. iii.
Profit is the amount obtained as an excess of capital. Profit is the ultimate goal of mudharabah.
The benefits are required as follows: 1) It must be divided for both parties.
The profit sharing should be expressed as a percentage of the profits that may be
generated later. 3) The percentage ratio (ratio) must be achieved through negotiation and
outlined in the contract. 4) The time of profit distribution is carried out after the mudharib returns
all (or part) of the capital to the shahibul maal. 5) If the period of the mudharab contract is
relatively long, the profit ratio can be agreed to be reviewed from time to time. 6) If the
determination of profit is calculated based on gross profit, the costs incurred are agreed upon by
both parties, as it may affect the value of profit. Provisions in Mudharabah i. General Provisions
of Mudharabah 1) Restrictions on the time of Mudharabah. Some scholars are of the view that it
is permissible to restrict mudharabah in a certain period. 2) It is forbidden to make a contract
that depends on an event in the future, because it contains an element of uncertainty. ii.
Guarantee in Mudharabah Basically, a mudharabah contract is a trust contract. Therefore, in
mudharabah, according to some scholars, the owner of the fund is not allowed to ask for a
guarantee like a guarantee (rahn) in a debt and receivables transaction. Meanwhile, according to
some other scholars, guarantees can be requested by fund owners/financiers to fund managers
and/or to third parties in the form of risk collateral.
The ability to take the guarantee is based on the assumption that it is not impossible for
the mudharib to violate the boundaries or violate the agreed provisions, or called the moral
hazard guarantee or the guarantee of the possibility of violation. The arguments for the
permissibility of guarantees in mudharabah transactions in Islamic banking are as follows: 1) The
use of Islamic bank services is numerous, so that the owner of capital/bank does not know for
sure the credibility and capabilities of the mudharib, unlike the practice of mudharabah in the
time of the Prophet. 2) Commitment to the values of trust as a reason (illat) does not need a
guarantee, in accordance with the situation and conditions of the community in general to
change, so that the reason (illat) can change as the rule of law "the existence of law is determined
by the presence or absence of illat (al-hukmu yaduru ma'a illat manifestation wa; adaman)." 3)
Guarantee related to the risk of violation, omission, and violation of the agreement that has been
determined. iii. Limitations of Mudharib Actions on Mudharabah Funds There are three
categories of actions for mudharib against mudharabah funds, namely actions that mudharib is
entitled to carry out based on contracts; actions that mudharib has the right to take based on the
power of representatives in general; and actions that are not entitled to be carried out by
mudharib without explicit permission from the fund provider. iv. Authority of Mudharib Mudharib
is responsible for handling affairs related to projects or business activities financed by
mudharabah financing. Therefore, mudharib has the power to act freely, but this can only be
done within certain limits. Even though the shahib al-maal has the right to give instructions and
restrictions to the mudharib, such instructions or restrictions as long as they do not hinder the
achievement of the objectives of the mudharabah agreement, which is to obtain profits through
business actions carried out by the mudharib. If the instruction or restriction prevents the
achievement of the objectives of the mudharabah agreement, then the instruction or restriction
can be canceled (Nabil A Saleh, 1986:113). v.
Limits of Liability Mudharib Mudharib is not responsible for the reduction or exhaustion
of capital invested by shahib al-maal. The responsibility of mudharib is only limited to giving his
hard work, thoughts, and time to take care of a business financed with shahib al-maal capital.
This principle is also an important condition for the validity of a mudharabah agreement.
However, it is not closed that mudharib also includes capital if it is desired by the mudharib
himself, but it is not demanded by shahib al-maal so that mudharib also invests capital. Between
the shahib al-maal and the mudharib it can be agreed that the relationship of the agreement is
mudharabah muthalaqah (absolute mudharabah or unbound investment) or is mudharabah
muqayyadah (limited mudharabah/bound investment), depending on their own choice. vi.
Obligations, Rights, and Responsibilities of Shahibul Maal in Mudharabah The main obligation of
shahib al-maal is to hand over the capital of the mudharabah to the mudharib. If this is not done,
then the mudharabah agreement becomes invalid (Nabil A. Saleh, 1986:106). Shahib al-maal is
obliged to provide funds entrusted to mudharib for the purpose of financing a project or a
business activity. This right of the shahib al-maal can relieve him from his worries. However, the
shahib al-maal as the party that provides the funds and must bear all the financial risks that occur
and since it is not allowed to interfere in the management of the project or business concerned,
such a right will be able to reduce its concern about the possibility of mudharib deviating from
the provisions of the mudharabah agreement, committing negligence in the management of the
project or business concerned. or even the possibility of committing frauds that can endanger
the investment of Sahib al-Maal. Shahib al-maal has the right to recover his investment from the
results of the liquidation of the mudharabah business and the amount of the liquidation of the
mudharabah business is sufficient for the return of the investment funds (Nabil A. Saleh,
1986:106).
The responsibility of the shahib al-maal is limited only to the amount of capital that it has
invested. This principle is a very important principle if it is not so, the responsibility of the shahib
al-maal is not limited. The responsibility of the bank in its position as a shahib al-maal, is limited
only to the capital provided. The responsibility of the customer in the position of mudharib, is
limited solely to his time, thoughts, and efforts (hard work). The Mudharabah application in
Mudharabah Banking is usually applied to funding and financing products. On the funding side,
mudharabah is applied to current account, savings and deposit products. In these deposit
products, the depositor acts as a shahibul maal (owner of capital) and the bank as a mudharib
(manager). The funds are used by the bank to finance other parties in the form of acceptable
transactions such as the principles of buying and selling, renting, and financing. In the authority
given by the depositor, banks can apply the principles of mudharabah muthalaqh and
mudharabah muqayyadah. Mudharabah Financing Scheme B. EXCHANGE CONTRACT
PRODUCTS 1. MURABAHAH Definition of Murabahah The word murabahah comes from the
(Arabic) word rabaha, yurabihu, murabahatan, which means lucky or profitable, such as the
expression " tijaratun rabihah, wa baa'u asy-syai murabahatan " means profitable trade, and
selling something that gives profit. The word murabahah also comes from the word ribhun or
rubhun which means to grow, develop and increase. Murabahah is the sale and purchase of
goods equal to the cost of goods plus the agreed profit margin (see article 1 number 7 of Bank
Indonesia Regulation No. 746/PBI/2005 concerning the Contract for the Collection and
Distribution of Funds for Banks that carry out business activities based on sharia principles. Then
in one case this murabahah can be combined with a wakalah contract, actually in the hadith of
the Prophet PBUH has forbidden the merger of two contracts in one transaction but in this case
it is different the contract used can be two, but each of these contracts is independent, so there
will be no two contracts in one transaction. According to Islamic Law experts (fuqaha), the
meaning of murabahah is "al-bai'bira'sil maal waribhunma'lum" which means buying and selling
with basic goods plus known profits" The jurqaha defines murabahah as a form of buying and
selling on the basis of trust (dhaman buyu' al-amanah).
According to the National Sharia Council, murabahah, which is selling an item by
confirming the purchase price to the buyer and the buyer pays it at a higher price as a profit. The
bank buys the goods needed by the customer and sells to the customer concerned the amount
of the cost price plus the agreed profit. The meaning of murabahah in practice is what is termed
bai al-murabahah liamir bin-shira, which is the request of a person or buyer to another person to
buy goods with specified characteristics. For short, this form is called murabahah demand/buyer
order (MPP). This MPP is the basis of the agreement and the occurrence of the transaction of
buying and selling goods and the request/order is considered customary (definite/binding) for the
order. The pillars of Murabahah are the same as the pillars of buying and selling in general,
namely the existence of sellers (al-bai), buyers (al-jupiter), goods purchased (al-mabi), prices (al-
tsaman), and shighat (ijab-qabul) Murabahah is one of the buying and selling processes, the
majority of scholars are of the opinion that the legal basis of murabahah is the same as the legal
basis of buying and selling in general, the legal basis used by the majority of scholars is the Qur'an
and the Hadith of the Prophet PBUH. Surah QS. An-Nisa (4):29; QS. Al-Baqarah (2): 275; QS. Al-
Muzzammil (73): 20 and QS. Al-Baqarah (2):198. The translation of the verses is as follows: O you
who believe, do not eat one another's wealth in a false way, except by a consensual way of
business among you, and do not kill yourselves. Indeed
, Allah is the Most Merciful to You (QS. An – Nisa(4):29);... Allah has legalized buying and
selling and forbids usury (QS Al-Baqarah 92): 275);... And those who walk on the earth seek some
of Allah's bounty (Qur'an. Al-Muzzamil (73):20)... There is no sin for you to seek bounty
(sustenance from business) from your Lord. (QS Al-Baqarah (2) : 198). For Jumhur scholars,
murabahah is one of the types of buying and selling that is permissible by sharia. Therefore, in
general, it is subject to the principles and conditions of sale and purchase. Even so, there are
several special conditions for buying and selling this murabahah, namely: a. The seller should
declare the actual capital for the goods to be sold b. The buyer agrees to the profit set by the
seller in exchange for the acquisition price/purchase price of the goods, which then becomes the
selling price of the goods in murabahah. c. Around there is an unclearness/incompatibility of the
selling price of the goods, so the buyer cancels the contract that has been carried out. So that
the bubrlah buys and sells in murabahah; d. Goods sold in murabahah are not ribawi goods. Fiqh
Issues in Murabahah Some of the issues of fqh in murabahah that are often discussed among
Islamic jurists include: whether the promise (waad) to buy goods from the buyer to the bank is
legally binding (mulzam qadhaan) or only morally binding (mulzam diyanah); how the terms of
the contract are carried out between the bank and the seller of the goods; how are the provisions
on credit/installment prices; And finally, can several contracts be united in one contract
(ta'addud al-'aqd/al-uqud al-murakkabah). Murabahah with an additional price to the selling
price of goods because there is a period of payment or buying and selling in installments, the
scholars have different views in two groups. The first opinion is the opinion of the majority of fiqh
scholars from Hanafiyah, Malikiyah, Shafi'iyah, and Hanabillah who allow buying and selling
installments by leaving the selling price compared to the cash price. Some of the contemporary
scholars who agree include Shaykh Abdul Aziz bin Baz and Yusuf Qardhawi. They base
themselves on the Qur'an, the following sunnah and ijtihad: 1. The generality of the words of Allah
"Allah justifies buying and selling" (QS Al-Baqarah (2):275) and "there is no sin for you to seek the
bounty of your Lord" (QS. Al-Baqarah (2):198). 2. The hadith of the Prophet PBUH which reads: If
there is a difference between two types of goods, then buy by yourself what you like. (HR Muslim)
3. From Abdullah bin Amr bin Ash that he was ordered by the Prophet PBUH to prepare war
troops. So Abdullah bin Amr said, "We don't have dhahr (strong camel)" then he said, "Then
Abdullah bin Amr was ordered by the Prophet PBUH to buy dhahr to those who want to give alms.
Then Abdullah bin Amr exchanged one camel for two more camels. The camel was bought to a
person who wanted to give alms on the order of the Prophet PBUH. The original law of buying and
selling traders had the freedom to determine prices, as long as they did not exceed the limit
(istighlal), commit tyranny, and ihtikar (monopoly). 5. Based on qiyas to bai al-salam, where bai
al-salam is the buying and selling of ajil bi'ajil (cash payment of goods later).
In ba al-salam because the goods are handed over later, it is permissible to increase the
price of the goods. The second opinion is some Shia opinions such as Al-Qasimiyah and Imam
Yahya as well as the opinions of Ibn Sirin, Shurayh, and Ibn Hazm Adhzahiri, which states that it
is not permissible to increase the selling price of goods against buying and selling in a period of
time (credit). Some of the Contemporary Ulema who agree with this opinion include Shaykh
Abdurrahman Abdul Khaliq and DR. Rafiq alMishri. They argue: 1. Narrated by Abu Hurairah on
the Hadith "Whoever makes two sales of one type of goods, then for him the cheapest (first)
between the two or becomes riba." This hadith clearly shows that it is not permissible to
determine two prices on one good, in cash or in time/credit. If there are two prices, then take the
first one (in cash), otherwise it will be in the category of riba. 2. Another hadith from Umar bin
Sha'ib, the Prophet said: "It is not halal to borrow and sell, nor are there two conditions in one
sale." This hadith describes salaf (borrowing) and buying and selling in a timely manner that
increases the selling price, it is also not allowed to describe two conditions in one sale. If the
cash price is that much, if the time is so long, then it is invalid. 3. That the buying and selling of
credit includes usury. An increase in credit prices is like an increase in debt due to credit. Of the
two opinions, according to the majority of scholars, the most rajah is the first opinion, which is to
allow buying and selling in installments by increasing the selling price. The reasons put forward
by the majority of scholars include the position of the hadith "Naha Rasulullah ' An Bai; According
to them, the hadith is mainly the narration in the sentence " au
Payment in murabahah can be made in two forms, namely payment with a time period,
but paid at once in cash at a specified time (muajjal/lumpsam), or payment with a time period in
installments (taqsith/installation) until a predetermined time. In relation to Islamic banks, some
of the reasons that are used as the basis and justification for the permissibility of providing a
higher price for deferred payments are: 1. Sharia texts do not prohibit it 2. There is a difference
between the text available now and the cash available at the coming time 3. That the addition of
the julah does not contradict the payment time, and it is not the same as the practice of riba as
prohibited by the Quran. 4. That the addition is determined at the time of sale, not after the sale
transaction has been made; 5. That the addition is influenced by demand and supply factors, as
well as the rise and fall of the value of the currency due to inflation or deflation. 6. That the seller
takes into account commercial and productive activities 7. That the seller is allowed to
determine the price in accordance with the Policy reasonably. Merger of Contracts Merger of
contracts (al-uqud al-murakkabah), which is an agreement between two or more parties to unite
two or more contracts that differ in their features and legal consequences in order to achieve a
transaction that can run as desired. Regarding the merger of contracts among the jurists, there
are two opinions, namely as follows: 1. The first opinion, according to the jumhur of the jurists of
hanafiyah, Shafi'iyah malikiyah, and some Hanabilah, who say that it is not permissible to
combine several contracts in one contract unless the contract stands alone legally (fi hlatin
wahidah) such as the merger of the bai' contract with the ijarah contract, their argument is based
on the hadith "naha baiatin fi baitatih; naha ansafaqatain fi safaqah; and naha an salaf wa bai wa
ansyartain fi bai' . The lahiriyah of these hadiths shows that it is not permissible to combine
contracts and conditions in one contract, except to combine the bai and ijarah contracts
because there is no conflict between the two. 2. The second opinion, according to the followers
of Malikiyah and Ibn Taymiyah from Hanabilah who stated the ability to unite / combine contracts
and conditions in one contract. According to them, the law of origin of the contract and
conditions is ibahah. Of the two opinions, the first opinion is based on the Prophet PBUH who
prohibits transactions with two prices in the contract. Legal Issues in Murabahah Some issues
related to legal aspects that often arise in murabahah transactions include those related to the
delivery of goods, risks, guarantees and taxes.
Delivery of Goods The delivery of goods that are traded in Islamic law is an obligation. The
sale and purchase agreement is considered not to meet the conditions (fasid) and can be
cancelled if the object of the contract is not handed over. An agreement that is not accompanied
by the submission of the object of the nakad is considered gharar. b. Risks on Goods and
Payments In the form of bai' al-murabahah financing, LKS faces risks, among others, related to
goods and payments. Regarding the risk of goods is the existence of damage to goods as an
object of exchange.it seems that the consideration of the jurists is also in line with existing laws,
such as in the Civil Code. According to Prof. Subekti, by referring to articles 1474, 1475 and 1454
of the Civil Code, the seller has the main obligation, namely to hand over the goods and bear
them. Handover is a transfer of goods that have been sold under the power and belonging of the
buyer. The risk is related to payment, namely that the customer does not make a payment either
partially or fully according to the payment schedule. Sharia avoids this risk, among others, by the
existence of collateral. c.
Collateral Collateral is a way to ensure that the rights of creditors / facility providers are
not violated and avoid improperly eating other people's property. d. Value Added Tax (VAT) Based
on the Letter of the Director General of Taxes to one of the Sharia Business units of the National
Private Bank, it is stated that murabahah transactions carried out by Islamic banks are included
in the meaning of the delivery of taxable goods as stated in the contents of the letter, among
others: i. Although murabahah transactions are one of the business activities that can be carried
out by Islamic banks, but considering that the underlying principle of the transaction is buying
and selling, then in terms of the current applicable Value Added Tax law, the transaction cannot
be categorized as banking services, but as a trading activity. ii. Therefore, the delivery of taxable
goods in the framework of murabahah transactions, both by suppliers/producers to banks and
by banks to customers, as long as the party making the delivery is the taxable authority who owes
value-added tax. iii. If the goods handed over / traded in murabahah transactions are non-taxable
goods, then the delivery of the goods is not subject to VAT. iv. In the event that in the above
transactions the Bank asks the Customer to provide certain taxable goods as collateral or
collateral, the delivery of the taxable goods referred to by the Customer to the Bank is not the
delivery of taxable goods that are subject to Value Added Tax. 2. BUYING AND SELLING AL-
SALAM Bai al-salam or abbreviated as salam is also called salaf in language meaning ordering or
buying and selling by placing an order in advance. Fiqh scholars give various definitions of bai al-
salam, including: selling an item whose delivery has been postponed, or selling an item whose
characteristics are clear with early payment of capital, while the goods are handed over at a later
date. The scholars of Shafi'iyah and Hanabilah define: an agreed contract to make something
with certain characteristics by paying the price first, while the goods are handed over later.
Malikiyah scholars define: buying and selling whose capital is paid first, while the goods are
handed over according to the agreed time. According to the National Sharia Council, Salam is the
buying and selling of goods by ordering and paying prices in advance with certain conditions.
According to Bank Indonesia, salam is a contract for the sale and purchase of ordered goods
(muslam fiih) between the buyer (muslam and the seller (muslam ilalih) The specifications and
prices of the ordered goods are agreed at the beginning of the contract and payment is made in
full advance, If the bank acts as a muslam then orders to another party to provide goods (muslam
fiih) then this is called parallel salam. From this definition, it can be concluded that buying and
selling as-salam is a process of buying and selling ordered goods with clear criteria, payment is
made in advance while the delivery of goods is carried out at a later date. Thus the elements of
buying and selling greetings are: a.
Buying and selling goods is done by order. b. The specifications of the goods ordered are
clearly the criteria c. Payment is made at the time of the contract/in advance in full, and d. Goods
are handed over in the future The buying and selling of as-salam (bai al-salam) is sharia in Islam
based on the words of Allah and the Hadith of the Prophet PBUH. In the Qur'an, among others, it
is found in surah Al-Baqarah (2) verse 282, which means: O you who believe, if you do not buy it
in cash for the specified time, then write it down. Hanafiyah scholars state that the pillars of
buying and selling greetings are only ijab and qabul. The pillars of buying and selling salam
according to the number of scholars other than hanafiyah, consist of buyers of muslam, sellers
(muslam ilaih), capital or money (ra'sul maal al-salam), goods (muslam fih), and ijab qabul
(shighat) speech. Parallel Salam/Tiered Parallel Salam, which is to carry out two bai al-salam
transactions between the bank and the customer and between the bank and the supplier or other
third party simultaneously. In other words, if the bank acts as a seller and then orders the other
party to provide the ordered goods by way of greetings, then that is called parallel greetings. This
parallel greeting is permissible on the condition that the second contract is separate from, and
not related to the first contract. This is as affirmed in Fatwa DSN-MUI NO: 05/DSNMUI/IV2000
concerning the buying and selling of greetings.
General provisions of the contract 1. Cancellation of the contract Cancellation of the
contract with a refund of the purchase money, according to the majority of scholars, is possible
in the salam contract. Full cancellation of the delivery of goods (muslam fihi) can be done as a
substitute for the repayment of all salam capital that has been paid. 2. Submission of muslam
fihi before or on time The seller (muslam ilaih) must hand over the goods (muslam fihi) on time
with quality and quantity according to the agreement. The scholars differ in opinion on whether it
is permissible for the seller (muslam ilaih) to submit a fihi muslam that is different from the type
that has been agreed. The seller (muslam ilaih) can submit the muslam fihi earlier than agreed,
with the following conditions: a) The quality and quantity of the muslam fihi have been agreed b)
The quality and quantity of the muslam fihi is not higher than the agreement. c) The quality and
quantity of the fihi muslam is not lower than the agreement. d) If all or part of the fihi muslam is
not available at the time of submission, the muslam has two options. First, cancel the contract
and ask for the money back. Keuda, wait until the fihi prayer is available. The majority of scholars
allow the transfer, arrest, or use of the fihi muslam as collateral. This is possible, especially if the
purchase of goods is made on credit. Risks and Benefits Based on its parallel nature, bai al-salam
contains risks in addition to having benefits. Some of the risks that must be anticipated by Islamic
banks in bai al-salam financing include: a. The occurrence of default, namely that the customer
cannot bring the ordered goods due to negligence or deception. b. Goods purchased by the bank
are not sold, because the bank cannot find a buyer from the greeting goods c. The price of the
goods when delivered may be lower than the price agreed with the seller, so that the price drops.
The benefit of bai al-salam is the price difference obtained from the customer and the selling
price to the buyer. 3. BUYING AND SELLING ISTISHNA Istishna' means to ask to be
made/ordered. An agreement that contains the demand that the craftsman/expert (shani) make
an order with special characteristics. Thus, istishna is a sale and purchase between the orderer
and the recipient of the order, where the specifications and price of the goods are agreed upon
at the beginning, while the payment is made in stages according to the agreement. The istishna
contract is included in the sale and purchase contract, not the ijarah contract (wage-wage or rent
to hire services). The object of the contract and work is charged to the seller of services (shani)
and the price of the goods can be paid later.
There are 4 (four) pillars of Istishna, namely: a. Booker ( mustashni) b. Seller or maker
(shani) c. Goods (mashnu) d. Statement of agreement (shighat ijab qabul) Fiqh scholars state
that because the legal basis of istishna is disputed by scholars, in practice istisha transactions
need to be carried out strictly which meet the following conditions: a. The criteria for the object
of the contract must be clear b. The object itself is in accordance with the needs of the
community c. The duration of the order must be clear The nature of the istishna contract among
the scholars of the hanafi school there are two opinions, the first is that the istishna contract is
not binding for both parties. This means that the producer or consumer may cancel this contract
unilaterally, before the 'itishna' contract is seen by the customer. The Difference Between
Istishna and Salam Basically, the istishna contract is similar to the buying and selling of salaam
in terms of its existence as bai al-mmadum and is permissible because it has socialized and aims
to meet the needs of the community. The difference between istishna and salam is as follows: a.
The contract of buying and selling greetings is binding while istishna is not binding, according to
the majority of scholars, so the contract of buying and selling greetings cannot be canceled
unilaterally with istishna can be canceled unilaterally. b. The contract of buying and selling
greetings is required to submit the price of the goods ordered after the agreement is made, but in
the istishna contract this is not the case. c.
The contract of buying and selling greetings requires a certain grace period while in the
istishna contract this is not the case. d. The object of the contract in the sale and purchase of
greetings according to the Hanafi school is in the form of a debt that must be settled and the
object is a type of existing goods. In banking practice, this istishn principle can be done in a way
where the bank orders goods to producers according to customer needs. In the istishna
agreement between the bank and the customer, the bank as a seller is not required to provide
services to support the production of goods that have been ordered. 4. RENT RENTING (IJARAH)
The word ijarah in language means al-ajru, namely "reward for a job" (al-jazau'alal'amal) and
reward (tsawab). The word ijarah can also be said to be a name for al-ujrah which means wage or
rent (al-kara-a). In addition, another language of the alajru is "ganti" (al-iwadh), whether the
replacement is accepted by being preceded by an agreement or not. The word ijarah in linguistic
development is further understood as a form of "akad", which is a contract of ownership of
various benefits in exchange (al-aqdu alal manafi bil iwadh) or a contract of ownership of benefits
in exchange (tamlik al-manfaah bil iwadh). According to the fatwa of the National Syriah Council
(DSN), ijarah is a contract for the transfer of use rights (benefits of a good or service within a
certain time through the payment of rent or wages, without being followed by the transfer of
ownership of the goods themselves. Meanwhile, according to Bank Indonesia, Ijarah is a lease
for the benefit of a good or service between the owner of the rental object and the tenant to get a
reward in the form of rent or wages for the owner of the rental object. Thus, it can be concluded
that ijarah is a contract for the transfer of beneficial rights to goods or services through the
payment of rental wages, without being followed by the transfer of ownership of the goods
themselves. According to the majority of scholars, the pillars of ijarah are as follows: a. The
perpetrator of the contract b. Shighat c. Object of the lease/benefit and rent/wage contract
(ma'qud alayh) The conditions of Ijarah are: a. Both parties who have a contract agree that they
are willing to perform the ijarah contract b. The benefits that are the object of ijarah must be
known perfectly, so that disputes do not arise in the future. c. The lessee has the right to use the
rented goods, both for themselves and for others by renting or lending. d. The object of ijarah in
the form of services or labor of others (ijarah ala al-amal), is not an individual obligation
(fardhu'ain) for that person such as prayer or fasting. e. The object of ijarah in the form of goods
is something that can be rented. f. The rent or wage reward must be clear, specific and valuable.
PRODUCT CONTRACT SERVICE CONTRACT Islamic banking or Islamic banking is a
banking system developed based on Islamic sharia. The effort to establish this system is based
on the prohibition in Islam to collect or borrow with interest or what is called riba and the
prohibition to make investments for businesses that are categorized as haram where this cannot
be guaranteed in the conventional banking system. The development of Islamic banks in
Indonesia began in the early 1990s. In Indonesia, the pioneer of Islamic banking is Bank
Muamalah Indonesia. Established in 1992, this bank was initiated by the Indonesian Ulema
Council (MUI) and the government and supporters of the Indonesian Muslim Scholars
Association (ICMI) and several Muslim entrepreneurs. Currently, the existence of Islamic banks
in Indonesia has been regulated in Law No. 10 of 1998 concerning amendments to Law No. 7 of
1992 concerning Banking. Therefore, Sharia Banking offers various banking products in
accordance with Islamic sharia and one of them is service products, namely Al-Wakalah is a
contract in Islamic banking transactions, which is a contract (representative) in accordance with
the principles applied in Islamic law, Al-Kafalah is to provide guarantees given by the insurer to
third parties to fulfill the obligations of the second party or those who are covered, In other words,
transferring the responsibility of a person who is guaranteed by holding on to the responsibility of
another person as collateral, Al-Hawalah is a transfer contract where in practice it transfers
debts from the dependents of the person who owes the debt to the dependents of the person
who is obliged to pay the debt (example: debt acquisition institutions), Ar-Rahn, is a contract on
Islamic banking transactions, which is a pawn contract in accordance with sharia, Al-Qardh
(sharf) is one of the contracts contained in the Islamic banking system which is none other than
to provide loans either in the form of money or others without expecting anything in return or
interest (riba. indirectly intending to help non-commercial. 1. WAKALAH (GRANTING OF POWER)
Definition of Wakalah Etymologically, wakalah means submission (al-tafwidh) and maintenance
(al-hifdh). Meanwhile, in terminology, according to Wahbah, wakalah has two meanings, namely
according to the Hanafi madhhab which interprets wakalah as the delegation of a legal action to
another person who acts as a representative. Then, according to the Maliki School, Shafi'i, and
Hambali interpret Wakalah as delegating rights to a person in matters that can be delegated to
others while the person is still alive. Wakalah means the transfer of power by a person / one party
as the first party to another person / party as the second party in matters represented (in this case
the second party) only to exercise something limited to the power or authority given by the first
party. If the power of attorney has been exercised as required, then all risks and responsibilities
for the implementation of the order fully return to the first party or the authorizer. Wakalah can
also mean the surrender, giving of a mandate, or delegation of the Basis of the Law of Eve a. Al-
Quran QS Al-Kahfi (18:19). and thus We awaken them that they may ask questions among
themselves. One of them said, "How long have you been here?". they replied: "We are (here) a
day or a half". said: "Your Lord knows better how long you have been (here). So send one of you
to go to the city with this silver coin of yours, and let him see which is the better food, and let him
bring it to you, and let him be meek, and never tell you to anyone. QS Al-Baqarah (2:283). If you
are on the way (and do not pay in cash) and you do not obtain a writer, then there should be a
dependent item held (by the debtor).
But if some of you believe in others, then let the trustee fulfill his commission and let him
fear Allah his Lord. and do not hide your testimony. and whoever conceals it, then he is the one
who sins in his heart; and Allah knows what you are doing. Surah An-Nisaa (4:35). and if you are
worried that there is a dispute between the two, then send a hakam from the male family and a
hakam from the female family. if the two hakam mean to make improvements, Allah will surely
give taufik to the husband and wife. Indeed, Allah is All-Knowing, All-Knowing. QS Yusuf (12:55).
Joseph said, "Make me the treasurer of the state (Egypt); Actually, I am a person who is good at
guarding, and knowledgeable." b. Al-Hadith Hadith Hadith that can be used as the basis for the
Wakalah contract, including: 1. "That the Messenger of Allah (may Allah's peace and blessings
be upon him) represented Abu Rafi' and an Ansar to represent him in marrying Maimunah bint Al
Harits". HR. Malik in al-Muwaththa'). 2. "Peace can be made among Muslims except for peace
that prohibits what is lawful or that prohibits what is unlawful; And Muslims are bound by their
conditions except those that prohibit the lawful or the unlawful." (HR Tirmidhi from 'Amr bin 'Auf).
c. Ijma The scholars agree with ijma' on the permissibility of Wakalah. Some even tend to sunnah
it on the grounds that it is a type of ta'awun or help on the basis of goodness and piety. Help is
called for by the Qur'an and sent by the Prophet. Pillars and Conditions of Wakalah According to
the Hanafiah group, the pillars of Wakalah are only ijab qabul. According to Jumhur, scholars do
not agree with the views of the hanafiah group. They are of the opinion that the pillars and
conditions of Wakalah are as follows: a. The delegating party (Al-Muwakkil), the delegating
institution / the authorizer, is required to have the right to perform tasharruf in the fields
delegated to him. Therefore, a person will not be legitimate if he represents something that is not
his right. b. The party represents.
(Al-Wakil), The recipient of the power of attorney also needs to have the ability to have a
rule that regulates the process of this wakalah contract. So that legal competence is one of the
requirements for the party represented. c. Matters Represented, The object of wakalah must be
something that can be used as an object of a contract or a work that can be done by others,
matters that are mubah and justified by shari'a', have a clear identity, and are the legitimate
property of the almuwakkil. d. Agreed statement (Ijab-Qobul), This contract becomes valid with
ijab and qabul, but wakalah is not binding (itizam) by itself, but is Jaiz (permissible) if the
authorized giver wishes. Representation in Personal Rights and Buying and Selling Imam Abu
Hanifah divides representation in buying and selling in two forms, namely: a. representation in
general, occurs when the person representing does not specify the type and quantity of goods to
be bought or sold. b. Representative, in particular, is a representative that is carried out by clearly
indicating the type and quantity of goods to be bought or sold by the representative. If the
representative is related to the issue of buying and selling, then the fiqh scholars distinguish
between: a. representation in general (absolute), that the representative is free to act in the
buying and selling that is represented. b. the representative is limited, the representative must
act in accordance with the limits determined by the person he represents. Cancellation of the
Wakalah Contract a. Permanent Obstruction Power of Attorney If the permanent obstacle power
of attorney (death/death), then the grant of power of attorney is null and void, unless otherwise
agreed. According to the Maliki madhhab, the reasons for the revocation of power are as follows.
1. That the granting of power is null and void for all by the cause of death. 2. That the granting of
power of attorney is null and void on the rights of each of those who know, and is not null and void
on the rights of those who do not know. 3. that the grant of power of attorney becomes null and
void on the rights of the person who is related to the authorized person and with the knowledge
of the authorized person, even though he himself does not know (the death of the person who
gives the power of attorney). b. Dispute Between the Authorized Grantor and the Authorized
Person. If there is a dispute about the loss of the authorized goods, then what is used as a holding
is the words of the person who received the power of attorney accompanied by witnesses. When
the dispute is caused by payment, then what is held is the word of the power of attorney with the
evidence.
If the recipient of the power of attorney commits an act that is considered wrong. While
he thinks that the power of attorney tells him so, then what is used as a handle is the words of the
power of attorney as long as the power of attorney is a trusted person to do the deed. The end of
the Wakalah Akad Wakalah can end due to the following things. a. the death of one of the
shahibul akad (those who contract), or the loss of legal competence. b. the termination of the
activity/work is intended by both parties. c. annulment of the contract by the authorized person
against the authorized person, which is known to the authorized person. d. the authorized person
resigns with the knowledge of the authorized person. e. the loss of ownership of the goods for the
power of attorney. Provisions of Power of Attorney in Laws and Regulations. Based on Article
1792 of the Civil Code, what is meant by power of attorney is an agreement, where a person gives
power or authority to another person who receives it to and on behalf of him to carry out a
business. There are two forms of power, namely: a. In the form of a specific power, it is only about
one or more interests. b. In the form of general power, covering all interests of the power of
attorney. In addition, there is a right of substitution in power, the power of attorney gives the right
to the power of attorney to transfer the power of attorney to another party as his successor in
exercising his power, in this case the responsibility remains with the power of attorney (as long
as the successor speaks) Regarding the expiration of the power of attorney is regulated in Article
1813 of the Civil Code. Regarding irrevocable powers, including in Article 1813 of the Criminal
Code, it is often called absolute power. Application of Wakalah in Sharia Banking The application
of wakalah in Islamic banking can take the form of: a.
Transfer, which is a service provided by banks to represent customers in transferring
funds from one account to another. b. Collection (inkaso), which is to collect securities issued
and receive bill payments, as well as make calculations with or between third parties for the
benefit of customers. c. Custody, which is the storage of movable goods, which is managed by
the bank for the benefit of the customer based on a contract. d. Providing Letter of Credit (L/C)
facilities based on the principles of wakalah, murabahah, mudharabah, musyarakah wadi'ah and
ijarah muntahiyah bit tamlik. e. Trustee, which is carrying out trustee activities based on the
principle of wakalah. f. Factoring, which is the transfer of short-term trade receivables of a
company along with the management of receivables based on wakalah contracts. Application of
Wakalah in Letter of Credit (L/C) a. Background of Letter of Credit as an important instrument in
international trade. Letter of Credit as a conditional payment promise issued by the Bank, and
Bill of Lading (BL) (consignment) as a transportation document. b. Definitions According to article
2 of The Uniform Customs and Practice for Documentary Credits, Publication No. 600 (UCP 600),
L/C means any arrangement, whatever its name or description, is irrevocable and therefore
constitutes a definite undertaking from the issuing bank to honour the appropriate presentation.
According to Bank Indonesia regulation No. 5/6.PBI/2003 and Bank Indonesia regulation No.
10/PBI/2008 concerning Domestic Documented Letters of Credit. Domestic Documented Credit
Letter (SKBDN) or commonly known as Domestic Letter of credit (L/C) is any written promise
based on the written request of the Applicant that binds the Issuing Bank. According to the Fatwa
DSN-MUI No: 34/DSN-MUI/IX/2001, dated September 14, 2002 AD concerning Letter of Credit
(L/C) of Sharia Imports and the DSN-MUI Fatwa No: 35/DSNMUI/IX/2001, dated September 14,
2002 AD concerning the letter of credit (L/C) of Sharia Exports. That the Sharia Import Letter of
Credit (/C) is a statement that it will pay to the exporter (beneficiary) issued by the Bank (issuing
bank) for the benefit of the importer with the fulfillment of certain requirements in accordance
with sharia principles. Meanwhile, a sharia export Letter of Credit (L/C) is a statement that will
pay the exporter issued by the bank to facilitate export trade with the fulfillment of certain
requirements in accordance with sharia principles. c. Application of Wakalah Contract on Sight
L/C and Usance L/C 1. Sight Letter of Credit (L/C) i. With a Marginal Deposit of 100%, the
Customer in need of opening a Sight L/C for the purpose of importing goods provides a guarantee
deposit of 100% of the nominal L/C. Regarding the Bank's activities of opening and issuing L/C
for the benefit of the customer based on the principle of wakalah bil ujrah, the Bank obtains fees
(ujrah) and administrative fees from the customer. ii. Without Marginal Deposit or with a Deposit
of Less than 100%, the Customer deposits less than 100%, then the Sight L/C sanction trank,
with the principle of wakalah, is accompanied by the signing of a financing facility agreement to
maintain the possibility that the Customer will not be able to pay off his obligations when the
document arrives. These facilities can be carried out with applicable principles, including
Musyarakah, Mudharabah, Murabahah, Salam and istishna, and Ijarah muntahiyah. 2. Usance
letter of Credit (Usance L/C) If at the time the money order is due and the customer can pay it,
the principle of wakalah still applies to the transaction of usance L/C, to maintain the possibility
that the customer cannot pay off when the document arrives,
