Kureshi Hussein

Contracts and Deals in Islamic Finance


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risk, in that Party B may be unable to make the required payment in 90 days. Party A can demand that some other asset be held as collateral with Party A to ensure repayment. The asset here plays a crucial function.

      If this transaction seems charged with controversy for the reader, let it be no surprise as it has been so for more than 1,200 years. Scholars have seen it as an attempt to circumvent the contract of riba; others have seen it as an alternative to riba, depending on the intentions of the parties involved. This contract, however, if deemed permissible, allows economic units short of liquidity but with an availability of fixed assets to use their assets to raise funds or liquidity. This need is fundamental in any business, no less a bank that is in a perpetual state of asset/liability mismatches.

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      1

      Wilfred Cantwell Smith, The Meaning and End of Religion (Minneapolis: Fortress Press, 1991 edition).

      2

      Verses from the Quran regarding the prohibition of riba:

      30:39: “The usury that is practiced to increase some people's wealth, does not gain anythin

1

Wilfred Cantwell Smith, The Meaning and End of Religion (Minneapolis: Fortress Press, 1991 edition).

2

Verses from the Quran regarding the prohibition of riba:

30:39: “The usury that is practiced to increase some people's wealth, does not gain anything at God. But if you give to charity, seeking God's pleasure, these are the ones who receive their reward many fold.”

4:161: “And for practicing usury (interest), which was forbidden, and for consuming the people's money illicitly, We have prepared for the disbelievers among them painful retribution.”

3:130: “O you who believe, you shall not take usury (interest), compounded over and over. Observe God that you may succeed.” and has been interpreted by scholars as taking of any excess money from a borrower when a loan is repaid. A loan is specifically defined as a contract whereby one party lends money to another party for a specific period of time, for example, borrowing $1,000 for 90 days and repaying $1,200.

3

Legality found in the Quran, surah Al-Baqarah verse 275, “However, God permits commerce, and prohibits usury (interest).”

4

This is mentioned in the Quran, chapter 3, verse 180: “Let not those who withhold and hoard God's provisions think that this is good for them; it is bad for them. For on the Day of Resurrection they will carry their hoardings around their neck”; and also in a hadith, which narrates the saying of Prophet (saw): “Nobody hoards except the wrongdoer.” Al-Qazveeni, Muhammad bin yazeed, sunanibn-e-maajah, Berut: Dar-ul-fikr, 1999, H:2153.

5

Abu Huraira (Allah [sat] be pleased with him) reported the Prophet (saw) as saying: “Do not meet the merchant in the way and enter into business transaction with him, and whoever meets him and buys from him that when the owner of the goods comes into the market, he has the option to declare the transaction null and void.”

6

Muslims are prohibited in selling goods before possessing them. The Prophet (saw) mentioned, “Whoever buys cereals shall not tell them until he has obtained their possession.”

7

The Holy Quran, 17:34, “Come not nigh to the orphan's property except to improve it, until he attains the age of full strength; and fulfil (every) engagement, for (every) engagement will be enquired into (on the Day of Reckoning).”

8

Edward Said, Orientalism (New York: Pantheon Books, 1978).

9

David P. Forsythe, Encyclopedia of Human Rights, vol. 1 (New York: Oxford University Press, 2009).

10

Natalie Schoon, “Islamic Finance – A history,” Finance Services Review, 2009.

11

Islamic Development Bank, www.isdb.org, accessed June 26, 2014.

12

Bank Negara Malaysia (BNM) (2013), Tawarruq (Shariah Requirements and Optional Practices) Exposure Draft December 2013, www.bnm.gov.my/documents/SAC/13_Tawarruq.pdf, accessed July 2014.

13

Islamic Financial Services Board, www.ifsb.org, acessed June 10, 2014.

14

Muhammad Yusuf Saleem, Islamic Commercial Law (Hoboken, NJ: John Wiley & Sons, 2013).

15

Sunan Al-Tirmidhi 2/514.

16

Muhammad Ayub, Understanding Islamic Finance (Hoboken, NJ: John Wiley & Sons, 2007).

17

Abu Ishaq al-Shatibi, Al-Mufawaqat fi usul al Shari'ah, vol. 4, 435–436. (Cairo: al-Maktabah al-Tijariyyah al-Kubra, 1983).

18

Imam Shafi–Al–Umm. Extracted from Shariah Rules in Financial Transactions course SH1003, 2013, INCEIF.

19

Shariah Rules in Financial Transactions, course SH 1003, 2013, INCEIF.

20

Muhammad Yusuf Saleem, Islamic Commercial Law (Hoboken, NJ: John Wiley & Sons, 2013).