Fundamental of Islamic Banking - Principles of Islamic Banking

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Fundamental of Islamic Banking - Principles of Islamic Banking

Transcript of Fundamental of Islamic Banking - Principles of Islamic Banking


2. CONTENTS INVESTMENT AND FINANCING OF HALAL ACTIVITIES PROFIT AND LOSS SHARING VS LENDER- BORROWER RELATIONSHIP TRADE-BASED FINANCING VS INTEREST- BASED INVESTMENT/LOAN PROHIBITION OF RIBA, GHARAR AND MAYSIR PAYMENT OF ZAKAT 2 3. INVESTMENT AND FINANCING OF HALAL ACTIVITIES Impermissible to invest and give financing to related activities Financial serviced based on Riba Gambling and gaming Manufacture or sale of non-halal products Manufacture or sale of tobacco-based or related product Stockbroking or share trading in Shariah non- compliant securities Other activities that conflicts with Shariah Entertainment activities that conflicts with Shariah Conventional insurance that containing of gharar 3 4. PROFIT AND LOSS SHARING VS LENDER-BORROWER RELATIONSHIP PROFIT LOSS SHARING First Tier Between bank and depositor The depositor are considered to be provider of the capital (Rabb al mal) The bank functions as a working partner or manager of funds (mudarib or amil) Second Tier Between bank and entrepreneur The entrepreneur is the manager of fund The bank functions as provider of capital LENDER-BORROWER RELATIONSHIP The relationship between a lender and a borrower is governed by a loan contract between them. Such a contract would specify all the obligations of the two parties in every possible future contingency. With respect to: The amount of repayment The interest rate on the remaining debt. A possible adjustment in the collateral required by the lender. The actions (in particular investment decisions) to be undertaken by the borrower. 4 5. TRADE-BASED FINANCING VS INTEREST-BASED INVESTMENT/LOAN TRADE-BASED FINANCING CHARACTERISTICS INTEREST-BASED LOAN The bank has to purchase the requested commodity before selling it to the customer. Legal Nature of promise The customer is required to make a unilateral promise to buy the commodity from the bank, before the bank makes the purchase. Price includes a known profit or mark-up. The mark-up in murabahah is part of the sale price, it is set only once and then it does not change overtime. Profit Rate Profit comes from the interest rates. Murabaha financing products are fixed-rate products. The rate, once determined for a given contract, is not allowed to float with changes in the interest rates or any other rate. Fixed and Floating rate Many conventional banking products are floating-rate products. The rates on such loans are automatically adjusted upwards or downwards in line with changes in interest rates. 5 6. TRADE-BASED FINANCING VS INTEREST-BASED INVESTMENT/LOAN TRADE-BASED FINANCING CHARACTERISTICS INTEREST-BASED LOAN Murabaha does not allow such rescheduling as no additional amount can be charged for the same. The amount of the murabahah price remains unchanged. Rescheduling of payment Loan rescheduling is accompanied by additional interest charge for the timing differences. If it is given voluntarily, it is allowed. The rate of discount must not be pre-specified in the murabahah contract as a condition. It is not a right that the debtor can claim. Rebate on early payment Conventional financial system grants the borrower a discount or rebate if the customer decides to pay earlier than the scheduled time. 6 7. Unlawful gain derived from the quantitative inequality of the counter-values in any transaction purporting to effect the exchange of 2 or more species which belong to the same genus(category) and are governed by the same efficient cause(illah) Definition of Riba on Trade transaction A predetermined excess or surplus over and above the loan received by the creditor conditionally in relation to a specified period Definition of Riba on Loan transaction PROHIBITION OF RIBA 7 8. Al-Quran Al-Baqarah: 275 EVIDENCE 8 9. Hadith: From Jabir: The Prophet saw cursed the receiver and the payer of usury, the one who records it and the two witnesses to the transaction and said: They are all alike (in guilt and sin). From Abi Said al-Khudri: The Prophet saw said: gold for gold, silver for silver, wheat for wheat, barley for barley, dates for dates, salt for salt, like for like, and hand to hand. Whoever pays more or takes more has indulged in riba. Take taker and the giver are alike (in guilt). EVIDENCE 9 10. ELEMENTS OF RIBA Excess or surplus over and above the loan capital Bargain to be conditional on the payment of a predetermined surplus Determination of this surplus in relation to time 10 11. REASONS FOR PROHIBITION OF RIBA To prevent injustice between contracting parties Exploit the poor/ creditors An exploitations of people ignorance over the types of commodities involved in transaction An exploitation of people needs. Thus, they have no choice but to be involved in Riba 11 12. CATEGORIES OF RIBA Categories of Riba Riba al-Buyu` (Trade Transaction) Riba al-Fadl Riba al-Nasiah Riba al-Dayn (Loan Transaction) Riba al-Qard Riba al- Jahiliyah 12 13. CATEGORIES OF RIBA RIBA AL-BUYU` Riba al-Fadl Also known as Riba al-buyu that is riba by excess. It applies to six items : gold, silver, date, raisin, wheat and barley and the like of them. Riba al-Nasiah Its occurs whenever the creditor advanced loan on some monthly interest in addition to the principal sums. Increase due time On other words, this stipulated interest which the lender takes from the borrower to pay back the capital. Second opinion- Any delay in the exchange of the ribawi items from the same type and category RIBA AL-DAYN Riba al-Qard It is riba in debt or out of lending and borrowing. It was originated from the transaction of a loan , and it is interest or payment charged due to the loan given. On the other words, it is the extra amount over the above principal of the loan. Riba al-Jahiliyah It is Riba in loan. It is when a loan contract is made or at rescheduling a previous debt. It is take place only in debts created via lending or extended to a new maturity via rescheduling. 13 14. RIBAWI ITEM Ribawi Item Gold Salt Silver WheatBarley/Oat Dates Salt 14 15. 15 ISLAMIC RULINGS ON RIBA IN TRADE Category Type Exchange Quantity Items 1 Same category Same type Spot exchange Equal in quantity Regardless of quality Gold with Gold, Wheat with Wheat 2 Same category Different type Spot exchange Inequality is permitted Equality is not a condition God with Silver Wheat with Rice Salt with Dates 3 Different category Different type Delayed is permitted Inequality is permitted Time and Quantity Factor is not a condition Gold with Wheat RM with Dates 16. 16 ISLAMIC RULINGS ON RIBA IN TRADE Category Type Exchange Quantity Items 4 Ribawi Items and Non- Ribawi Items Delayed is permitted Inequality is permitted Time and Quantity Factor is not a condition RM with vehicles UD with furniture 5 Between 2 Non- Ribawi Items Delayed is permitted Inequality is permitted Time and Quantity Factor is not a condition Bricks with Sands Cloth with Patrols 17. PROHIBITION OF GHARAR Literally: Deceit, risk, fraud, uncertainty or hazard that may be lead to destruction loss. Technically: When a matter that is concealed by one party. Occurs when a party undertake venture blindly without sufficient knowledge Minor uncertainties can be permitted when there is a necessary Both of contracting parties must have a perfect knowledge regarding to transaction 17 18. PROHIBITION OF GHARAR Sell good that seller is not in position to deliver. Sell unknown pages or known goods against unknown price. Make a contract conditional on a unknown event. Sell good on basis of false description. Sell good without proper examination. Gambling. Examples of Gharar related transaction: 18 19. TYPES OF GHARAR Gharar Yasir This type of gharar is tolerate and will not invalidate a contract. Gharar yasir may include the following cases: The uncertainty is slight or trival Contract is unilateral or charitable (al tabarruat) such as gift or bequest There is a public need for the transaction or contract (consideration of maslahah) Gharar Fahish This type of gharar is not tolerate and may result in contract voidability 19 20. PROHIBITION OF MAYSIR Refers to the easy acquisition of wealth by chance, whether or not it deprives the others right. Qimar means the game of chance in which one gains at the cost of others. Issues that related to gambling: Contest using SMS The prize winning tickets Horse racing Lottery Crossword puzzles 20 21. PAYMENT OF ZAKAT Meaning of zakat To grow To purify To improve Purpose of Zakat The foremost and primary is to distribute the wealth of the community among the poor Removing the love of wealth from ones heart, a spiritual disease that could be detrimental to ones Iman. Thus, it is a form of Tazkiya (self-purification). Giving in the path of Allah acknowledging that whatever wealth one possesses is in reality the Almightys, and giving a monetary sacrifice for ones lord. Prevention of monopolies in society. 21 22. BENEFIT OF ZAKAT Enhances Volume of Production When Zakat is collected and distributed among the poor they spend it on various consumer goods which increase the demand of various products of industries which increases production of goods. Discourages Hoarding Zakat discourages hoarding because it is levied on hoarded wealth. Raises Savings Zakat is paid out of the accumulated wealth. the wealth owner must in saving ratio, in order to prevent the level of his wealth from decreasing. Zakat increase level of income Zakat increase level of income due to circulation of wealth in the economy. Reduces inequality of Wealth Zakat is distributed among the poor from rich people so it reduces inequality of wealth. Zakat ends poverty as Zakat is given to poor. Redistribution of National Income. 22 23. CONDITION OF ZAKAT Zakat Performer Muslim Every Muslim who is of a certain age and owns enough assets is required to pay zakat. Zakat Assets Full ownership. A Muslim only required to pay zakat if he or she has full and legal ownership of an asset. Its payable only on those assets acquired for the purpose of creating or generate wealth. Zakat need only be paid on those assets that exceed a minimum value. Minimum value is termed Nisab. Completion of Haul Haul is defined as the completion period for zakat asset. The length of time: One Islamic Hijri year (1 year Hijri=354.5 days, 1 year Solar= 365.25 days) Zakat only payable on asset that have been held for at least this period. 23 24. TYPES OF ZAKAT Zakat Fitr Zakat Fitr is a one off payment that is made once in every Muslim Hijri calendar year at any time between the first day of the month of Ramadan and the first day of Shawal. All Muslims are obliged to pay this, regardless of their age, status or wealth. The amount of zakat payable is approximately 3kg of staple food in the relevant country or an amount of money that is equivalent to the price of the food. Zakat Al-Mal (on wealth) Zakat al-Mal is an annual payment based on the amount of wealth owned by a Muslim individual or organization. This payment is obligatory upon any Muslim individual or organization that has completed the requirement of Nisab (minimum taxable amount) and Haul (one Muslim Hijri calendar year). The payment is 2.5% out of the total wealth deemed for zakat. Zakat al-Mal can be subdivided into zakat on: Business, Rental Income, Personal Income, Savings, Gold and Silver, Shares, Livestock, Crop 24 25. BENEFICIARIES OF ZAKAT 1. The poor (Faqir/Fuqara) 2. The needy (Miskeen) 3. The administrators of zakat (Amil) 4. The sympathizer (Muallaf) - Those who are inclined to enter or have already converted to Islam. 5. To free slaves (Riqab) 6. Those who are in debt (Gharimin) Zakat can be used to pay off the debts of a person who has borrowed to pay for basic necessities or those on financial problem. 7. For the causes of Allah (Fisabilillah) Zakat can be use to finance any form of struggle or work for the love of Allah. 8. Those who are stranded during a journey (Ibnus Sabil) Zakat can be used to help a traveller facing difficulties in continuing his journey. 25 26. ISLAMIC LEGAL MAXIM ( ) Qawaid fiqhiyyah or Legal maxims are general rules which can be applied in various cases that come under common rulings. Plays great role in the formation of Islamic law because they are uses as principles to deduce rules of fiqh. Legal maxims are indeed general rules of fiqh, which can be applied in various cases that come under the common rulings e.g.. transactions, munakahat, evidence etc. Have a great role in the formation of Islamic law because they are used as guidelines in finding the rules of fiqh but cannot be accepted as sources of shariah. These maxims have solved most of the minor rules of fiqh and without them these minor rules will have no standing ground which will make it hard to solve 26 27. 27 FIVE MAJOR MAXIMS Acts Are Judged By The Intention Behind Them Certainty Is Not Dispelled By Doubt Hardship Begets Facility Harm Must Be Removed Custom Is The Basis Of Judgement 28. ACTS ARE JUDGED BY THE INTENTION BEHIND THEM ( ) An act of any human being is judged in the light of intention or the purpose it seeks to have effects. This means that the effect to be given to any particular action or transaction must be in accordance with the intent underlying such action or transaction. E.g.: Banks declare their policy of financing customers on non-interest bases it would be necessary to do so and not merely continue the same practice and seeking to rationalize it in Islamic terms such as mudharabah etc. 28 29. CERTAINTY IS NOT DISPELLED BY DOUBT ( ) It is discusses about the principle that should be followed if there is doubt in any matter particularly in matters pertaining to Islamic law. This means that a fact established by law or proven with evidence will remain so, until there is another certainty that removes it. E.g.: A partner has no right to assume a minimum rate of profit earned by his business partner and claim his share in that profit as different from amount stated to have been actually earned by the partner. 29 30. HARDSHIP BEGETS FACILITY ( ) The maxim indicates that any ruling which implementation causes hardship to a person or the action is unable to be performed by a particular person for a specific acceptable reason, then there are alternative and ways out that can be resorted to in order to overcome the difficulties and hardship. Hardship- refer to surpass the normal limit and ability of a person such as travel/sickness/ dharurah etc. E.g.: If the court orders the sale of assets of a negligent debtor to pay his creditors, it must begin with the sale of his movable goods if this would suffice to clear his debt, before selling his real property. 30 31. HARM MUST BE REMOVED ( ) The scholars have classified harm into two categories : Harm which is inflicted intentionally in order to cause damage. This kind of harm is forbidden and the perpetrator shall bear the consequences of his action. Harm which is cause unintentionally without any intention to cause harm or damages to others. E.g.: A buyer of perishable goods absents himself without taking possession of the purchased goods. The seller , in order to protect himself and the buyer from loss, has a right to unilaterally revoke the contract of sale and sell the goods to some other party. 31 32. CUSTOM IS THE BASIS OF JUDGEMENT ( ) This maxim means the practices of the people whether in their actions or sayings, regardless of whether they are general practices of the people or the practices of certain groups of people. E.g.: A person authorizes another to sell something on his behalf without laying down conditions as to sale price and unit of currency, the agent will be treated to be bound by conventional rules of charging a reasonable price and prevalent currency. 32 33. END OF CHAPTER33