Al huda presentation on ijara by mehmood shafqat

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IJARAH

Presented by:

MAHMOOD SHAFQATJoint Director

Islamic Banking Department

The views expressed in this presentation are those of the authorand do not necessarily represent State Bank of Pakistan

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Overview

Introduction and Brief Perspective of Islamic Banking

Ijarah Essentials of Ijarah AAOIFI Standard Mechanism and Usage Risks and Issues Some Common Misconceptions

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BRIEF HISTORY OF ISLAMIC BANKING IN PAKISTAN

Efforts for economy wide elimination of Riba started during 1970s and most of the practical steps were taken in early 1980s, which are considered as pioneering work in the Muslim world.

Banking and other relevant laws and regulations were amended to facilitate interest free banking system.

Two important areas kept outside the purview of interest free banking system mainly due to lack of research in these fields, viz. Government borrowings (both local and foreign) and foreign exchange.

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FAILURE OF PREVIOUS EFFORTS

Reasons Absence of Shari’ah compliance mechanism in financial

institutions. Non-availability of Shari’ah compliant government securities. Ineffective enforcement of contracts and inefficient system for

early recovery. Ineffective code of conduct for professionals. Lack of continued research and development in the field of

Islamic finance and economics. Inadequate training to the staff of SBP and banks. Disoriented education system devoid of Islamic principles. Lack of public awareness about Islamic economic system. Adoption of free market economic (capitalistic) policies. Social and cultural factors. Weak Political resolve of successive governments for

Islamization of economy.

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CURRENT STRATEGY Gradual approach for Transformation of

economy Full fledged Islamic banks be established

in Private sector Islamic banking Subsidiaries in existing

banks be allowed Stand alone branches for Islamic banking

be allowed in existing banks

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POLICY OBJECTIVES

Introduce, promote and implement Islamic Banking in

Pakistan as a parallel banking system comparable and compatible to conventional banking

system and

Shariah compliant

In the long run let people “vote through their wallets”

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SBP APPROACH

Parallel banking system offering users similar Functionality & Profitability In line with their beliefs

Provide a level playing field to Islamic Banking Regulations Taxation

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SBP APPROACH

Parameter based vs. Straight jacketed system Model vs. Standard Agreements Essentials of Islamic Modes PLS Mechanism Modes of Finance

Shariah compliance mechanism Essentials of Islamic modes Shariah Advisor Internal Shariah Review Report of Shariah Advisor SBP Shariah Compliance Inspection SBP Shariah Board

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INDUSTRY PROGRESS Sept 2003 One full fledge bank and one conventional bank with

one stand alone Islamic banking branch Currently four full fledge Islamic banks and 11 conventional banks

with Islamic Branches. Islamic banking is available through over 100 branches in 18

cities of all four provinces of Pakistan. Meezan Bank, with 39 branches in 12 cities of Pakistan Al Baraka Islamic Bank with 9 branches in 5 cities. Dubai Islamic 6 branches and BankIslami 5 branches 11 Conventional banks (MCB, HBL, Bank of Khyber,

Soneri, Bank Alfalah, Bank Al Habib, Habib Bank AG Zurich, Metropolitan Bank Standard Chartered Bank, Prime and Askari) with 48 Islamic Banking Branches (IBBs).

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INDUSTRY PROGRESS

Islamic Banks in the pipeline:

Emirates Global Islamic Bank and First Dawood Islamic Bank issued License

Conventional Banks with IBBs in pipeline

National Bank of Pakistan

UBL

Application of ABN Amro under consideration

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Rs. in Billion

Industry Progress and Market Share

DescriptionMar.06

Dec.-05

Dec-04 Dec-03

Total Assets (Rs. in Bn) 79 72 44 13

%age of Banking Industry 2.2% 2.1% 1.4% 0.5%

Deposits (Rs. in Bn) 54 50 30 8

%age of Banking Industry 2% 1.9% 1.2% 0.4%

Financing. & Invest. (Rs. in Bn) 55 48 30 10

%age of Banking Industry 2% 1.8% 1.3% 0.5%

No. of Branches 79 70 48 17

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SBP Shariah Board

A central Shariah Board established at SBP and is fully functional Current membership consists of five persons

Two Shariah scholars A Chartered accountant A lawyer A banker representing the industry as well

as SBP A consultant to the Shariah Board, a scholar from

Qum.

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The size of Islamic Financial Industry has crossed US$

250 Bln. and its growing annually @ 15% per anum.

Over 70 countries have Islamic Banking Institutions

Muslim countries including Bahrain, UAE, Saudi Arabia,

Malaysia, Brunei, Pakistan, etc.

Non-Muslim countries including USA, UK, Canada,

Switzerland, Singapore, South Africa, Australia, etc.

Global PerspectiveGlobal Perspective

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In Feb 1999, Dow Jones introduced the Dow

Jones Islamic Market Index (DJIM) of 600

companies world wide whose business

complies with Islamic Shariah laws

At present there are more than 105 Islamic

Funds operational through out the world with a

total fund base of over USD 3.50 billion


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Governments of Bahrain ,Malaysia and

Pakistan have issued Islamic Bonds (Sukuk)

in order to facilitate Islamic Banks in

managing their liquidity.

Issuance of these bonds has also paved the

way for Shariah compliant Government

borrowings.


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IJARAH

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IJARAH (LEASING)

IJARAH AL ASHKAAS

IJARAH AL AMWAL

Ijarah (Operating Lease)

Ijarah Muntahia Bittamleek

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IJARAH (LEASING)

Ijarah is to offer for a consideration the usufruct of a thing of value from which benefit can be derived without consumption, while retaining the ownership of the leased assets and assuming risks pertaining thereto.

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This is a lease that ends with the ownership of the asset.

There are several types of Ijarah Muntahia Bittamleek. These are characterized based on the method by which the ownership transfers to the user: For no consideration (through a gift) For token consideration For price specified in the lease For remaining amount (if lease is terminated before

period) Gradual transfer

Ijarah Muntahia Bittamleek

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ESSENTIALS OF IJARAH

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IJARAH (LEASING)

The corpus of leased commodity remains in the ownership of the lessor and only its usufruct is transferred to the lessee.

Any thing which cannot be used without consuming the same cannot be leased out like money, edibles, fuel, etc.

Only such assets which are owned by the lessor can be leased out except that a sub-lease is effected by the lessee with the express permission of the lessor.

Until such time that assets to be leased are delivered to the lessee, lease rentals do not become due and payable

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IJARAH (LEASING)

During the entire term of the lease, the lessor must retain title to the assets, and bear all risks and rewards pertaining to ownership.

If any damage or loss is caused to the leased assets due to the fault or negligence of the lessee, the consequences thereof shall be borne by the lessee.

The consequences arising from non-customary use of the asset without mutual agreement will also be borne by the lessee.

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IJARAH (LEASING)

The lessee is also responsible for all risks and consequences in relation to third party liability, arising from or incidental to operation or use of the leased assets.

The insurance of the leased asset should be in the name of lessor and the cost of such insurance borne by him.

A lease can be terminated before expiry of the term of the lease but only with the mutual consent of the parties.

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IJARAH (LEASING)

Either party can make a unilateral promise to buy/sell the assets upon expiry of the term of lease, or earlier at a price and at such terms and conditions as are agreed, provided that the lease agreement shall not be conditional upon such sale.

Alternatively, the lessor may make a promise to gift the asset to the lessee upon termination of the lease, provided the lessee has fulfilled all his obligations.

However, there shall not be any stipulation in the lease agreement purporting to transfer of ownership of the leased assets at a future date.

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IJARAH (LEASING)

The amount of rental must be agreed in advance in an unambiguous manner either for the full term of the lease or for a specific period in absolute terms.

Assignment of only the lease rentals is not permissible except at par value.

Contract of lease will be considered terminated if the leased asset ceases to give the service for which it was rented. However, if the leased asset is damaged during the period of the contract but is capable of being repaired, the contract will remain valid.

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IJARAH (LEASING)

A penalty can be agreed ab initio in the lease agreement for delay in payment of rental by the lessee. In that case, lessee shall be liable to pay penalty calculated at the agreed rate in percent per day/annum. However, that penalty shall be used for the purposes of charity.

The banks can also approach competent courts for award of damages, at discretion of the courts, which shall be determined on the basis of direct and indirect costs incurred, other than opportunity cost.

Also, security or collateral can be sold by the bank (purchaser) without intervention of the court.

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AAOIFI SHARIAH STANDARD

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Ijarah and Ijarah Muntahia Bittamleek

Scope.This standard is applicable to operating leases of properties or to Ijarah Muntahia Bittamleek. Whether the institution is the lessor or the lessee. This standard is not applicable to the employment persons (labor contract).

Promise to lease (an asset).It is permissible for the institution to require the lease promisor (customer) to pay a sum of money to the institution to guarantee the customer’s commitment to accepting a lease on the asset and the subsequent obligations, provided no amount is to be deducted from this sum except in proportion to the actual damage suffered by the institution.

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Acquisition of the asset to be leased.For the validity of an Ijarah contract concerning a specified asset, the lease contract should be preceded by acquisition of either the asset to be leased or the usufruct of that asset.

(a) If the asset or the usufruct thereof is owned by the institution, which should in principle be the case, an Ijarah contract may be executed as soon as agreement is reached by the two parties.

(b) however, if the asset is to be acquired from the customer, or from a third party, the Ijarah contract shall not be executed unless and until the institution has acquired that asset.

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Concluding an Ijarah contract. The lease contract is a binding contract which neither may terminate

or alter with out the other’s consent.

The duration of an Ijarah contract must be specified in the contract must be specified in the contract. The period of Ijarah should commence on the date of execution of the contract, unless the two parties agree on a specified future commencement date, resulting in a future Ijarah, that is, an Ijarah contract to be executed at a future date.

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Subject Matter of Ijarah The leased asset must be capable of being used while preserving

the asset, and the benefit from an Ijarah must be lawful in Sharia.

The lessor may not stipulate that the lessee will undertake the major maintenance of the asset that is required to keep it in the condition necessary to provide the contractual benefits under the lease. The lessor may delegate to the lessee the task of carrying out such maintenance at the lessor’s cost. The lessee should carry out operating or periodical (ordinary) maintenance.

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Rules governing lease rentals. In case the rentals is subject to changes (floating

rentals), it is necessary that the amount of the rentals of the first period of the Ijarah contract be specified. It is then permissible that the rentals for subsequent periods be determined according to a certain benchmark.

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Guarantees and treatment of Ijarah receivables. Permissible security, of all kinds, may be taken to secure the

rental payments or as security against misuse or negligence on the part of lessee.

It may be provided in the contract of Ijarah or Ijarah Muntahia Bittamleek that a lessee who delays payment for no good reason undertakes to donate a certain amount or percentage of the rentals due in case of late payment. Such donation should be paid to charitable causes under the co-ordination of the institution's Sharia supervisory board.

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Termination of the Ijarah Contract. The two parties may terminate the Ijarah contract before it

begins to run. It is permissible to terminate the lease contract by mutual

consent but it is not permissible for one party to terminate it except in case of force majeure or there is a defect in the leased asset that materially impairs its use. Termination is also possible when one party secures an option to terminate the contract in which case the party who holds the option may exercise it during the specified period.

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Transfer of the ownership in the leased property in Ijarah Muntahia Bittamleek.

In Ijarah Muntahia Bittamleek, the method of transferring the title in the leased asset to the lessee must be evidenced in a document separate from the Ijarah contract document, using one of the following methods. By means of a promise to sell for a token or other

consideration, or by accelerating the payment of the remaining amount of rental, or by paying the market value of the leased property.

A promise to give it as gift (for no consideration). A promise to give it as a gift, contingent upon the

payment of the remaining installments.

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MECHANISM

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Leasing (Ijara Wa Iqtina)

Another popular instrument – 15% of the transactions

Right available to lessee to purchase

Asset ownership risk with owner; operational risks with lessee

Features close to a financial lease

Used for machinery, equipment, property, vehicles, aircraft etc.

Ownership usually transferred at the end

Financier(Lessor)Financier(Lessor)

Entrepreneur(Lessee)

Entrepreneur(Lessee)VendorVendor

Transfer of assetTransfer of assetBeneficial useBeneficial use

of assetof asset

Payment ofPayment ofpurchase pricepurchase price

Lease rentalsLease rentals

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Ijarah Muntahia BittamleekIjarah Muntahia Bittamleek

The customer approaches the Bank with the request for financing

The Bank purchases the item required for leasing and receives title of ownership from the vendor

The Bank makes payment to the vendor

The customer approaches the Bank with the request for financing

The Bank purchases the item required for leasing and receives title of ownership from the vendor

The Bank makes payment to the vendor

GENERAL MECHANICS

CUSTOMERISLAMIC

BANK

VENDOR

. .Agreement

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Ijarah Muntahia BittamleekIjarah Muntahia Bittamleek

The Bank leases the asset to the customer

The customer makes periodic payments as per the contract

The asset title transfers to the customer based on the method disclosed in the agreement

The Bank leases the asset to the customer

The customer makes periodic payments as per the contract

The asset title transfers to the customer based on the method disclosed in the agreement

GENERAL MECHANICS

CUSTOMERISLAMIC

BANK

AgreementVENDOR

. .

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USAGE OF IJARAH

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IJARAH (LEASING)

Ijarah (Operating Lease) Examples:HousesRent-A-CarAgricultural DurablesAircrafts, etc.

IssuesAsset Price RiskRepair and MaintenanceRunning Expenses (depending upon contract)Credit Risk (Default in rental payment)

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IJARAH (LEASING)

Ijarah Muntahia Bittamleek Examples:

Vehicles Ijarah Financing

Plant and Machinery

Consumer Durables

House Financing

Project Finance, etc.

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RISKS AND ISSUES

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Risks and Practical Issues

Proper documentation Sequence of Documentation in Sale and

lease Back. Time of Transferring asset in Sale and Lease

back Islamic Lease covers the conditions of

Finance Lease as described in IAS 17. Accounting & Tax Depreciation Issues.

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RisksRisks

Credit Risk Rate of Return Risk Customer may decline to enter into Ijarah. Damage to Asset Overdue Rentals Non-Compliance/Violation of contract. Early Termination Asset Price Risk

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Risks and Practical Issues

How to treat insurance cost paid by the Lessor?

Treatment of Security deposits received from customers.

Treatment of Advance rentals. Accounting rule/policy regarding repairs

of Leased assets. Securtization of Asset or Receivables?

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“Islamic banking looks the same as conventional banking”

A halal meat and haram meat may look exactly the same but one is permissible while the other is not

“A fixed rate of return is not permitted under Islamic Shariah”

Fixed return does not make a transaction halal or haram

For example:

• Profit on trading

• Rent on property

Common Misconceptions

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“Murabaha and Ijara are major modes being practiced”

• Modaraba is major mode

“Only Documents certified by Shariah Scholars are necessary for Shariah compliance”

• Execution of documents

Common Misconceptions

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ISLAMIC BANKING

SUGGESTED STRATEGY Take a view Have the right attitude Make an active effort to learn Have a commitment to implement the change

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for You are the Grantor of bounties without measure.

Surah Ali ‘Imran 8

Our Lord let not our hearts

deviate now after You have

guided us but grant us

mercy from Your own

Presence

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Blot out our sins, and grant us forgiveness Have mercy on us You are our Protector Help us against those who stand against faith Surah Al-Baqarah 286

Our Lord! Lay not on us a burden greater than we have strength to bear

Our Lord! Lay not on us a burden Like that which You put on those before us

Our Lord! Condemn us not if we forget or fall into error

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THANK YOU

Ph: 021-9212509, Fax: 021-9212472

Email: [email protected]

http://www.sbp.org.pk/departments/ibd.htm

Al huda presentation on ijara by mehmood shafqat

Documents

ijarah muntahia bittamleek

islamic banking

future date

existing banks

general mechanics

mutual consent

leased assets

leased property