ISLAMIC BANKING AND FINANCE Mahyuddin Khalid e m k a y @ s a l a m . u i t m . e d u . m y PRINCIPLES OF ISLAMIC BANKING
ISLAMIC BANKING AND FINANCE
Mahyuddin Khalid
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PRINCIPLES OF ISLAMIC BANKING
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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
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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
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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.
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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.
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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.
• 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
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Al-Quran Al-Baqarah: 275
EVIDENCE
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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
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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
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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
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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
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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.
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RIBAWI ITEM
Ribawi
Item
Gold
Salt
Silver
Wheat Barley/Oat
Dates
Salt
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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 RiceSalt with Dates
3 Different category
Different type
Delayed is permitted
Inequality is permitted
Time and Quantity Factor is not a condition
Gold with WheatRM with Dates
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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 vehiclesUD with furniture
5 Between 2 Non-Ribawi Items
Delayed is permitted
Inequality is permitted
Time and Quantity Factor is not a condition
Bricks with SandsCloth with Patrols’
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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
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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:
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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 tabarru’at) 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
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PROHIBITION OF MAYSIR
Refers to the easy acquisition of wealth by chance, whether or not it deprives the other’s 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
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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 one’s heart, a
spiritual disease that could be detrimental to one’s 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 Almighty’s, and giving a monetary sacrifice for one’s lord.
Prevention of monopolies in society.
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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.
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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.
It’s 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.
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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
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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.
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ISLAMIC LEGAL MAXIM ( القواعد(الفقهية
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 them.
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FIVE MAJOR MAXIMS
Acts Are Judged By The Intention Behind Them
األمور بمقاصدها
Certainty Is Not Dispelled By Doubt
ال اليقينبالشك يزال
Hardship Begets Facility
المشقة تجلب التيسير
Harm Must Be Removed يزال الضرار
Custom Is The Basis Of Judgement
العادة محكمة
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ACTS ARE JUDGED BY THE INTENTION BEHIND THEM( بمقاصدها (األمور
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.
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CERTAINTY IS NOT DISPELLED BY DOUBTبالشك ) يزول ال (اليقين
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.
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HARDSHIP BEGETS FACILITY( المحظورات تبيح (الضرورات
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.
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HARM MUST BE REMOVED( يزال (الضرار
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.
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CUSTOM IS THE BASIS OF JUDGEMENTمحكمة ) (العادة
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.
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