Combination of Contracts - Appendix C (Definitions)

Transcription

1. Shari ’ah Standard No. (25): Combination of Contracts Appendix (C) Definitions Zara`i’ Zara`i’ are the apparently permissible practices used as a means of doing a prohibited act. Therefore, Sadd al-Zara`i’ means prohibition of permissible practices that can be used for committing Shari’ah-restricted acts. However, prohibition in this sense is subject to two restrictions. The first is the existence of a clear intention of the person in question to use the permissible practice for the sake of accomplishing Shari’ah-banned objectives, and the second is that resorting to prohibition should be only after wide spread of such misconduct in the society. Subsidiaries Subsidiary contracts or objectives in financial transactions refer to the consequent contracts or objectives that follow the original ones. The subsidiary status of these contracts or objectives is usually determined according to tradition, practice and the experience of those who are in the field. Transaction It is a binding contractual relationship that carries no optional choices. ’Inah It is a sale whereby one party, for instance, sells the commodity to the other for one hundred dollars, on deferred payment basis, and repurchases it from the other for eighty dollars payable on spot. In fact, the sale transaction here is nothing but a mere trick for practicing usurious lending, and the commodity is used for no purpose other than facilitating the usurious transaction. The deal in this case has nothing to do with the purposes and objectives of sale, nor does it contain any element of them. In other words ’Inah takes place when one party buys a commodity from the other 669
2. Shari ’ah Standard No. (25): Combination of Contracts on deferred payment basis and before making payment sells back the same commodity to the other for a less amount of money payable on spot. Reverse ’Inah It takes place when one party sells the commodity to the other party for a spot price, and the seller repurchases the same commodity from the buyer or from his agent for a higher deferred price. Bay’ al-Raja` ((Bay’ Bay’ al-Wafa`) al-Wafa` It is a sale whereby the seller keeps the intention to buy back his sold commodity. One of the most popular forms of this type of sale is when one party, who wants to obtain an interest-bearing loan, agrees to sell an income-earning asset to the lender. The lender will thus become entitled to the income of the asset as long as it remains in his ownership. The buyer then undertakes to return the sold asset to the seller whenever the seller pays back the same price to him. In this manner, the borrower (artificial buyer) succeeds to get the loan amount against payment of the agreed upon interest. Shari’ah-Banned Tricks It refers to those permissible contractual arrangements and other practices, which may be used to achieve prohibited goals like permitting what Shari’ah has prohibited, like escaping duties, deceiving people and performing other Shari’ah-banned practices. Shari’ah Exit (Shari’ah-Acceptable Trick) A Shari’ah exit is an act that is performed for the sake of avoiding commitment of sins, or achieving a permissible objective, or refraining from prohibited acts, or realizing a Shari’ah-acceptable interest. Separation of the Transaction Separation of a transaction means dividing the object of the same contract, into portions. To Fuqaha, it means a situation in which the provisions of the contract do not cover all the components of its object, or they may cover all of them first, and then shrink down to cover only some of them later on. Thus, either the single transaction is broken down into a number of portions, or only 670
3. Shari ’ah Standard No. (25): Combination of Contracts some parts of it are separated in this manner. When separation takes place in this manner in a single transaction between a single buyer and a single seller and for a single price, the buyer should have the option to conclude the deal or not. 671