Ijarah - Appendices

Transcription

1. Ijarah 54 of 59 APPENDICES Appendix 1 Legitimacy of ijarah 1 . The legitimacy of the ijarah contract is derived from the Quran and founded on the Sunnah of Prophet Muhammad (peace be upon him), the consensus of Muslim jurists (ijma`) and analogy (qiyas). The Quran 2. The following verse of the Quran implies the permissibility of the ijarah contract: And said one of them (the two women):” O my father! Hire him! Verily, the best of men for you to hire is strong, the trustworthy. He said: I intend to wed one of these two daughters of mine to you, on condition that you serve me for eight years, but if you complete ten years, it will be (a favor) from you. But I intend not to place you under a difficulty. If Allah will, you will find me one of the righteous.”64 The above verses describe the story of Prophet Musa (peace be upon him) being hired for a certain period of time to undertake a specific task. The compensation for the task undertaken by the Prophet is deemed as payment for the outstanding dowry for his marriage. 64 Surah al-Qasas, verse 27.
2. Ijarah 55 of 59 The Sunnah of Prophet Muhammad (peace be upon him) 3. The following hadith implies the general permissibility of ijarah: ‫" أعطوا األجري أجره‬:‫ قال رسول اهلل صلى اهلل عليه وسلم‬:‫ قال‬،‫عن عبد اهلل بن عمر‬ )a( ".‫قبل أن جيف عرقه‬ Abdullah Ibn Umar narrated, the Prophet (peace be upon him) said: “Pay the hired worker his wages before his sweat dries off.”65 ".‫ ومن استأجر أجريا فليعلمه أجره‬...":‫عن أيب هريرة عن النيب صلى اهلل عليه و سلم‬ )b( The Prophet (peace be upon him) is reported to have said: “… He who hires a person should inform him of his fee.”66 :‫" أعطى رسول اهلل صلى اهلل عليه وسلم خيرب اليهود‬:‫ قال‬،‫عن عبد اهلل رضي اهلل عنه‬ )c( ‫ "أن املزارع‬:‫ وأن ابن عمر حدثه‬،"‫ وهلم شطر ما خيرج منها‬،‫أن يعملوها ويزرعوها‬ ".‫كانت تكرى على شيء‬ Abdullah ibn Umar narrated, “Allah‘s Apostle gave the land of Khaybar to the Jews to work on and cultivate and take half of its yield.” Ibn Umar added, “The land was used to be rented for a certain portion (of its yield).”67 The Consensus of Muslim jurists (Ijma`) 4. Ijarah has been unanimously approved by the companions of Prophet Muhammad (peace be upon him) and prominent jurists of the recognised schools of Islamic law. They view that the need to utilise the usufruct of different articles (goods and services) is similar to the need to utilise the articles. When the contract of sale of such goods and services is permitted, the lease of its usufruct shall also be permitted on the grounds of public interest (maslahah) and need.68 65 Ibn Majah, Sunan Ibn Majah, hadith no. 2443. Al-Bayhaqi, al-Sunan al-Kubra, hadith no. 11761. 67 Al-Bukhari, Sahih al-Bukhari, hadith no. 2165. 68 Ibn al-Munzir, al-Ijma`, Maktabah al-Furqan, 1999, p. 133. 66
3. Ijarah 56 of 59 Appendix 2 Glossary Terms Definition Gharamah Penalty . Hamish jiddiyyah A security deposit placed to secure the promise to purchase an asset before entering into the sale and purchase agreement. Hibah A transfer of ownership of an asset from a donor to a donee without any consideration. Ijarah mawsufah zimmah fi A contract that transfers ownership of a usufruct for a specified duration in the future based on an agreed specification by the contracting parties at the inception of the ijarah contract. Ijarah mudafah mustaqbal ila A lease of an identified asset whereby the lessee and the lessor, have agreed at the time of entering into the contract, that the delivery of the usufruct of the leased asset will take effect at an agreed specified future date Ijarah muntahiyah bi A lease contract which ends with acquisitions of tamlik ownership of the leased asset by the lessee. Ijma` Consensus of Muslim jurists. Istisna` A contract by which a seller sells to a purchaser an asset that is yet to be constructed, built or manufactured according to agreed specifications and delivered on an agreed specified future date at an agreed predetermined price. Kafalah A contract where the guarantor conjoins the guaranteed party in assuming the latter’s specified liability. Mukhalafah al-shurut Breach of specified terms. Qiyas Analogy. Rahn Pledge/Charge. Ta`addi Misconduct. Ta`widh Compensation. Taqsir Negligence. `Urbun Earnest money paid to secure purchase of an asset in an exchange contract which is considered part of the price if the purchaser decides to continue the contract and is not refundable.
4. Ijarah 57 of 59 Terms Definition `Urf Customary practice which is acceptable by the community and does not contradict the Shariah principles. Wa`d Unilateral promise which refers to an expression of commitment given by one party to another to perform certain action(s) in the future. A promise attached to a condition, time, price, conduct or event shall be binding on the promisor.
5. Ijarah 58 of 59 Appendix 3 Illustration of structures of ijarah and ijarah financing Ijarah : 1. Lease usufruct of asset Lessor Lessee 2. Pay lease payments for specified period Note: Asset ownership may remain with lessor after the end of lease period. Ijarah financing: 1. Lease usufruct of asset 1. Provide wa`d to purchase asset at end of lease period Lessor Lessee 2. Pay lease payments for specified period 3. Sale of leased asset Note: Asset ownership is transferred to the lessee at the end of the ijarah financing period.
6. Ijarah Appendix 4 59 of 59 Resolution mechanism in the event of default Event of Default IFI invokes wa `d to purchase the leased asset by the customer Honour wa`d Breach wa`d IFI appoints thirdparty e.g. auctioneer, property auction house Repossess & dispose of the leased asset Settlement of outstanding amount (remaining principal + rental due) through a sale contract Can sale proceeds cover settlement amount? Yes Settlement of financing No Claim shortfall from customer