Murabahah - Appendices

Transcription

1. BNM /RH/STD 028-4 Islamic Banking and Takaful Department Murabahah Page 37/43 Appendices Appendix 1: 25.16 Legitimacy of murabahah contract The legitimacy of the murabahah 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 Qiyas (analogy). The Quran 25.17 The following verse of the Quran implies the general permissibility of sales contract including murabahah: ‫الربَا‬ ِّ ‫َح َّل اللَّـهُ الْبَـْي َع َو َحَّرَم‬ َ ‫َوأ‬ “…whereas Allah SWT has permitted trading and forbidden usury…” (Surah alBaqarah, verse 275) The Sunnah of Prophet Muhammad (peace be upon him) 25.18 There is no direct juristic authority from the Sunnah of the Prophet (peace be upon him) regarding the legitimacy of the murabahah contract. It is deemed permissible based on the general permissibility of sales in Islamic law. 25.19 The following hadith implies the general permissibility of murabahah contract: ‫ أي‬:‫ سئل‬-‫صلى اهلل عليه وسلم‬- ‫ أن النيب‬-‫رضي اهلل عنه‬- ‫عن رفاعة بن رافع‬ .‫ وكل بيع مربور‬,‫ عمل الرجل بيده‬:‫الكسب أطيب؟ قال‬ The Prophet Muhammad (peace be upon him) was reported to have said: “The best earning is what a man earns with his own hands and from a permissible trade” (Narrated by Hakim, Al-Mustadrak, Hadith no. 2160) Issued on: 23 December 2013
2. BNM /RH/STD 028-4 Islamic Banking and Takaful Department Murabahah Page 38/43 Consensus of the Muslim jurists (Ijma’) 25.20 The Muslim jurists have reached ijma’ on the permissibility of murabahah contract. Analogy 25.21 Since the Prophet Muhammad (peace be upon him) approved the tawliyah sale (sale based on cost price), the sale on mark-up will be equally permissible on the basis of analogy on the tawliyah sale. 25.22 The determination of cost and making the cost known to the purchaser is common in both the tawliyah and murabahah sales. Issued on: 23 December 2013
3. BNM /RH/STD 028-4 Appendix 2: Islamic Banking and Takaful Department Murabahah Page 39/43 Glossary Terms Acquisition cost Explanation The cost of acquiring an asset, including its price and direct expenses Direct expense Costs or expenses incurred to directly enable the acquisition of asset by the IFI and delivery of the asset to the customer Gharamah Penalty Hamish jiddiyyah A security deposit placed to secure the undertaking to purchase an asset before entering into the sale and purchase agreement. Hiwalah Assignment of debt from the liability of the original debtor to the liability of a third person so that the original debtor becomes free of liability Ibra’ Rebate Ijarah muntahia Lease contract which ends with acquisition of ownership of bi al-tamlik the asset by the lessee Ijma` Consensus of Muslim jurists Indirect expense Expense indirectly incurred and not directly chargeable to a specific acquisition, project or task Kafil Guarantor Khiyaral-`ayb Option arising from a defect; the option of dissolving the contract on discovery of a defect in the asset purchased Muqassah Offsetting Purchase orderer A person who enters into an arrangement with a seller to place an order for a particular asset and undertakes to subsequently purchase the said asset upon its acquisition by the seller. Qabd haqiqi Physical possession. It refers to a state where a person has actual possession and the rights to control an asset Qabd hukmi Constructive possession. It refers to a state where a Issued on: 23 December 2013
4. BNM /RH/STD 028-4 Islamic Banking and Takaful Department Murabahah Page 40/43 person does not have actual possession but has the legal rights to control an asset Qiyas Analogy Rahn Pledge/Charge Ribawi asset Assets which are subject to specific rules in sales to avoid the implication of riba. These assets consist of six (6) types and are classified into two (2) categories: (a) Medium of exchange (currency) represented by gold and silver and any items used as currency; and (b) Staple food represented by wheat, barley, dates, and salts. If an exchange involves the same type of asset such as gold for gold or wheat for wheat, then it must be of equal counter-value and on-spot basis. If the exchange involves assets of different type but within the same category such as the exchange of gold for paper currency, then it has to be done on spot basis. Takhliyah Relinquishing or abandoning the rights of ownership Tamkin Enabling the person who has the ownership of an asset transferred to him to make full use and assume liability of the asset Ta`widh Compensation Tawliyah Sale of an asset at its cost price ‘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. ‘Urf tijari Common business practice which is acceptable by the community and does not contradict the Shariah rulings Wa`d Promise or undertaking Wakalah Agency contract Issued on: 23 December 2013
5. BNM /RH/STD 028-4 Islamic Banking and Takaful Department Murabahah Page 41/43 Appendix 3: General parameter on underlying assets 25.23 Minimum criteria that needs to be fulfilled to ensure that the underlying asset complies with Shariah requirement: (a) The asset must exist and identifiable in terms of its location, quantity and quality. Assets under construction are not eligible for murabahah contract. (b) The asset must be permissible under Shariah, valuable and beneficial to the purchaser. (c) The asset must be transferable (i.e. something that can be delivered to customers). (d) Debt instruments (e.g. Islamic accepted bills and negotiable Islamic debt certificates) are not qualified to be traded under murabahah contract. Issued on: 23 December 2013
6. BNM /RH/STD 028-4 Islamic Banking and Takaful Department Murabahah Page 42/43 Appendix 4: General guidance on the components of acquisition costs 25.24 The acquisition cost refers to direct expenses incurred for the acquisition of asset by IFI and delivery of the asset to customer, which includes: (a) transportation; (b) storage; (c) assembly (e.g. cost of services such as installation cost); (d) taxes; (e) cost arising from insurance or takaful coverage on the asset acquired before selling it to customer. The takaful contribution paid by IFI may be added to the cost of acquisition; and (f) any valid expenses established by customary practice. This should be deliberated and approved by SC of IFI. 25.25 Additional direct expenses that are incurred subsequent to completion of murabahah contract and not specified in the legal documentation shall not form part of the murabahah selling price. 25.26 Overhead expenditure or indirect cost shall not form part of the acquisition. These expenses include staff wages or labour charges that are not due to asset acquisition activities. Issued on: 23 December 2013
7. BNM /RH/STD 028-4 Islamic Banking and Takaful Department Murabahah Page 43/43 Appendix 5: Related legal and policy documents 25.27 This policy document must be read together with the following legal and policy documents: (a) Shariah Advisory Council (SAC) rulings published by the Bank11; (b) Shariah Governance Framework for Islamic Financial Institutions; (c) Guidelines on Corporate Governance for Islamic Bank; (d) Guidelines on Corporate Governance for Development Financial Institutions; (e) Risk Governance; (f) Capital Adequacy Framework for Islamic Banks (Risk-Weighted Assets); (g) Capital Framework for Development Financial Institutions; (h) Capital Adequacy Framework for Islamic Banks (CAFIB) Disclosure Requirements; (i) Guidelines on Product Transparency and Disclosure; (j) Guidelines on Financial Reporting for Islamic Banking Institutions; (k) Guidelines on Financial Reporting for Development Financial Institutions ; (l) Guidelines on Property Development and Property Investment Activities by Islamic Banks; (m) Guidelines on the Imposition of Fees and Charges on Financial Products and Services; (n) Guidelines on rebate (Ibra’) for Sale-based Financing; (o) Guidelines on Late Payment Charges for Islamic Financial Institutions; and (p) 11 Guidelines on Responsible Financing. Including Shariah resolutions in Islamic Finance, standards, circulars or any directive pertaining to Shariah matters issued by the Bank Issued on: 23 December 2013