Search results for: Bay Bithaman Ajil (BBA)

Authors: Noor Suhaida Kasri

Abstract:

In the last three decades, Malaysia has developed fundamental legal and regulatory structures that aim to accommodate and facilitate the growth of Islamic banking and finance industry. Important building blocks have been put in place, to cite a few, the elevation of the position of the Malaysian Central Bank Shariah Advisory Council (SAC) as the apex advisory body and the empowerment of their Shariah resolutions through the Central Bank Act 1958; the promulgation of the Islamic Financial Services Act 2013 that regulate and govern Islamic finance market with a robust statutory requirement of Shariah governance and Shariah compliance. Notwithstanding these achievements, enforceability of Shariah-compliant contract remains a contentious subject. The validity of Al Bai Bithaman Ajil concept that was commonly used by the Islamic financial institutions in their financing facilities structures and documentation has been unabatedly challenged by the customers in courts. The challenge was due to the manner in which the Al Bai Bithaman Ajil transactions were carried out. Due to this legal challenge, Al Bai Bithaman Ajil financing structure seems to no longer be the practitioners’ favourite in Malaysia, though its substitute tawarruq and commodity murabahah financing structure may potentially face similar legal challenges. This paper examines the legal challenges affecting the enforceability of these underlying Shariah contracts. The examination of these cases highlights the manner in which these contracts were being implemented and applied by the Malaysian Islamic financial institutions that triggered Shariah and legal concern. The analysis also highlights the approach adopted by the Malaysian courts in determining the Shariah issues as well as the SAC in ascertaining the rulings on the Shariah issues referred to it by the courts. The paper adopts a qualitative research methodology by using textual and documentary analysis approach. The outcome of this study underlines factors that require consideration by industry stakeholder in order to ameliorate the efficacy of the existing building blocks that would eventually strengthens the validity and enforceability of Shariah-compliant contracts. This, in the long run, will further reinforce financial stability and trust into the Islamic banking and finance industry in Malaysia.

Keywords: enforceability of Shariah compliant contract, legal challenge, legal and regulatory framework, Shariah Advisory Council

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Authors: Muhammad Arzim Naim, Saiful Azhar Rosly, Mohamad Sahari Nordin

Abstract:

The objective of this study is to investigate the factors affecting the rise of Shariah non-compliance risk that can bring Islamic banks to succumb to monetary loss. Prior literatures have never analyzed such risk in details despite lots of it arguing on the validity of some Shariah compliance products. The Shariah non-compliance risk in this context is looking to the potentially failure of the facility to stand from the court test say that if the banks bring it to the court for compensation from the defaulted clients. The risk may also arise if the customers refuse to make the financing payments on the grounds of the validity of the contracts, for example, when relinquishing critical requirement of Islamic contract such as ownership, the risk that may lead the banks to suffer loss when the customer invalidate the contract through the court. The impact of Shariah non-compliance risk to Islamic banks is similar to that of legal risks faced by the conventional banks. Both resulted into monetary losses to the banks respectively. In conventional banking environment, losses can be in the forms of summons paid to the customers if they won the case. In banking environment, this normally can be in very huge amount. However, it is right to mention that for Islamic banks, the subsequent impact to them can be rigorously big because it will affect their reputation. If the customers do not perceive them to be Shariah compliant, they will take their money and bank it in other places. This paper provides new insights of risks faced by credit intensive Islamic banks by providing a new extension of knowledge with regards to the Shariah non-compliance risk by identifying its individual components that directly affecting the risk together with empirical evidences. Not limited to the Islamic banking fraternities, the regulators and policy makers should be able to use findings in this paper to evaluate the components of the Shariah non-compliance risk and make the necessary actions. The paper is written based on Malaysia’s Islamic banking practices which may not directly related to other jurisdictions. Even though the focuses of this study is directly towards to the Bay Bithaman Ajil or popularly known as BBA (i.e. sale with deferred payments) financing modality, the result from this study may be applicable to other Islamic financing vehicles.

Keywords: Islamic banking, Islamic finance, Shariah Non-compliance risk, Bay Bithaman Ajil (BBA), principal axis factoring

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Authors: Zidane Abderrezaq

Abstract:

This paper’s primary objective is to identify the relative importance of various Islamic financial products, in theory and in practice, by examining the financing records of the Bank Islam Malaysia (Berhad) and the Algeria Islamic Bank. Currently, seven available Islamic financing products are considered viable alternatives to interest-based conventional contracts: mudarabah (trust financing), musharakah (equity financing), ijarah (lease financing), murabahah (trade financing), qard al-hassan (welfare loan), bay` bi al-thaman al-ajil (deferred payment financing), and istisna` (progressive payments). Among these financial products, mudarabah and musharakah are the most distinct. Their unique characteristics (at least in theory) make Islamic banks and Islamic financing viable alternatives to the conventional interest-based financial system. The question before us is to determine the extent of mudarabah and musharakah in Islamic financing in practice. The data are as follows: the average mudarabah is 5% of total financing, and the average musharakah is less than 3%. The combined average of mudarabah and musharakah for the two Islamic banks is less than 4% of the total finance and advances. The average qard al-hassan is about 4%, while istisna` does not yet exist in practice. Murabahah is the most popular and dominates all other modes of Islamic financing. The average use of murabahah is over 54%. When the bay` bi al-thaman al-ajil is added to the murabahah, the percentage of total financing is shown to be 82.68%. This paper also explores some possible reasons why these two Islamic banks appear to prefer murabahah to mudarabah and musharakah.

Keywords: Islamic banking, Islamic finance, Islamic banking rofitability, investment banking

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Authors: Imran Mehboob Shaikh, Kamaruzaman Noordin

Abstract:

Musharakah Mutanaqisah or Diminishing Partnership is a derivative of Musharakah contract, which is used by Islamic banks for housing finance facility. Most of the banks offer housing finance based on the concept of Musharakah Mutanaqisah, apart from few which still offer housing finance using BBA, Tawarruq (commodity Murabahah) and Istisna. This research attempts to compare the practice of DP housing finance offered in Malaysia. This paper will further look into challenges in Musharakah Mutanaqisah practice and its sustainability as a mortgage product. In practice there are certain issues related to Musharakah Mutanaqisah also known as Musharakah al Muntaiah bi tamlik, widely accepted and mostly used for housing finance by the Islamic banks. In Malaysia, it is in transforming stage from Bay bithamman Ajil, which is mostly used for housing finance in ASEAN region i.e., Malaysia, Indonesia and Brunei. In order to conduct this study, a discussion was carried out with few researchers who had worked on the topic previously and some Islamic bank officers attached to a full-fledged Islamic bank in Malaysia. Apart from that previous literature on Musharakah Mutanaqisah was also reviewed and various books, as well as online data, was considered for this study, and websites of different Islamic banks with information for Diminishing partnership, home financing were retrieved. This paper will highlight issues surrounding Diminishing Partnership contract and its conformity to Maqasid al Shariah (objectives of Shariah). Diminishing Partnership is widely accepted in different parts of the world and is mostly used for housing finance. The future prospect of DP is believed to be affirmative. As the product is a better substitute for BBA and most of the Islamic banks around the world have utilized their housing portfolio using the contract but at the same time, there are certain issues that need to be overcome. Even though Islamic banks are striving to sustain and compete the conventional banks but securing the customers from Gharar and other issues should be the primary objective of Islamic financial institutions.

Keywords: BBA, home financing, musharakah mutanaqisah, tawarruq

Procedia PDF Downloads 307