Definition Of Bay Inah
Based on Malaysia Central Bank, Bay Inah
defined as an arrangement that involves assets and sale to the purchaser on a
deferred basis and subsequent purchase of the asset at a cash price lower than
the deferred sale price or vice versa. Literally, bay Inah is a loan or
advanced payment while technically, it is a selling of an asset with a mark up
price on deferred payment intended to sell the same asset to the debtor with
lower cash price which is meant to settle his debt. Basically, nature of bay
inah is that bay inah arrangement is naturally binding. Hence, neither of the
sale contracts shall be terminated unilaterally or by one party only by any of
the contracting parties. Furthermore, the arrangement of bay inah is that it
can be transfered the ownership of the asset from the seller to the purchaser in
two separate and independent sale contracts though. (Central Bank of Malaysia,
2013)
Based on Ibn Qudamah, it is a sale of
asset with a deferred price and buys back the same asset as a lower price. It
is a haggling or bargaining (musawamah) sale and purchase contract which is
without referring or disclosing to what the cost price is. Hence, bay inah
basically is the sale of commodities with higher price in deferred time later
repurchased back with lower price but on the spot. It is usually occur when ones
wanted to use money immediately but do not have enough in cash. So, the
customers will decided to get into such contract to gain money for their
purposes respectively. (Security Commission Malaysia, 2011)
Based on Hanafi scholars, bay Inah is an
agreement when someone who buy assets with particular prices with deferred
payment but without own the asset genuinely and physically. Then the customer
will resell back the commodities to the seller in lower price with cash. (Abu
Muhammad Abd’ Allah Ibny Yusuf Zaylai’, 2000)
Meanwhile, based on contemporary
scholars, Dr Wahbah Zuhaili, he defines Bay Inah as a hilah in transactions to
proceed debt with riba’. It is like ones who sell assets with deferred payment,
after that buy back the assets with lower price than the price that he or she
had sold before. (Wahbah Zuhaili, 1989)
Every particular ruling in muamalah is
based on sources of Al-Quran and Sunnah. Any ijtihad done by scholars are by
referring to two kind of universal sources which are Al-Quran and Sunnah. There
is a hadith narrated by Bukhari :
“Rasulullah
saw had ordered Amru Ibnu al As to prepare the army for the battle. He then
purchased a camel in exchange for a delayed payment for two camels.”
The permissibility of Bay was supported
by Al-Shafi Scholars based on the statement in the book of Al-Umm :
“…. In
another vein, if a man buys a commodity from another vein, if a man bus a
commodity from another vein, and the payment is deferred to a stipulated time,
there is nothing wrong if he sells it back to the person he bought it from or
to another person for cash at a price lower or higher than the price at which
he bought it, or for a debt or barter of a commodity at a value he chooses to
assign to it. The reason here is that the second transaction is not linked to
the first transaction.”
Condition of Bay al-Inah
In condition of bay inah there are
divided by four parts. First and foremost is contracting parties. In bay inah
arrangement are a seller and a buyer in two different and independent sale and
purchase contract. It containing of two clear and separate contracts, namely, a
purchaser contract and a sale contracts. The seller and purchaser must be the
real person or a legal person. Each sale contract in the bay inah arrangement
shall be entered into through ijab and qabul which is offer and acceptance. The
ijab and qabul must be expressed by a documentation or any method that accept
by the both parties which do not contravene the sharia principles. Any of term
and condition mutually agreed upon which does not clash the sharia shall be
binding on the contracting parties. (Bank Negara, 2013) Both transactions occur
the two parties only. (Mohd Sabri Abdul Ghafar, 2016)
The next part is asset. In a bay inah
arrangement asset to be traded shall fulfill the following conditions which are
the asset is acceptable and recognized by the shariah, valuable,
identifiable,and deliverable. Also, the asset is already in existence and owner
by the seller. The most important is the asset may be a tangible or an
intangible asset. Other than that, the asset to be constructed or asset under
construction and asset which is debt in nature shall not be traded under bay
inah arrangement. For ribawi items it can be one of trading asset under a bay
inah arrangement but there are conditions shall be following which are any of
sale contract in the bay inah arrangement shall not be effected on ribawi asset
within the same type and category and but of different type on deferred basis.
Next, the ownership in the bay inah asset must be effectively transferred form
the seller to the purchaser and the transfer of ownership is effected upon
entering into a valid sale and purchase contact even though there is no legal
and purchase is supported by evidence of transaction. The owner of the asset
have the rights and liabilities of the purchaser as the owner of the asset are
established upon his possession of the asset.
As a seller, it shall bear the
liability for loss and damage of the asset before disposing of the right of
ownership that results in the purchaser having access to the bay inah asset.
The most essential is it can’t have multiple bay inah arrangement entered into
simultaneously on the same asset. Any defect in the asset which is discovered
and consented to by the purchaser at the time of entering. Any defect in the
item or asset which is discovered by the purchaser at the time of entering into
each sale contract in the bay inah agreement shall disqualify the purchaser
from entitlement to defect option (khiyar al-ayb) but if defect in the asset
which happened upon or before the entering into of each sale contract but is
discovered by purchaser after entering into each sale contract, as the case may
be, shall entitle the purchaser to the defect option (kihyar al-ayb). About the
defect option, both of the contracting parties may mutually agree to specify
the period for the exercise at the time of entering into the contract. They
also may mutually agree to stipulate a condition to waive liability for any
defect on the asset before entering into the contract. (Bank Negara, 2013)
The third condition in bay inah is
price. In bay inah arrangement, the price and the currency used shall be
determined and mutually agreed at the time of execution of each of the two
independent sale contracts. The price for any sale contract of the bay inah
arrangement is on murabahah basic and all requirements of price under a
murabahah sale shall be complied with. The pattern of payment may be paid on
the spot, progressively or by deferred payment in the form of installment or
bullet payments at any the agreed by the both parties. Both parties are free to
agree to make payment of the installment of full settlement in a currency different
from the currency specified in the contract at the agreed prevailing exchange
rate on the payment or settlement date respectively. They also may agreed to
extend or reschedule the payment period of the remaining debt without any
increase in amount to the remaining debt, (Bank Negara, 2013).
While the
cash payment shall be lower than deferred payment. The differed between it
based on the period of deferred payment and the first contract is sale by cash
and other sale by deferred. (Mohd Sabri Abdul Ghafar, 2016)
Last but not least, the condition of bay
inah is requirement of the bay inah arrangement. In bay inah arrangement of
each sale shall satisfy all necessary conditions of a valid sale and purchase
contract under sharia and it shall be executed by entering two separate and
independent sale contracts. The first sale contracts is the purchaser that has
the right to take delivery of the asset. Each sale contract must entered into
through an offer and acceptance between both parties. The written documentation
of both sale contract shall be prepared and represented by two separate sets of
documents. Then, the signing or execution of the two sale contract must be
performed at different intervals. All documentary or verbal evidence must not
stipulate in any part of the documentary or verbal evidence, any terms and
conditions requiring the contracting parties to repurchase or resell the bay
inah asset and or describe in any manner that the whole bay inah arrangement
creates an obligations for any of the contracting parties to repurchase or
resell the bay inah’s asset. Next, the ijab and qabul shall be executed in the
following manner, whereby the seller sells the bay inah asset to the purchaser
by entering into the first sale and purchase contract, and subsequently the
contracting parties may mutually agree to enter into another into another sale
and purchase contract. Last but not least, any amount paid to the seller before
entering into the sale contract in the bay inah arrangement shall not be
treated as part of the selling price including profit.
Prohibited Elements In Bay Inah
Ibnu
Umar reported that Rasulullah had said ; If you sell to one another with
al-Inah, and follow (from behind the bull’s tail and are satisfied with farming
and abandoned al jihad, Allah will force you into a state of humiliation and He
will not remove it until you return back to your religion.
Obvious
prohibited element in Bay Inah is hilah
into riba’. The issue of permissibility of bay inah is the status of hibah.
Justification of prohibition for this kind of contract first and foremost is to
avoid ones involve into riba’. Most people will use bay inah for personal
financing basically to earn money faster. Hence, the seller will sell the
commodities to customer in higher price with deferred payment and then the
customer will sell back the commodities to the seller in lower price with cash
or on the spot. Even though it seems like a normal contract, in fact the
contract seems to be non-distinguishable with riba’. Hence, majority of the
scholar including Hanafi, Maliki and Hanbali prohibit al-inah transaction.
(Mohd Sabri Abdul Ghafar, 2016)
There
is a hadith narrated by Ghandar from Sya’bah from Abi Ishaq from his wife
‘Aliah, she said : “I was with Ummu Walad Zaid b Arqam and we had been into
Aisyha r.a house. Then Ummu Walad said to Aishah : “I have been servant to Ata’
with 800 dirham. Then, I buy back again with 600 dirham in cash.” Then, Aisyah
replied: “It was the most awful transaction. Tell Zaid that indeed his jihad
had been nullified except if he ask for repentance.” (Mohd Sabri Abdul Ghafar ,2016)
In
addition, based on Razali from Islamic Banking and Finance Malaysia, he argues
that there is element of gharar in
bay al inah contract. It is because of the fact that intention of the
transaction is to create cash but not from true sale. However, it is supported
by Shafie School and frequently used and practiced in Malaysia but it started
to transformed and phase out with tawaruq (tri-party sale) as it is not involve
in criticism.
The
word gharar in Arabic means risk, deceit, fraud or uncertainty. Definition of
gharar based on Hanafi scholars is “something which its consequence is
undetermined”. Furthermore, based on Shafie scholars, gharar is “something
which in its manner and its consequence is hidden.” Hence to conclude, gharar
is any transaction that consist uncertainties either lack of information or
knowledge of the object or contract.
Basically, there are two types of gharar which is
Gharar Fahish (excessive gharar) and Gharar Yasir (light gharar). Gharar Fahish
is when the transactions have an excessive uncertainty such as sale of fish in
the water or sale of birds in the sky. The ownership of the fish or the birds
are still did not cleared hence the uncertainty exist here is totally
excessive. While Gharar Yasir is when there is a very light uncertainty in a
particular contract. For instance, sale of fruits at stall. Obviously we do not
know how the condition of the fruits flesh indeed. We do not peel the fruits
first before we buy it. But, this kind of uncertainty is very small so it is
permitted in Islam. All scholars agree that each transactions actually have
some amount of gharar in it but the scholars start to distinguish by referring
to the amount of gharar contained in each. (Md Akhter Udin,
2015)
Thirdly,
the motive or intention of parties are
to get money, not the commodity. As we know, intention is very significant
in determining particular rulings in Islam. Umar Ibn al-Khattab said that he
heard Prophet Muhammad (peace be upon him) say, “Indeed, every action is by
intention. And for each person is what he intended for. Hence, if ones want to
hijrah because of Allah and Rasulullah, so he will get Allah swt and Rasulullah
(blessings), if he want to go hijrah because of dunya or because of the woman
that he want to marry, so he will get what he intended for.”
Issues in Bay Inah
In bay inah, the asset will be returned
to the original seller and this is the main reason why the contract is being
criticized by many jurists especially from Hanbali and Maliki scholars because
“trade” is nothing more than an illusion. It also raised an explosion in the
price of the item as it will return to the original seller. For example in this
case, the price of chair in the bank could be worth up to thousands of ringgit
because the asset that is the object of the agreement is merely to fulfill the
pillars of the sale, not the actual requirement of the transaction, and it is
certain that the asset will be returned to the bank.(Ab. Mumin Ab. Ghani, 2006)
Majority of the scholar including
Hanafi, Maliki and Hanbali prohibit al-inah transaction and the same result
adopted by Sharia Council of The Accounting and Auditing Organization for Islamic
Financial Institutions (AAOIFI) and majority of Shariah Advisory Council
Malaysia and Brunei. The reason why they prohibited bay inah because want to
prevent falling into the practice of usury. One person performing bay inah is
to get the cash earned, borrowed and repaid after a certain period of time with
higher repayments. Although at the outset it does go through the process of
buying and selling, the fact is that the contract is no different from a debt
contract with more payment that can be likened to usury. The prohibition
against performing prohibit act is called ‘sadd al-zara’ik’. (Dr Mohd Sabri
Abdul Ghafar, 2016)
No comments:
Post a Comment