Saturday, April 4, 2020

Bay I'nah


  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)

   Sources of Bay Inah
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)

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