assalamu’alaikum wbt to all readers.
first and foremost, may the owner of this blog allow me to remind all of us that the discussion on this topic (or any Islamic commercial transactions, banking and financing issues) is not merely to focus on the Inah contracts and products per se, as rumoured by current banking system in recent world, and those who proclaimed it as a very Islamic version of banking system.
In fact, the prominent point that must be aware of here is the fallacy of today’s banking system (both conventional and Islamic banking)- the historical background, modus operandi, etc. And to understand that there is an urgency and obligation for the Muslims to implement the real Islamic economic system, as this is the utmost answer for all economic problems that arise in recent era (after the downfall of khilafah).
And notably, the only definite solution to achieve it is by establishing khilafah, as only khilafah can provides the systems which complied with hukum syarak – economic/financial system, judicial system, education and so on. And here we go, to call for the rise of khilafah and to answer for such call and fight for it.
Dear Nur and all Muslims,
May Allah bless us, and guide us to the righteous path of His.
I hereby sharing some points of information concerning inah (interchangeably – bai’ al inah).
Imam shafi’i considering the contract of inah as halal, however he had regarded the transaction to be haram or reprehensible according to the intention and the nature of the parties to the contract’s motive. (i.e. the niyya or qasd). (one of the factor).
According to shafi’i school such sales are to be allowed bcos, in the words of Imam shafi’i, the contracts are sahih i.e. valid by the external evidence that they were properly concluded as stated ” the unlawful intention of the parties is immaterial, it does not invalidate their act, unless expressed in that act.”
Al-Shafii has further illustrated his teachings by taking example concerning the muhalil marriage (temporary marriage; a man intends to keep his wife for only a short period of time). that marriage is sahih whereas a mut’aa marriage is batil. Shafii’s considered that the intention of the parties is taken into account only when the invalid intention is explicitly mentioned in the contract.
Despite this argument, it must be noted that this is his personal opinion and not based on interpretation of any authentic Islamic authority. And it is important to remember that this is the common interpretation and understanding of Imam shafi’i's view on Inah contract, which has been world-widely highlighted and put forward by some scholars and researchers.
as we know, the athar of Aisha r.a. was rejected by shafi’ian stating that Aisha sayings in the athar is not Rasulullah sayings. She’s not in position that qualified to give such verdict. Thus Aisha rulings is not effective and not accepted. Unlike major jurists whom consider Aisha’s asserion as a clear illustration to indicate that Inah was unlawful contract.
the other schools like Maliki and Hanbali based their prohibition of Inah transaction according to the consensus of the jurists (Ijma’ al ulama’) which relied their contention on the authority of Islamic law sources.
For instance, Ibn Qayyum has prohibited bai’ al-inah according to the hadith whic reported that Allah’s messenger said “A time is certainty coming to mankind when they legalise (Yastahillun) the riba’ under the name of bai”.”
and ibn Umar said that “I heard the Prophet of Allah (s.a.w.) say when you enter into the inah transaction, hold the tails of oxen, are pleased with agriculture, and give up conducting jihad, Allah will make disgrace prevail over you, and will not withdraw it until you return to your original religion.”
furthermore, it is important to consider Ibn Taimiyyah contention concerning this issue i,.e. Shafi’i argument on the validity according to niyyah factor. Ibn Taimiyyah has divides sales into 3 groups based on the buyer’s intentions, i.e:
1. Allah has permitted a sale when a buyer purchases the goods in order to use or consume them such as food, drink and the like.
2. that the buyer purchases the goods in order to trade with them. Such trade is also permitted by Allah.
3. and finally, that the buyer which reason for purchasing the goods is neither the first nor the second, then the reason must be dirhams (money) which he needs, and it was difficult for them to borrow, so he purchases the good on credit (with an increased dirhams) in order to sell it and takes its price. then, this is ‘inah which is haram according to the most prominent jurists.
from these hadith and contention, meanwhile considering the modus operandi of bai’ al-inah, telah jelas lagi terang bersuluh that bai’ al inah is a sale that constitutes the taking of usurious interest. hence, according to jumhur ulama’ it is forbidden.
(there’s some other hadith to support these arguments. please read and relate them with the real transactions so that you can really understand inah transactions. what’s more important so that you can crystal clear see whom opinions are rajih. ain’t that’s how we suppose understand something as well as to determine it legality and validity?)
Furthermore, as i said earlier, above contention of Shafi’i's view on the validity of bai’ al inah was the common interpretation of Imam Shafi’i sayings that being widely broadcast around.
To be aware of that Imam shafi’i’s method in determining the validity of any contract by its formal evidence that they are legally concluded, cannot be cancelled on account of the intention of the parties, although he had to recognize such intention as haram but the contract remains valid unless the intention is clearly expressed in the contract.
And please take note that NOT EVERY VALID CONTRACT IS A HALAL CONTRACT.
Thus Imam shafi’i may, (understandably) permits contracts because its legal preconditions are fulfilled, but forbids the transacting act of the parties when it conflicts with Shari’ah principle.
This is supported by his teaching – concerning the sale of sword. Al Shafi’i states that it is not disallowed to sell a sword to a person who COULD use it to commit an unjust killing. however, that sort of sale is sahih (valid), bcos that person might not use the sword for that purpose. but in the same time Shafii also recognizes such transacting act as haram and the person is not allowed to take possession of the sword (Tamlik), thus, as the result, preventing the contract from producing its effects.
HENCE, conclusively speaking, despite the fact that the methodology adopted by Imam shafi’i appears to be different from other scholars, it can be said his teaching actually concluding or achieving the similar understanding as to the other schools.
Furthermore, pratcie of Inah also haram based on fadl mal bil a `iwad. bcos how could a person effectuate such sale when he cannot realize profits right? And of course, obviously bai al inah is a contract of loan and not contract of sale. This is clearly illustrated in current baking systems that offering products or contracts based on Inah. (Islamic bonds, credit card, accepted bill, issuance of securitization, housing loan etc.)
This is a clear backdoor riba’. A stratagem to make everything legal – without applying the Shariah principle in a right way. How could M’sian shariah committees rely on the basis maslahah when all other shariah committees around the world considering it as usurious transaction and it is haram based on the Al-Quran and Sunnah? What are their actual intention? (of course, to provide a flexible and open Islamic banking financial market for the best interest of Muslim contemporary society! Accessible by all people regardless of their mazhab). What interest of Muslims should be taking care of???? To implement the Islam kaffah for all Muslims, or to provide and protect a group of people who call themselves as `Muslim’; and dumping others’ interest???
It seems funny when all the Muslims society want the best for their life, but refuse to take the best of their religion as the basis of their life. (not referring to economics per se). Wake up Muslims!
bai’al inah, bba, aitab, takaful, salam, istisna’, bai’ murabahah and etc, as long as produce by banks (or whasoever capitalist-based financial institutions) would never be a right and real solution for riba’ problem. This complicated banking environment in fact is a deception which manipulates the religious notion of Muslims for banks’ profit! and obviously not for the need interest of Muslims society!
Islamic banking is actually a creation of institution with so-islamic-apparel which in fact, the fundamental nature remains with the un-syari’e elements. Whatsoever contentions held by those who legalise Islamic banking, the fact that Islamic banking today is NOT ISLAMIC remains the truth and heartbreaking fact which must be aware and ACCEPTED by Muslims.
Notably, till today, their proclamation on the maqasid of Islamic banking, never be achieved and could never be achieved. (except the capitalist objectives)
By adopting Inah as one of the acceptable basis principle of Islamic banking products in Msia, M’sia shariah committee has obviously make their decision not really based on shariah principle, to safeguard the muamalat of Muslims people, nor to uphold the hukum syarak in muamalat, but merely for the best interest of the bank and those capitalist-lovers, and in addition by islamize banking system they had camouflage the truth about Islamic economics. and disappointedly, many Muslims got trapped!
Isn’t it funny when those men of religion (who hold the authority and be in the position) in msia are so strict to apply mazhab shafi’i in this country and keep `fostering’ the muslim society with “mazhab syafi’i is the righteous, the most rajih of opinion in all matters”, etc. they hardly and strictly accept others schools’ opinion in term of solat, zakt,islamic family matters and some other common matters. unlikely, they turn to be so flexible when it come to economic matters.
Undeniably they refuse and fail to educate the society the actual Islamic education. hence, resulting the people to keep living in with ignorance of what and how Islam is, actually. And they will simply and easily and perhaps blindly accepting these people contentions without any doubt, not even a question. This is the fact that we must admit – most of us weren’t fully educate on Islamic knowledge. Except in common ibadah things and so other simple and basic things. is that sufficient?
My dear friends,
why should we practice muamalat in capitalist way when Islam has provide the easiest and safer way for us to muamalat? why should we depending and relying on capitalist-human-theory to develop our economy, in fact Islam already provide the best economic system for us? why should we keep question without willing to understand and accepting something which clearly mention in Allah book and Sunnah of Rasulullah? WHy should we seek for other alternative to legalize our transactions when Allah has already create a clear and apparent transaction for us? How could we simply and easily redha to live in and with a system which explicitly deviate from Shariah (from the very basis) and obviously drift us away from Islam?
What is the parameter of our attitude as a Muslims? How we think, we we react etc…
may ALlah guide us to the righteous path of Him.
*please correct me for any incorrect info. and for sure, please put behind my grammatical error and horrendous sentences. =p
baarakallahufeekum wa jazaakumullahu khairan al-jaza’