Doubts regarding Takaful Contract
Posted Januari 21, 2011on:
Recently, I was approached by a takaful agent who was very persuasive in persuading me to buy her ‘product’. The agent was very enthusiastic in giving explanations, to the extent that I thought she was trying to impose the idea that joining the takaful is WAJIB for me. However, I rejected her appeal kindly, as I was taught that takaful is just merely the re-branding of insurance under the disguise of ‘Arabic terms in order to make it HALAL. Wallahua’lam…
I would like to raise these doubts regarding takaful contract, so that Muslims would not be tricked into something that is manipulating religion to justify their products. By the way, this blog is not the most reliable source of knowledge. The best method of learning is from a reliable teacher. Do not substitute your teacher with internet, although internet is one of the best tools for learning. Should there be any doubt, kindly refer to your respected teacher for clarification.
The issue of aqad in aqad
It is clear that takaful contract consists of three (or more) aqad that is tabarru’, mudharabah, and wakalah.
A contract (aqad) in another contract (aqad) is batil and haram in Islam.
1) If someone donates or give something as a gift, ownership shall be transferred and the person who gave it no longer the owner. Tabarru’ at will never entitle the person (who donates) for return of the ‘thing’ donated, let alone with profit.
2) Tabarru’ at will does not entitle the person for protection. Protection has its own law in Islam.
3) Nobody is bound by anyone or anything to ‘donate’ thing that is his. Do we need a contract for tabarru’at?
4) There is no such thing as ‘pre determined rate’ in the actual concept of tabarru’at in Islam.
5) The issue of Non-Claim Bonus (NCB), what is its relation with tabarru’at? Is it a profit?
6) Can the amount of contribution in tabarru’at concept be determined by the value of property, motor vehicle, risk etc (general takaful)?
7) Can somebody claim back what has he donated in the happening of certain event? Can he claim more?
1) In Islam, mudharabah has its own ‘rukun’ and ‘syarat’.
2) Can the mudharib put condition and determine what Rabbul Mal has to do, in terms of contribution, time, age, maturity, period, profit etc, as in the takaful contract?
3) Mudharabah is profit-loss sharing, transaction where the profit is shared together, but the loss will only be borne by Rabbul Mal. Unfortunately, in takaful, the participants (rabbul mal) may suffer loss, but the company (takaful operator/mudharib) will always be profited.
4) In mudharabah, every partner has to know the other partner(s) and the nature/type of business to be conducted. A partner has the right not to accept any new partner. Every partner has to be made known of business so as not to involve in illegal one. Is it similar with the takaful?
5) In general takaful, is mudharabah transaction really exist, since one is actually compelled to take?
1) Can a wakil be appointed to do something which a muwakil does not have a right on?
2) Can the wakil/agent (takaful company) put condition and determine everything that the muwakil (participants) has to do?
3) Can the wakil be authorised to appoint another wakil (second wakil), yet the principal does not involved at all in the appointment? Who is the second wakil (broker or agent) representing for? The participants/principal or the first wakil (company)?
4) Can a second wakil make a contract with the first wakil and binding one another, excluding/ignoring the participant entirely?
5) Can a wakil or second wakil charge his service fee and in the latter, who is obliged to pay? If fee (ujr) is paid, does not it fall under Ijarah?
6) Termination – In the actual concept of Islamic wakalah, a muwakil can always terminate his wakil, is this applicable in takaful?
*Most of the questions were raised during a Halqah Syar’iyyah organized by Hizbut Tahrir Malaysia not so long ago, presented by Ustaz Abdul Hakeem Othman (president of Hizbut Tahrir Malaysia (HTM).