Oleh:
Dr. Gemala Dewi, SH.,LL.M
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Trade or business is a highly respected in the
teachings of Islam
Prophet Muhammad is very appreciative of the
merchants, even he himself was an activist
foreign trade is highly reliable and pupolis
Disclosure of trading in the Qur’an found in three
forms, namely tijarah, bay’ and Syira'. Tijarah
word is called 8 times in the Qur'an are scattered
in seven letters, which surah Albaqarah: 16 and
282, An-Nisa​​: 29, at-Tawbah: 24, An-Nur: 37,
Fathir: 29, Shaf: 10 and Al-Gomaa: 11
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From Mu'az bin Jabal that the Messenger of
Allah said, "Indeed the best of both
businesses are businesses that trade if they
speak no lie, if it promised not to violate, if
not treasonous believed, if the purchase does
not blame the product, if it sells no praise
merchandise, if it does not slow down the
payment owed​​, if it has not complicate
receivables ". (HRBaihaqi and released by AsAshbahani)
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a.
b.
Contract (akad) is the relationship between an
authorized (ijab) and granted consent
9qabul)by the syariah law giving rise due to
the object. (Jumhur Ulama)
The most important element in the contract:
Ijab (Pledge), that such linkages and granted
consent. Consent is a statement from
someone (the first party) to offer something.
Qabul is a statement from someone (the
second party) to receive / grant offer from
the first party.
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Contract (Aqad) is: a written agreement
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21/2008 on Islamic Banking).
Contract is an agreement between two or
more parties to do or not do and certain legal
acts (Article 20 KHES).
between the Islamic Bank or UUS and others
that contain the rights and obligations of
each party in accordance with Sharia
principles (Article 1 point.13 of Law No.
1.
Al ‘Aqidain (the subject of
2.
Mahallul ‘Aqad (the object of
3.
Maudhu’ul ‘Aqad (the purpose of
4.
Sighatul ‘Aqad (ijab and kabul)
contract)
contract)
contract)
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1.
2.
It is the parties who perform the contract as a
legal act which assumed rights and
obligations.
The form of the subject of contract:
Human (syakhsiyah thobiiyah)
Corporation (Syirkah) (syakhsiyah I’tibariyah
hukumiyah)
Human as a subject of law is a human that is
already subjugated by law, called mukallaf.
(has full legal capacity).
Mukallaf are the ones that have been
deemed capable of acting in law, both of
which are associated with the commands of
Allah and with the prohibitions and be
accountable to God.
1.
2.
3.
Aqil Baligh; which means it has reached the
physical changes and common sense
(mature).
Tamyiz (can distinguish); which means it can
distinguish between good and bad.
Mukhtar (free of coercion); Principles should
be reflected in the contract that it was
consensual antharadin free from coercion
and pressure.
1.
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Ahliyah (proficiency):
Ahliyah wujub (proficiency in the right)
Ahliyah ‘ada (proficiency in performing
responsibilities).
2. Wilayah (authority)
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Niyabah Ashliyah (doing him/her self)
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Niyabah al-Syar’iyyah (through guardians).
3. Wakalah (representation)
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Abdurrahman Raden Aji Haqqi, in the book of
“The Philosophy of Islamic Law of Transactions”,
mentioned four (4) phases of a person in a legal
capacity (Stages of Legal Capacity:
Marhalah al-Janin (embryo stage),
Marhalah al-Saba (stage / future embryo), from
human birth to age 7 years
Marhalah al-Tamyiz (phase / time to distinguish
between the good with the bad, between the
ages of 7 to 15 or 18 years),
Marhalah al-Bulugh (stage / puberty)
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Wahbah Az-Zuhaily, adds with one stage
further that is called as “Daur ar-Rushd“, the
wise stage (stage of prudence). This stage is
the stage of the most perfect in the law for a
person to act.
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Corporation is the party of law that is acting
in a law and the rights, obligations, and legal
relationship to other persons or other party.
An alliance (Syirkah) which was formed by the
right and has the responsibility of property
separate from its founder.
Legal Basis:
Q.s. an-Nisa (4):12, Qs.Shaad (38):24,
Hadits Qudsi narated by Abu Dawud & Al
Hakim from Abu Hurairah
1.
2.
3.
4.
5.
6.
Having different rights than human rights, in
which have family right, the right for
inheritance, the Legal Entity does not have
those rights.
Not disappear with the death of the
management corporation.
There is a need for legal recognition.
It has a limited scope.
It has a fixed legal action, did not develop.
No offense punishable.
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1.
2.
3.
4.
The form of the object that is subject to the
law of contract can be tangible and intangible
items or services.
Terms of the contract Objects are:
existing when the contract was held.
justified by the Sharia Law.
should be clear and recognizable.
can be handed over.
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1.
2.
3.
The purpose of the contract can not be
contrary to the Shari'a.
requirements that must be met in order for a
contract goal (maudhu'ul aqdi / ghoyatul
aqdi) is considered valid:
is not an obligation that has been there.
lasts until the end of the contract.
Shari'a must be justified.
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Sighatul 'aqad is an expression of the parties
to a contract in the form of consent and
granted.
Ijab is a statement of promise or offer of the
first party to do or not to do something.
Kabul is receiving a statement or promise or
offer of the first.
1.
2.
3.
Jala'ul ma'na, such as the objectives
contained in the statement is obvious, so we
can understand the type of contract
required.
Tawafuq, namely the correspondence
between consent and kabul.
Jazmul iradataini and granted consent, ie
between the needs of the show for sure, do
not hesitate and do not have to.
1.
2.
3.
4.
Orally  ijab and kabul clearly expressed by
words.
In writing  ijab and kabul expressed in
writing as a letter of agreement within.
With cues  ijab and kabul expressed with a
specific code, provided that the parties have
the same understanding as the people with
disabilities who use sign language.
By action  ijab and kabul through an act
indicating agreement.
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Create the rights and obligations between the
parties (subject of law).
There is a “Khiyar”, namely suffrage (the right
of choice) for performing the contract or
cancel the contract to perform the agreed.
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It is very important role in Islam to protect the public from
the effects of the influence of damaged goods sale:
The buyer has the right to inspect the goods before the
agreement and advise or confirm whether the items to be
purchased are free from damage.
Upon delivery of the goods by the seller, if consumers find
damage to the goods that already exist at the time owned
by the seller, the consumer has the right to reject or
accept a price.
If the seller makes a determination of exception and does
not consider itself responsible for the damage to the
goods, while the damage was known or intentionally
concealed by him, setting disclaimer has no effect and
therefore, the consumer is not bound by the determination
of the release and have the option to refuse or receiving
the goods
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Imam Malik RA said: "... Any person who sells
... without the agreement of accountability,
then he is not responsible for any existing
damage to the goods he has to sell, unless he
knows and hide the damage. If he was aware
of the mistake and cover it, the determination
that he is free from responsibility, cannot
release him ... "
Thank
You