FORMS OF CONTRACT (AKAD)
Exchange Agreement
By: Dr. Gemala Dewi, SH., LL.M
Maret 2012
EXCHANGE AGREEMENT
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As-Sharf (exchange money with
money)
Barter (exchange of goods with
goods)
Buy Sell (al-Bay`/al Buyu`)
(exchange of money with goods)
Lease (Ijarah) (exchange of goods
with money).
As-Sharf
(exchange money with money)
a. Devinition
 - Literal meaning: the addition, exchange, avoidance, or
buying and selling.
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- Understanding of fiqh: as traded on the money with that
kind of money and not similar.
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- Example: - type: dinar with dinar
- Not similar: dinar with dirham
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At present, common in foreign banks or the money
changer.
b. Legal Basis
Qur'an:
Example: Q.S. Al-Kahf (18): 19:
"Then the one command that wakens go to town with a
bring your silver ....".
Hadith of the Prophet:
As-Sharf (exchange money with money)
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According to Hadist:
"Narrated by Abu ash bin Ubadah Shamid said that the
Prophet had said:" gold (let paid) with gold, silver with
silver, the bur bur, verse by verse, dates by dates, and salt
by salt, should be of the same or similar hands into the
hands of (legitimate). So when different types at will sell
you the cash requirement "(Muslim).
In the history of Ibn 'Umar said: "Do not you peddle copies
of gold with gold and silver with silver, except a kind, and
you also do not trade in silver with gold one unseen (not in
place) and the other is there" (HR Jamaat)
In the history of Al-Khudri Abu Syaid also stipulated that if
the exchange rate is traded it in kind of the same, then
there should be no increase (HR. Al-Bukhari, Muslim., And
Ahmad ibn Hanbal).
As-Sharf
(exchange money with money)
C. Pillars and Conditions
(1)
(2)
(3)
(4)
(5)
The exchange must be made in cash (spot), meaning that
each party should receive / submit their respective currency
at the same time.
The motive is the exchange in order to support commercial
transactions, ie transactions of trade in goods and services
between nations, not in the context of speculation.
To be avoided conditional purchase, for example, A agrees
to buy goods from B today with condition B had to buy it
back at a certain date in the future.
futures transactions should be done by the parties which is
believed to provide foreign currency exchanged.
It is forbidden to sell goods that have not mastered, or
buying and selling without property rights. (bai al-fudhuli).
Barter
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Islam, in principle, allow for the exchange
of goods with goods (barter), but is not
recommended because it contains
elements of usury.
Regarding usury law described in many
verses in the Qur'an and Hadith. Among
others present in QS. AR-Rum (30): 39,
an Nisa (4): 160-161, Ali Imron (3): 130,
and al-Baqarah (2): 278-279.
Barter
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a)
b)
Hadith of Prophet About Barter Dates
Barni.
The general conclusion of the opinions of
scholars, the point that the goods usury
include:
Gold and silver, whether in cash or in
other forms.
Material of staple foods such as rice,
wheat, and corn as well as additional
foodstuffs such as vegetables and fruits.
Buying and Selling (al-Bay`/al
Buyu`)
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a. Buying and Selling in General
1) Devinition
is based on mutual exchange of property voluntarily or
move belongs to the dressing that can be justified (in the
form of legal tender).
2) Legal Base
a) Al-Qur`an:
- “…
And Allah has allowed sale and purchase and forbids
usury …” (Q.S. al-Baqarah (2): 275).
- “O who believe, do not eat each other neighbor's property
by way of falsehood except by means of commerce that
goes with consensual among you” (Q.S. an Nisa (4):
29).
Jual Beli (al-Bay`/al Buyu` )
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3) Rukun Jual beli. (ada 3 hal).
a) Penjual dan pembeli
Syaratnya sama dengan syarat
subyek akad pada umumnya.
b) Uang dan benda yang dibeli
c) Lafaz Ijab dan Kabul
Buying and Selling (al-Bay`/al Buyu`)
A. Terms of invalidity:
a) The seller and the buyer
Requirement is the same as the subject of the contract in
general terms.
b) Money and items purchased
B. Requirement is as follows:
(1) Holy. Unauthorized unclean goods sold, such as animal skin
carcasses that have not tanned
(2) There are benefits.
Should not sell something that is not any good.
(3) Goods can be delivered.
Unauthorized selling an item that can not be handed over to
the purchase,
(4) The Goods are salesman belongs, or belonged represents.
(5) The goods are known by the seller and the buyer.
substance, form, content (size), and its properties clearly.
Buying and Selling (al-Bay`/al Buyu`)
c)
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Lafaz Ijab and Qabul
According to scholars who require lafadz, lafadz
was required to meet several requirements, as
follows.
The state of consent and granted related and not
long after.
(2) both let the same meaning although lafadz both
different.
(3) Both are not to associate with other matters
(4) Not timed, because buying and selling timeless
like a month or a year is not valid.
(1)
Buying and Selling (al-Bay`/al Buyu`)
4). Forms of Buying and Selling
A.) The Valid Buying and Selling (Bai’ Shahih)
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(1)
(2)
(3)
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Buying and selling is said valid if it meets the requirements
and specified in harmony.
However legitimate purchase can also prohibited when:
hurt the seller, buyer, or others;
narrowing of market movements;
damaging public tranquility.
Sale and purchase of receivables.
Regarding the sale of receivables (bai` u al dayn) direct
(cash)
Buying and Selling (al-Bay`/al Buyu`)
B) Invalid Buying and Selling.
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Buying and selling becomes invalid (null) if any or all of
rukunnya not met, such as buying and selling is done by
children, crazy people or goods sold Shari'a prohibited.
Forms of Invalid Buying and Selling
(1) The sale and purchase something that does not exist (bai`
al-ma`dum).
Example :, bonded, Buying and selling calves were not there,
still in the belly of its mother.
(2) Selling goods that can not be handed over to the buyer
(bai`u ma`juzi at taslim).
Included in this category is the buying and selling of debt
(bai`u al dain). The definition of debt is a good price to be
paid, in lieu of loans, wage / rent a benefit, diyat (criminal
sanctions),
(3) Sale and purchase of receivables.
Regarding the sale of receivables (bai` u al dayn) direct
(cash) In the world of conventional banking practice bai aldain is known with name Stock Exchange securities trading
securities, bonds.
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Buying and Selling (al-Bay`/al Buyu`)
(4) The sale and purchase are considered unclean
objects (bai`u an najas).
All objects that include unclean and not worth
according syari`at not transferable.
(5) Sale and purchase of `ar bun /` urbun
Buying and selling Urbun is selling an item by
first paying a down payment to the seller (prior
to purchased items accepted).
(6) trade in common human rights (collective
ownership) and are not transferable.
For example, river water, lake water, sea water,
and that should not be owned by someone.
c) Buying And Selling Defective
(1) Unknown Buying and Selling (bai’ al-majhul)
 Namely
buying and selling (goods globally is
unknown) or it is a total lack of clarity that brings
discord.
(2) Transaction that is associated with a
condition.
 For example greeting seller to the buyer, "I sell my
car to you next month after payday.
(3) Sell goods (no) in place or can not be submitted
at the time of buying and selling takes place, so it
can not be seen by the buyer.
(4) Buying and selling is done by a blind person.
Jumhur scholars say that the sale of the blind is
valid if the blind person has the right to feel or
sense the ability khiyar.
c) Buying And Selling Defective
(5) Sale and purchase by barter prices forbidden.
Example: make the goods that are forbidden as price, such as
pigs,
alcohol
or
blood
and
carcass.
6) Buying and selling doom the sale with deferred
payment
then
bought
back
with
cash.
(7) Buying and selling grapes and other fruits for the
purpose of manufacture of alcohol or wine seller if the
buyer knows that it is the alcohol or the manufacturer.
(8)
Combining
the
two
terms
in
the
sales:
someone selling an item on the buyer with buyer
requirements should not be sold to a certain person, or the
buyer may not donating / it over.
(9) Sale and purchase of most goods can not be
completely separated from the unit.
For example: buy one shoe.
(10) Buying and selling of fruits or grains that have not
been perfect ripening for harvest.
Buying And Selling
Murabahah
Buying and Selling Murabahah
Buying and selling in a particular form:
1). Murabaha (sale and purchase of goods above)
a)
b)
Definition
Murabahah is a sale and purchase of the purchase by one party
and then sold to other parties who have applied for the purchase
of goods with a profit or additional transparent pricing.
Pillars and Conditions
Pillars of murabahah equal to the buying and selling in general.
Buying And Selling Murabahah
Requirements that must be met:
Sale and purchase of murabahah should be done over the
goods have been owned (ownership rights in the hands of the
seller has both advantages and risks of the goods.
Lack of clarity of information concerning the amount of capital
and other costs commonly incurred in the purchase and sale of
a commodity.
(2) The existence of clear information about the benefits of both
nominal and percentage.
(3) In the system of murabahah, the seller may set a condition on
the buyer to ensure that damage does not appear on the
goods, but better terms as it does not need to be specified,
because the custody of the goods is the seller's obligations in
addition to maintaining the trust as well as possible.
In the system of murabahah, the seller may set a condition on
the buyer to ensure that damage does not appear on the
goods, but better terms as it does not need to be specified.
(1)
Bai’ As Salam
2. As Salam /As Salaf (Buying and
Selling with the Payment in
Advance)
a) Devinition
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As Salam or also called as the Salaf is purchasing goods
diserahkankan later while payment made in advance.
b) Legal Basis
(1) Q.S. al-Baqarah (2) 282
(2) Hadith:
Transmitted by Ibn Majah:
From Suhaib ra, that the Prophet said: "Three things in
which there are blessed: buying and selling as tough
(greetings), muqaradhah (mudaraba), and mix with wheat
flour for home use, not for sale."
Bai’ As Salam
Special conditions for the greeting is:
1. payment is made in advance.
2. Goods into debt for the seller
3. Goods can be given according to the time promised. Means
at the time promised that the goods must already exist.
4. Goods are clearly let its size, proportion, or their number,
according to habitual ways of selling such goods.
5. Known and mentioned properties and kinds of goods clearly
that there is no doubt that will lead to a dispute between
the two sides. By the nature of it means that the price and
the willingness of people to the item may be different.
6. Mentioned places accept it.
Bai’ Al Istishna`
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Al Istishna`(Buying and Selling with
Orders)
Istishna` is one form of buying and selling greeting, only objects
in the agreed form of contract manufacturing or production
orders.
Istishna` defined with the sales contract between the buyer and
the manufacturer of the goods. In this contract manufacturer of
goods (shani`) received an order from the buyer (mustashni`) to
make goods with the specifications that have been agreed by both
parties to the agreement on the price and payment system that is
made in advance, by installment, or deferred until the future.
According jumhur jurists, bai` al istishna` a special kind of
contract bai` greetings. The difference, istishna` used in
manufacturing. Thus, the provisions bai` al istishna` following
contract provisions or rules bai` greetings.
Leasing (Ijarah)
Devinition
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According to the Ijarah transaction to the
Hanafi scholars is a benefit in return.
According to scholars Syafi`i is a
transaction against the intended benefits,
certain, is permissible, and can be used
with certain benefits.
Based on several definitions, bounds Ijarah
restricted by the terms.
Ijarah was only addressed to the benefit to
the goods / services of any nature.
Ijarah
2) Legal Base
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a) Al-Quran:
Q.S. az-Zukhruf (43): 32, Q.S. ath –Thalaq (65): 6, Q.S.
al-Qashash (28): 26, Q.S. al Baqarah (2): 233,Q.S. an
Nisa` (4) : 29.
b) Hadits:
Transmitted by Bukhari, Muslim from Ibn Abbas:
"Berbekamlah you, then give the reward to the artisan in
you bruise it.“
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c) Ijtihad:
The jurists of Fiqih do not allow the exchange rate ijara
lease money because it spends the material. While the
ijara is simply intended benefits of an object. Additionally
rent money means the excess of the stuff that tends to
usury usury clear
3) Terms And Condition of Ijarah
(Leasing).
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Both sides expressed willingness to do berakad
Ijarah contract.
The benefits of being the object ijara must be
known perfectly, so do not bring disputes
People who hire goods are entitled to use it to
use the benefits of the goods,.
In ijara services that are above one's job (`ala
al-ijara a`mal), ijara object is not an obligation
for that person. Ijarah is an object that can be
rented.
Wage / rental agreement within hrs ijara clear,
specific and valuable.
Hanafi scholars said the wage / rental was not
similar to the benefits of rent.
Thank You!