Applied Shariah in Financial Transactions - PowerPoint Presentation

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Applied Shariah in Financial Transactions

Assoc. Prof. Dr. Mohamad Akram LaldinExecutive Director, ISRA

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Islamic Contracts and Products

Islamic Investment Products

Presentation Outline

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Essential Shariah Guidelines

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Details

Essential

Shari’ah GuidelinesIslamic Contracts and Products:

Deposit – taking Contracts

Sale – based ContractsLease – based ContractsEquity – based & Hybrid ContractsFee – based ContractsOther Supporting ContractsTakafulInvestments Products

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Divine Sources (Quran &

Sunnah

)

Mutual Consent

4Transaction in IslamAny transfer of wealth or property has to be made through a valid contract or `aqad

Contracts in Islam is the linking of offer and acceptance, resulting in legal effects on the subject matter of the contract.

In Islamic law, `contracts includes both bilateral as well as unilateral

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Essentials of Valid Contract

CONTRACTING

PARTIES

Offeror

Offeree

Of full contractual capacityLegal authority to contract As owner & in possession of asset legal representative (agent, guardian etc.) CONTRACTUAL EXPRESSION

Offer

AcceptanceClearCorresponding of offer & acceptance

SUBJECT

MATTER

Goods/

asset

Price/

consideration

Something of value

Ascertainable

Legal

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Mutual consent

AVOID

Interest

Gambling

Lawful Contractual Objective

CONTRACT

AS BASIS OF TRANSACTIONS

Other prohibitionsEg: liquor, porkUncertainties

General Principles in Transaction

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Freedom of Contract

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Freedom from

Qimar & Maysir

Freedom fromGhararEntitlement toEqual, Adequate,Accurate Info.

Freedom from

DhararFreedom from RibaPromote MaslahahFreedom fromPrice control & ManipulationFreedom to ContractEntitlement toTransaction at Fair PriceCharacteristics of Shariah-compliant Banking and Financial System

Promote Brotherhood

A system grounded on moral and ethics

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Sales-based Contracts

Lease-based Contracts

Equity-based Contracts

Fee-based Contracts

Hybrid Contracts

BBA – deferred sale; Murabahah – cost-plus sale; Bai al-Inah, Bai al-TawarruqIjarah Wa Iqtina; Ijarah Thumma Al-Bai’, Ijarah Muntahia BitamleekMudarabah, MusyarakahKafalah/Dhaman (Guarantee); Wakalah (agency)Musyarakah Mutanaqisah (Dimishing Partnership), AITAB etc.

Deposit-taking ContractsWadi’ah Yad Amanah; Wadiah Yad

Dhamanah, Mudarabah; al-Qard

Promise/Undertaking

Wa`ad

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Various Forms of Islamic Contracts Used in Banking

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Conceptual Balance Sheet of an IFI

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Assets

Liabilities

Trade Finance

(Mudarabah/ BBA)

Custodial Services(Amanah/Wadiah)Asset-backedSecurities(Ijarah/Salam/Istisna)Deposits/Investments(Mudarabah/ Wakalah)Fund Management/Private Equity VentureCapital(Special Mudarabah/ Musyarakah)Fund Management(Mudarabah/ Special Mudarabah/Musyarakah)Fee-based Services/Advisory(Wakalah/Jualah/Kafalah)Capital Owners’ Equity(Musyarakah)

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Deposit-taking Contracts

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DEPOSIT SERVICES PRODUCTS

Saving/ Current

Account

Investment

Account

Negotiable

Islamic DepositCertificate(NIDC)Sale & Buy BackArrangement(SBBA)QardorWadi’ah YadDhamanahMudarabahBay’ al-`inahBay’ al-Dayn

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Qardh (Loan)

The bank is not allowed to promise any return as it will be constituted as

riba

Since it is a loan, the bank is allowed to utilise the fund and

return back the deposit to the customer when they request them

Qardh means non-interest bearing loan or benevolent loan

The borrower is only obliged to pay the loan at its original amount to the lender within the agreed stipulated period of time

In the

Qard

saving account, the bank will take deposit from the client and it is

considered as a loan to the bank

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WADI’AH

Types:

Wadi`ah Yad Amahah

Wadi`ah Yad Dhamanah

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How Bank Can Benefit From

Wadiah

Contract?

The

Wadi`ah Contract is combined with Guarantee contract (Dhaman or Kafalah)

Wadi`ah

Yad Dhamanah(Guaranteed Safe Custody)

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DHAMAN / KAFALAH

Wadia’ah + Dhaman:

it converts the whole concept of wadi`ah

to ‘guaranteed safe custody

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Wadi`ah Yad Dhamanah

The custodian is a trustee and guarantor to safeguard the deposited asset.

The deposited asset/property need not be separated/segregatedThe deposited asset/property can be used for trading etc.The custodian has a right to any income derived from the

utilisation

of the deposited assetDepositor can take back the deposited asset at any timeWadi`ah Yad Dhamanah is like Qard (loan); therefore all principle of loan would be applicableThus as a loan WYD cannot generate any pre-agreed benefit/income to the depositor, over and above the principal amount of deposit, otherwise tantamount to riba

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Saving Account

Current Account

Shariah Issues

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Mudarabah

Mudarib is only liable for negligence or transgression or violation of contract terms

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Issues To Be Considered

Investment from certain individuals and companies

Investment of a minor

Advertisement of gift prior to the contractGuaranteeing profit/capital?Variation of the ratio of profit and loss sharing Pre-mature withdrawal of capital-mudarabah

investment

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Other Deposit Products / Structures

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Commodity

Murabahah

Deposit-iStructured based on TawarruqStructured Deposit ProductsPure Al-Qard Structures

Absolutely no returns or benefits provided to depositors

E.g., Al-Rajhi Malaysia’s savings and current accountsCombination StructuresEach deposit split into stipulated portions (Mudarabah & Qard)E.g., KFH Malaysia’s savings and current accounts

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Sales-based Contract

(Al-Bay`)

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Common Types of Sale-based contract

Murabahah

& Bay`

Bithaman

AjilBay` SalamBay` Istisna’Bay` `Inah

Bay`

Tawarruq23

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Murabahah

A sale; all sale conditions apply

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Basic Shari`ah Rules on Sales

Subject of sale must be existing at time of sale

Subject of sale must be owned by seller at time of sale

Subject of sale must be in physical or constructive possession of seller at time of saleSale must be instant and absoluteSubject of sale must be of valueSubject of sale cannot be for haram useSubject of sale must be specifically known and identifiedCertainty of deliveryCertainty of priceSale must be unconditional

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Application of Murabahah in Finance

(Murabahah To The Purchase Orderer )

It is a sale in which two parties or more negotiate and promise each other to execute an agreement according to which the

orderer asks the purchaser to purchase an asset of which the latter will take legal possession. The orderer promises the purchaser to purchase the asset from him and give the ordered a profit thereon. The two parties would conclude a sale after the possession of the ordered to the asset.

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Murabahah Trade Financing

Customer approaches

bank and promises

to

buy commodity from bankCustomer buys commodity via murabahah on deferred payment termsBank buys commodity on cash basisTrader transfersCommodity to BankCustomer identify the commodity

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Bay` al-Inah?

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Bay’ al-Inah: Personal financing

RM 100,000

RM 150,000

How can I borrow RM100,000 to get married?

Bank sells asset

Customer pays on deferred

Customer sells back asset

Banks Pays on cash basis

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Bay’ Al Inah

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Tawarruq

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Tawarruq Model of Home Financing

Customer

Electrical Appliances Wholesaler

2.Electrical Appliances

2.RM350,000 Deferred

4.RM200,000

4.Property

1.RM200,000

1.Electrical Appliances worth RM200,000

3.Electrical Appliances

3.RM200,000

Property Owner/Developer

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US$ 1 Million Cash

US$ 1.1 Million deferred

US$ 1 Million Cash

Broker B

Broker A

Commodity Murabahah Deposit-i

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Ruling on Tawarruq

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Bai’ Bithaman Ajil (BBA)

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Property Sale Agreement (PSA)

Sales & Purchase Agreement (S&P)

1. Beneficial ownership

1. 10% down payment

3. BBA price (deferred payment)

Property Purchase Agreement (PPA)

2. House

2. Cash price (90% balance)

3. House

BANK

Customer

5. Bank pay developer the 90% balance

BBA HOME FINANCING MODUS OPERANDI

Developer/Vendor

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Financing Facility: Islamic Banking vs. Conventional Banking

Fin. Amount : RM100K

Tenure : 25 yrs

(1981-2005)

Single Rate : BFR-0Ceiling Rate : 9.90Ta’widh : 1% Total Selling PriceLoan Amount : RM100KTenure : 25 yrs (1981-2005)Single Rate : BLR-0Ceiling Rate : -no-Penalty : 8% compoundedTotal Repayment RM240,996.96

RM245,982.72

Islamic Home Financing Convensional Home Loan

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MOVEMENT OF BASED LENDING RATE (BFR)

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Lease-based Contract

(al-

Ijarah

)

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Ijarah (Leasing)

Ijarah

contract is a form of exchange contract (`

aqd al mu`awadah) – usufruct vs. rent.Ijarah (Operating Lease) means leasing of asset pursuant to a contract under which a specified permissible benefit in the form of a usufruct is obtained for a specified period in return for a specified permissible consideration.It is a manfaah (usufruct) type of contract whereby a

lessor (owner) leases out an asset to its customer at an agreed rental fee and pre-determined lease period upon the `

aqad (contract). The ownership of the leased equipment remains in the hands of the lessor.

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Ijarah Muntahiah Bi Tamlik (Financial Lease)  

Ijarah

Muntahiah Bi Tamlik has similar rules to the ordinary Ijarah except that it is associated with a promise by the lessor to transfer ownership at the end of the Ijarah period via a separate sale agreement or gift.

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1. Airline places order with airplane manufacturer

2. Airline approaches bank to seek financing

3. Bank pays airplane manufacturer

4. Airplane manufacturer delivers airplane to bank

5. Bank lease airplane to airline

6. Airline pays rental

7. At the end of lease term airline take ownership

DIRECT LEASING

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Ijarah Mausufah Fi Zimmah (Forward Lease)

Ijarah

Mausufah Fi Zimmah means an ijarah contract which is executed for an asset undertaken by the lessor to be delivered to the lessee according to accurate specifications, even if the asset is not owned by the lessor. 

During the period that the leased asset/property is under construction, the

lessor may ask the lessee to pay a certain portion of pre agreed lease rental as a forward lease. The forward lease rental payment will be considered as a debt to the lessor until the delivery of the leased asset to the lessee. Ijarah Mausufah Fi Zimmah can be in a form of Ijarah or Ijarah Muntahiyah Bi Tamlik.

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Salient feature of Ijarah

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Cont’d…

The purpose and mode of usage should be agreed upfront

The lessor could be the legal owner or the equivalent (agent, natural or legal guardian) The leased asset is a trust in the hands of the lessee.The rental payment commences after the delivery of the leased asset, actually or constructively. The lease contract terminates upon the loss / non-existence of the usufruct Lease contract is a bilateral contract. Any termination, in normal cases, must be mutually agreed.

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Equity-based & Hybrid Contract

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Musharakah

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Musharakah (Profit Loss Sharing)

Venture

Partners

Capital

Profit n Loss SharingProfit or LossApplication: Home Financing:

Diminishing

Musharakah Sukuk Equity Shares Project Financing Letter of Credit

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Musyarakah Mutanaqisah

(Diminishing Partnership)

Musyarakah

mutanaqisah is a form of Musyarakah (partnership) in which one of the partner promises to purchase the equity share of other partner gradually until the title of the equity is completely transferred to him. This transaction starts with the formation of partnership, after which buying and selling of the equity take place between the two partners. One partner may lease his share of the asset to the other partner on Ijarah (lease) basis. The partnership will come to an end with one partner being the sole owner of the asset or business venture.

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90%

10%

Bank leases its 90% share of property to customer

Customer pays rent for usage of Bank’s 90% share of property

Customer gradually buys share of property from Bank

Customer’s monthly installment payments

Musyarakah Mutanaqisah

(Modus Operandi)100%

0%

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100

90

80

70

60

50

40

30

20

10

ILLUSTRATION of

Musharakah Mutanaqisah

10%

90%

80%

70%

60%

50%

40%

Customer now

owns 100%

of the Assets

Bank’s Share

Customer’s Share

30%

20%

10%

Bank’s share

= “0”

MM

The asset is now mine. Thanks to

Islamic Bank

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No

BBA

Musharakah

Mutanaqisah1Involves a Sale ContractInvolves Partnership, Leasing and Sale contracts2

Contract – Buyer & Seller

Contract – Partnership3Require underlying assets to complete Aqad (APA & ASA)Underlying assets not required4With Selling Price – FixedNo Selling Price – Flexible5Security documentsAsset Purchase AgreementAsset Sale AgreementCharge/Deed of AssignmentSecurity documents

MM Co-Ownership AgreementCharge/Deed of Assignment6Property belongs to the customer

Property belongs to both the customer and the bank according to the percentage of ownershipDifferences Between Murabahah & MM?

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Fee-Based

Contract

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Delegation (al-Wakalah)

Wakalah

is a contract of agency which gives the power to a person to nominate another person to act on his behalf as long as he is alive based on the agreed terms and conditions.

Wakalah is commonly used in Letter of Credit-i Delegation Al-Wakalah has four pillars:

The Delegator Al-

MuwakkilThe Delegatee Al-WakeelThe wording of the DelegationThe subject of the Delegation

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Advising Bank

Issuing Bank

Seller

(Beneficiary)

Buyer

(Applicant)

Apply LCIssue LCAdvice LCNeed to produceRequired documentsEg. commercial invoice BL (Bill of landing), etcLetter of Credit (LC)- Wakalah

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Other Supporting

Contract

(

Wa`ad)

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Wa`ad (Promise)

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WA`AD

(PROMISE)

1

st

Group(Hanafis, Shafi`is, Hambalis and some Maliki jurists)Fulfilling a promise is noble but it is neither mandatory nor enforceable through a court of law2nd Group (Samurah b. Jundub, Umar Abdul Aziz,Hasan al-Basri, a;-

Ashwa

’, Ishaq Rahwaih, Al-Bukhari & some Malikis)Fulfilling a promise is mandatory & the promisor is under a moral and legal obligation to honor his promise.Promise is not binding under normal circumstances but becomes binding where the promisor has caused promisee to incur certain expenses or undertake work or any form of liability3rd Group (Some Maliki Jurists)4th Group (Islamic Fiqh Academy –Generally accepted view)

Fulfilling a promise is allowed subject to certain conditions as enumerated in the next slides

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Promise in commercial dealings are binding subject to the following conditions:

It should be one-sided promise

The promise must have caused the promisee

to incur certain liabilities for the

promisee to seek enforcement on the promisorIf the promise is to purchase something the actual sale must take place at the appointed time by the exchange of offer and acceptance. A mere promise itself should not be taken as a concluded saleIf the promisor bakes out of his promise, the court may force him either to purchase the commodity or pay actual damages to the seller. The actual damages include the monetary loss suffered by the promisee, but shall not include the opportunity cost.

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Islamic Fiqh Academy Position on Promise

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Takaful

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Premium

Peace of mind

Compensation

Insurance Company

Policy holder

BASIC MECHANISM OF INSURANCE

No Claim

Profit

Calamity

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Conventional Insurance: Not

Shari’ah-compliant

Element of uncertainty (gharar)

There is

uncertainty of what the insurance policy-holder is “buying” or paying forIf no loss occurs  Policy-holder receives nothingIf loss occurs  Policy-holder gets compensation in varying amounts

Insurance Company

Insurance Policy-holderPremium

CoverageElement of gambling (maysir)The insurance company is gambling that total premiums collected will exceed total claims and thus producing underwriting surplus (profit)Total claims is predominantly affected by chance (will of God)Element of riba

Insurance fund commonly invested in interest-bearing securities

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ISLAMIC ALTERNATIVE TO INSURANCE

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SHARI`AH LEGITIMACY OF TAKAFUL

ِوَتَعَاوَنُواْ عَلَى الْبرِّ وَالتَّقْوَى وَلاَ تَعَاوَنُواْ عَلَى الإِثْمِ وَالْعُدْوَان

“and help ye one another in righteousness and piety, but help ye not one another in sin and rancour” (5:2).

Hadith

“…tie the camel, then submit (tawakkal) to the will of God.”Importance of risk mitigationIslamic Legal Maximالضرر يزال

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Takaful

Participants

Contribute via unilateral contract (

tabarru’at

)

Manages fund for a

fee

or

share in profits

on investment

Takaful

Fund

Takaful

Operator

BASIC DESCRIPTION OF TAKAFUL INSDUSTRY

Takaful

participants contribute to a

takaful

fund based on the concept of mutual assistance

The contribution is done via reciprocal/mutual donation (

tabarru’at

) and does not represent a commercial “sale of coverage”

Takaful

entails a

unilateral, charitable

contract (

tabarru’at

) in contrast with the conventional insurance contract which is a

bilateral exchange

contract (

mu’awadat

)

Gharar

is tolerated

in a

charitable unilateral

contract

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Takaful: Wakalah Model

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-

retakaful

-reserves-claims-investment income-stabilization reserves

Takaful Participants

Contribute

Risk Fund

Manage

Takaful Operator

Wakalah fee

1

st

contract

Tabarru

`

2

nd

Contract

Wakalah

Surplus

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Unilateral contract

Valid though no acceptance and consideration from the recipient

Takaful Participants

Contribute

Takaful Funds

Manage

Takaful Operator

Invest

Pay Claims

2

nd

Contract

Mudarabah

1

st

contract

Tabarru

`

Profit, if any, is shared between the two based on certain ratio or percentage & loss, if any, will be borne by the capital provider alone

Takaful: Mudarabah Model

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Takaful vs. Insurance

Basis

Conventional Insurance

Takaful

Principles

Non compliance with Shari`ah principlesIn compliance with Shari`ah principlesContract

Buying & SellingTabarru` , Wakalah &

MudarabahObligation of Company

Guarantor to insured

Fund Manager

Guarantee

Given By Company

Participants Mutually guarantee each other

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Islamic Investment

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Technical Meaning

Sukuk refers to securities, notes, papers or certificates, with features of liquidity and tradability (except for

salam

and murabahah sukuk)Literal MeaningSukuk is the plural of sak which means certificates. Other similar terms:Taskik – process of dividing assets into papers (sukuk)Tawriq – to render something into cash

SUKUK

AAOIFI“Investment sukuk are certificates of equal value representing undivided shares in ownership of tangible assets, usufructs and services (in the ownership of) the assets of particular projects or special investment activity”Malaysian Securities Commission“A document or certificate which represents the value of an asset” Asset – may include financial asset such as receivables and debts, as well as non financial assets like tangible assets, usufructs and services.

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Income Generating Project

Sukuk Investors

Obligor/Project Developer

Issuer/Trustee

Sukuk

Issue Proceeds

Proceeds fromSukuk Sales

Income from projectBASIC STRUCTURE OF SUKUK

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Comparing SUKUK to BONDS

Sukuk

Bonds

1.

Holder owns assets1. Holder owns cash flow only2. Use a variety of contracts to create financial obligations between issuer and investors; e.g. Sale, lease, equity partnership, joint-venture etc.

2. Simply use

a loan contract to create indebtedness3. Return linked to profit elements in-built in the sale, lease or partnership3. Return linked to interest charged out of the loan contract4. Instrument may be equity or debt depending on underlying contract4. It is a Debt instrument5. Tradability of the sukuk depends on the nature of the underlying asset

5. No restriction on the tradability6. Investment in Shari`ah-compliant activities

6. Proceeds are invested in any business without restrictions

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The Nature and Type of Asset represented by the

Sukuk

The Underlying Contracts in the

Sukuk

StructuresThe Technical and Commercial Features of the SukukDebt-basedTangible assets

Usufructs

Rights in investment projectsSpecial investment activitiesAsset-based (normal)Asset-Backed (ABS)Hybrid Structure(convertible & exchangeble )Sales-basedLease-basedPartnership-basedAgency-based

Bases for Sukuk Classification

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Types of

Sukuk

Asset-Based

Asset-Backed

HybridSales-BasedLease-BasedPartnership-BasedAgency-Based

Salam

IstisnaIjarah Muntahiya bi TamlikIjarah Mawsufah fi ZimmahMusharakahWakalah bil IstithmarExchangeable

Convertible

BBA

Murabahah

Ijarah

Mudarabah

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MUNIF Basic Structure

MUNIF

Debt (Selling price) is evidenced by issuance of MUNIFs

May sell MUNIF

in Secondary Market

(Bay al-

Dayn)Primary SubscriberIssuer1. Issuer identified asset3. Subscriber cum tender panel member provide proceeds5. Subscriber resale the asset at selling price (mark-up, i.e. Murabahah)

2. Sell the asset on tendered basisTPM/Underwriters

4 Disburse the purchase price

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Primary Subscriber

Sukuk

Issuer

Investors

3. Issue

Sukuk

Ijarah as evidenced of undivided proportionate ownership of leased asset + right to ijarah rental stream1. Sale of assets to the primary subscribers2. Lease back assets to issues in return for ijarah rental (periodic distribution)Secondary Market TradingBASIC STRUCTURE: IJARAH SUKUK

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STRUCTURE OF MUDHARABAH SUKUK

CAPITAL

Investors

(Rabb al-Mal)

Issuer

(Mudarib)

Outcome Of ProjectIssues Mudarabah Sukuk

Contract of Mudarabah

Profit shared in accordance to pre-agreed proportions(X,Y)

Loss?

borne totally by

rabb

al-mal

Y%

to

rabb

al mal

X% to Mudarib

1

3

Invests in project

2

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Islamic REITs

Rental from mixed activities

(

halal + haram) Rental fromhalal activities

Return from Islamic REITs

Fund ManagementMethod to calculate rental From non halal activities Instruments used in deposit, investment and financing i-REITTakaful ProtectionRisk management issue

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REITs

Net Property

Income

Ownership

Of Property

Returns

InvestmentUnit HolderManagement services

Management fees

Safeguard unit holder’s interest

Trustee fees

Properties

Maintenance and Management Services

Maintenance and management fees

Rental Payment

Rent

Trustee

Manager

Tenant

Property

Manager

Shariah advisors

Advise on Shariah issues

Islamic REITs

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Shariah

Issues involving Rental from

Lessee who conduct Mixed Activities

Principle

Method of calculationThe core activity is halal but small portion of the whole activity is not- halal

The non

halal ration must not exceed 20% of the total rental from Islamic REITS`Umum BalwaMaslahahBenchmarkingIn calculating the ratio of non-halal activity: usage of the space, length of service and others are appliedIf the width of the supermarket is 10,000 sqf,and the designated area for sale of liquor is1000

sqft, namely 10%. It is still within the acceptable ratio

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Client’s investment

100%

BANK

Client

Higher Return

Investments

equity, derivatives e.g.Options, swaps, futures& forwardFixed IncomeInvestmentsCommodity murabahah Sukuk, Islamic ABS (Asset-Backed Securities)Invest 90%

Invest 10%

Expected Return 10%Expected Return x%

Bank acts as agent (

wakalah

contract) in investing depositor’s money & charges a fee for the service

Wakalah bi al-istithmar-based structured investment

Principal Protection = (90% investment + 10% return)

Islamic Structured Products

Fund-Mobilization Stage

Investment Activities Stage

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Structuring

Identifying contract and principle

Fund raising stage –

Wakalah

/MudarabahInvestment activities– Tawarruq, purchasing basket of shares, embedded Islamic Option (wa`d or urbun etc)Wa’d, Wa’dan or Muwa`adah?Underlying aset and investment activitiesImplementation

Usage

Each contract has to be executed separately & follow the right orderCapital protection objectivesEfficient fund managementThird party guarantee (subsidiary to principal/other branch of an international IFI) Replacement of securities (Shariah compliance status changes)Wa‘d to sell and buy equity based on ‘benchmark’ : Iqnorance of priceEarly settlement: Justification?Shariah Issues

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THANK YOU